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Subject: X, 89-1555--OPINION



DENNIS v. HIGGINS



NOTICE: This opinion is subject to formal revision before publication in
the preliminary print of the United States Reports.  Readers are requested
to notify the Reporter of Decisions, Supreme Court of the United States,
Washington, D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print goes to
press.

SUPREME COURT OF THE UNITED STATES


No. 89-1555



AMARK E. DENNIS, PETITIONER v. MARGARET L. HIGGINS, DIRECTOR, NEBRASKA
DEPARTMENT OF MOTOR VEHICLES, et al.

Bon writ of certiorari to the supreme court of nebraska

C[February 20, 1991]



A Justice White delivered the opinion of the Court.

B This case presents the question whether suits for violations of the
Commerce Clause may be brought under 93 Stat. 1284, as amended, 42 U.9S.9C.
91983.  We hold that they may.

CI
D Petitioner does business as an unincorporated motor carrier with his
principal place of business in Ohio.  He owns tractors and trailers that
are registered in Ohio and operated in several States including Nebraska.
On December 17, 1984, he filed a class-action suit in a Nebraska trial
court challenging the constitutionality of certain "retaliatory" taxes and
fees imposed by the State of Nebraska on motor carriers with vehicles
registered in other States and operated in Nebraska. {1}  In his complaint,
petitioner claimed, inter alia, that the taxes and fees constituted an
unlawful burden on interstate commerce and that respondents were liable
under 42 U.9S.9C. 91983.  Petitioner sought declaratory and injunctive
relief, refunds of all retaliatory taxes and fees paid, and attorney's fees
and costs.
    After a bench trial based on stipulated facts, the court concluded that
the taxes and fees at issue violated the Commerce Clause "because they are
imposed only on motor car riers whose vehicles are registered outside the
State of Nebraska, while no comparable tax or fee is imposed on carriers
whose vehicles are registered in the State of Nebraska."  App. to Pet. for
Cert. 29a.  It therefore permanently enjoined respondents from "assessing,
levying, or collecting" the taxes and fees.  Id., at 30a.  The court also
held that petitioner was entitled to attorney's fees and expenses under the
equitable "common fund" doctrine.  The court, however, entered judgment for
respondents on the remaining claims, including the 91983 claim.  Petitioner
appealed the dismissal of his 91983 claim, and respondents cross-appealed
the trial court's allowance of attorney's fees and expenses under the
common fund doctrine.  Respondents did not, however, appeal the trial
court's determination that the retaliatory taxes and fees violated the
Commerce Clause.
    The Supreme Court of Nebraska affirmed the dismissal of petitioner's
91983 claim, but reversed the trial court's allowance of fees and expenses
under the common fund doctrine.  See Dennis v. State, 234 Neb. 427, 451
N.9W. 2d 676 (1990).  With respect to the 91983 claim, the Nebraska Supreme
Court held that "[d]espite the broad language of 91983 .9.9. there is no
cause of action under 91983 for violations of the commerce clause."  Id.,
at Z, 451 N.9W. 2d, at 678.  The court relied largely on the reasoning in
Consolidated Freightways Corp. of Delaware v. Kassel, 730 F. 2d 1139 (CA8),
cert. denied, 469 U.9S. 834 (1984), which held that claims under the
Commerce Clause are not cognizable under 91983 because, among other things,
"the Commerce Clause does not establish individual rights against
government, but instead allocates power between the state and federal
governments."  730 F. 2d, at 1144.
    As the Supreme Court of Nebraska recognized, see 234 Neb., at Z, 451
N.9W. 2d, at 678, there is a division of authority on the question whether
claims for violations of the Commerce Clause may be brought under 91983.
{2}  We granted certiorari to resolve this issue, 495 U.9S. Z (1990), and
we now reverse.

