Abstract
The Federal Circuit Courts are apparently split on whether 42 U.S.C. § 1983—which provides a civil cause of action for constitutional deprivation of rights— applies to actions brought under the Contracts Clause in article 1 of the U.S. Constitution. The “split” has existed since 2017 and a new case out of the Sixth Circuit seeks to end that constitutional discrepancy via cert petition. The case, however, is a suboptimal vehicle for ending this circuit court stalemate.
The Sixth and Fourth Circuits have held that Section 1983 does not apply to actions brought under the Contracts clause. The Ninth Circuit has explicitly held that it does. And the Second, Third and Eighth Circuits have applied Section 1983 to Contracts Clause claims without expressly addressing the issue.
But the “split” created by both the Sixth and Fourth Circuits is based on flimsy precedent. The holdings are based on curious interpretations of prior case law and conclusions were reached in breach of the principle of party presentation, without the benefit of the parties’ fulsome arguments. A proper hearing of a case with an appropriate procedural history would undoubtedly clear this “split” in favor of litigants seeking to enforce their rights under the Contracts Clause.
In short order, the relevant legal authorities indicate that there is no split at all.