NII
D A broad construction of 919839 {3} is compelled by the statutory
language, which speaks of deprivations of "any rights, privileges, or
immunities secured by the Constitution and laws."  (Emphasis added.)
Accordingly, we have "repeatedly held that the coverage of [91983] must be
broadly construed."  Golden State Transit Corp. v. Los Angeles, 493 U.9S.
Z, Z (1989) (slip op., at 2).  The legislative history of the section also
stresses that as a remedial statute, it should be "9`liberally and
beneficently construed.'9"  Monell v. New York City Dept. of Social
Services, 436 U.9S. 658, 684 (1978) (quoting Rep. Shellabarger, Cong.
Globe, 42d Cong., 1st Sess., App. 68 (1871)). {4}
    As respondents argue, the "prime focus" of 91983 and related provisions
was to ensure "a right of action to enforce the protections of the
Fourteenth Amendment and the federal laws enacted pursuant thereto,"
Chapman v. Houston Welfare Rights Organization, 441 U.9S. 600, 611 (1979),
but the Court has never restricted the section's scope to the effectuation
of that goal.  Rather, we have given full effect to its broad language,
recognizing that 91983 "provide[s] a remedy, to be broadly construed,
against all forms of official violation of federally protected rights."
Monell, supra, at 700-701.  Thus, for example, we have refused to limit the
phrase "and laws" in 91983 to civil rights or equal protection laws.  See
Maine v. Thiboutot, 448 U.9S. 1, 4, 6-8 (1980).
    Even more relevant to this case, we have rejected attempts to limit the
types of constitutional rights that are encompassed within the phrase
"rights, privileges, or immunities."  For example, in Lynch v. Household
Finance Corp., 405 U.9S. 538 (1972), we refused to limit the phrase to
"personal" rights, as opposed to "property" rights. {5}  We first noted
that neither the words nor the legislative history of the statute
distinguished between personal and property rights.  Id., at 543.  We also
rejected that distinction because of the "virtual impossibility" of
applying it, particularly in "mixed" cases involving both types of rights.
Id., at 550-551.  We further concluded that "the dichotomy between personal
liberties and property rights is a false one. .9.9. The right to enjoy
property without unlawful deprivation, no less than the right to speak or
the right to travel, is in truth a `personal' right, whether the `property'
in question be a welfare check, a home, or a savings account."  Id., at
552.  See also United States v. Price, 383 U.9S. 787, 800-806 (1966).
    Petitioner contends that the Commerce Clause confers "rights,
privileges, or immunities" within the meaning of 91983.  We agree.  The
Commerce Clause provides that "Congress shall have Power . . . [t]o
regulate Commerce with foreign Nations, and among the several States, and
with the Indian Tribes."  U.9S. Const., Art.9I, 98, cl.93.  Although the
language of that Clause speaks only of Congress' power over commerce, "the
Court long has recognized that it also limits the power of the States to
erect barriers against interstate trade."  Lewis v. BT Investment Managers,
Inc., 447 U.9S. 27, 35 (1980). {6}
    Respondents argue, as the court below held, that the Commerce Clause
merely allocates power between the Federal and State Governments, and does
not confer "rights."  Brief for Respondents 14-17.  There is no doubt that
the Commerce Clause is a power-allocating provision, giving Congress
pre-emptive authority over the regulation of interstate commerce.  It is
also clear, however, that the Commerce Clause does more than confer power
on the Federal Government; it is also a substantive "restriction on
permissible state regulation" of interstate commerce.  Hughes v. Oklahoma,
441 U.9S. 322, 326 (1979).  The Commerce Clause "has long been recognized
as a self-executing limitation on the power of the States to enact laws
imposing substantial burdens on such commerce."  South-Central Timber
Development, Inc. v. Wunnicke, 467 U.9S. 82, 87 (1984).  In addition,
individuals injured by state action that violates this aspect of the
Commerce Clause may sue and obtain injunctive and declaratory relief.  See,
e.9g., McKesson Corp. v. Division of Alcoholic Beverages and Tobacco, 496
U.9S. Z, Z (1990) (slip op., at 10).  Indeed, the trial court in the case
before us awarded petitioner such relief, and respondents do not contest
that decision.  We have also recently held that taxpayers who are required
to pay taxes before challenging a state tax that is subsequently determined
to violate the Commerce Clause are entitled to retrospective relief "that
will cure any unconstitutional discrimination against interstate commerce
during the contested tax period."  Id., at Z (slip op., at 31).  This
combined restriction on state power and entitlement to relief under the
Commerce Clause amounts to a "right, privilege, or immunity" under the
ordinary meaning of those terms. {7}
    The Court has often described the Commerce Clause as conferring a
"right" to engage in interstate trade free from restrictive state
regulation.  In Crutcher v. Kentucky, 141 U.9S. 47 (1891), in which the
Court struck down a license requirement imposed on certain out-of-state
companies, the Court stated: "To carry on interstate commerce is not a
franchise or a privilege granted by the State; it is a right which every
citizen of the United States is entitled to exercise under the Constitution
and laws of the United States."  Id., at 57.  Similarly, Western Union
Telegraph Co. v. Kansas ex rel. Coleman, 216 U.9S. 1, 26 (1910), referred
to "the substantial rights of those engaged in interstate commerce."  And
Garrity v. New Jersey, 385 U.9S. 493, 500 (1967), declared that engaging in
interstate commerce is a "righ[t] of constitutional stature."  More
recently, Boston Stock Exchange v. State Tax Comm'n, 429 U.9S. 318 (1977),
held that regional stock exchanges had standing to challenge a tax on
securities transactions as violating the Commerce Clause because, among
other things, the exchanges were "asserting their right under the Commerce
Clause to engage in interstate commerce free of discriminatory taxes on
their business and they allege that the transfer tax indirectly infringes
on that right."  Id., at 320, n.93.
    Last Term, in Golden State Transit Corp. v. Los Angeles, 493 U.9S. Z
(1989), we set forth three considerations for determining whether a federal
statute confers a "right" within the meaning of 91983:

E"In deciding whether a federal right has been violated, we have considered
[1] whether the provision in question creates obligations binding on the
governmental unit or rather `does no more than express a congressional
preference for certain kinds of treatment.'  Pennhurst State School and
Hospital v. Halderman, 451 U.9S. 1, 19 (1981).  [2] The interest the
plaintiff asserts must not be `too vague and amorphous' to be `beyond the
competence of the judiciary to enforce.'  Wright v. Roanoke Redevelopment
and Housing Authority, 479 U.9S. 418, 431-432 (1987).  [3] We have also
asked whether the provision in question was `intend[ed] to benefit' the
putative plaintiff.  Id., at 430; see also id., at 433 (O'Connor, J.,
dissenting) (citing Cort v. Ash, 422 U.9S. 66, 78 (1975)."  Id., at Z.
F

See also Wilder v. Virginia Hospital Association, 496 U.9S. Z, Z (1990)
(slip op., at Z).  Respondents do not dispute that the first two
considerations weigh in favor of recognition of a right here, but seize
upon the third con sideration--intent to benefit the plaintiff--arguing
that the Commerce Clause does not confer rights within the meaning of 91983
because it was not designed to benefit individuals, but rather was designed
to promote national economic and political union.  Brief for Respondents
19-24.
    This argument, however, was implicitly rejected in Boston Stock
Exchange, supra, at 321, n.93, where we found that the plaintiffs were
arguably within the "zone of interests" protected by the Commerce Clause.
Moreover, the Court's repeated references to "rights" under the Commerce
Clause constitute a recognition that the Clause was intended to benefit
those who, like petitioner, are engaged in interstate commerce.  The
"Constitutional protection against burdens on commerce is for [their]
benefit .9.9.9."  Morgan v. Virginia, 328 U.9S. 373, 376-377 (1946).  As
Justice Jackson, writing for the Court, eloquently explained:

E
    "Our system, fostered by the Commerce Clause, is that every farmer and
every craftsman shall be encouraged to produce by the certainty that he
will have free access to every market in the Nation, that no home embargoes
will withhold his exports, and no foreign state will by customs duties or
regulations exclude them.  Likewise, every consumer may look to the free
competition from every producing area in the Nation to protect him from
exploitation by any.  Such was the vision of the Founders; such has been
the doctrine of this Court which has given it reality."  H.9P. Hood & Sons,
Inc. v. Du Mond, 336 U.9S. 525, 539 (1949).
F

    Respondents attempt to analogize the Commerce Clause to the Supremacy
Clause, Brief for Respondents 17-18, which we have held does not by itself
confer any "rights, privileges, or immunities" within the meaning of 91983.
See Golden State, supra, at Z (slip op., at Z); Chapman, 441 U.9S., at 613.
The Supremacy Clause, however, is "not a source of any federal rights";
rather, it "secure[s] federal rights by according them priority whenever
they come into conflict with state law."  Ibid.  By contrast, the Commerce
Clause of its own force imposes limitations on state regulation of
commerce, and is the source of a right of action in those injured by
regulations that exceed such limitations. {8}
    Respondents also argue that the protection from inter ference with
trade conferred by the Commerce Clause cannot be a "right" because it is
subject to qualification or elimination by Congress.  Brief for Respondents
21.  That argument proves too much, however, because federal statutory
rights may also be altered or eliminated by Congress.  Until Congress does
so, such rights operate as "a guarantee of freedom for private conduct that
the State may not abridge."  Golden State, supra, at Z (slip op., at 9).
The same is true of the Commerce Clause. {9}
CIII
D We conclude that the Supreme Court of Nebraska erred in holding that
petitioner's Commerce Clause claim could not be brought under 42 U.9S.9C.
91983.  The judgment of the Supreme Court of Nebraska is therefore
reversed, and the case is remanded for further proceedings not inconsistent
with this opinion.

It is so ordered.


T







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1
    9The taxes and fees at issue were imposed pursuant to Neb. Rev. Stat.
960-305 (1984), which has since been amended.  The taxes and fees were
considered "retaliatory" because they were imposed on vehicles registered
in certain other States (Arizona, Arkansas, Idaho, Nevada, New York, Ohio,
Oregon, Pennsylvania, and Wyoming) in an amount equal to the "third
structure taxes" imposed by those States on Nebraska-registered vehicles.
"Third structure taxes" are taxes and fees imposed in addition to
registration fees and fuel taxes (so-called "first structure" and "second
structure" taxes).

2
    9Compare Kraft v. Jacka, 872 F. 2d 862, 869 (CA9 1989); J9&9J Anderson,
Inc. v. Town of Erie, 767 F. 2d 1469, 1476-1477 (CA10 1985); and
Consolidated Freightways Corp. of Delaware v. Kassel, 730 F. 2d 1139 (CA8),
cert. denied, 469 U.9S. 834 (1984) with Continental Illinois Corp. v.
Lewis, 838 F. 2d 457, 458 (CA11 1988), vacated on other grounds, 494 U.9S.
Z (1990); Martin-Marietta Corp. v. Bendix Corp., 690 F. 2d 558, 562 (CA6
1982); and Kennecott Corp. v. Smith, 637 F. 2d 181, 186, n.95 (CA3 1980).
See also Private Truck Council of America, Inc. v. Quinn, 476 U.9S. 1129
(1986) (White, J., joined by Brennan and O'Connor, JJ., dissenting from
denial of certiorari) (noting conflict of authority).

3
    9Section 1983 provides:
    "Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law, suit in equity,
or other proper proceeding for redress."  42 U.9S.9C. 91983.

4
    9The dissent contends that the legislative history of 91983 supports
the proposition that 91983 does not apply to constitutional provisions that
allocate power.  See post, at 4-6.  That argument is untenable.  The
dissent chiefly relies upon a partial quotation of a statement made by
Representative Shellabarger, one of the principal sponsors of the statute.
In context, the statement reads:
    "My next proposition is historical, and one simply in aid and support
of the truth of the first [i.9e., that "Congress is bound to execute, by
legislation, every provision of the Constitution, even those provisions not
specially named as to be so enforced"].  It is that the United States
always has assumed to enforce, as against the States, and also persons,
every one of the provisions of the Constitution.  Most of the provisions of
the Constitution which restrain and directly relate to the States, such as
those in tenth section of first article, that `no State shall make a
treaty,' `grant letters of marque,' `coin money,' `emit bills of credit,'
&c., relate to the divisions of the political powers of the State and
General Governments.  They do not relate directly to the rights of persons
within the States and as between the States and such persons therein.
These prohibitions upon the political powers of the States are all of such
nature that they can be, and even have been, when the occasion arose,
enforced by the courts of the United States declaring void all State acts
of encroachment on Federal powers.  Thus, and thus sufficiently, has the
United States `enforced' these provisions of the Constitution.  But there
are some that are not of this class.  These are where the court secures the
rights or the liabilities of persons within the States, as between such
persons and the States.
    "These three are: first, that as to fugitives from justice; second,
that as to fugitives from service, (or slaves;) third, that declaring that
the `citizens of each State shall be entitled to all the privileges and
immunities of citizens in the several States.'
    "And, sir, every one of these--the only provisions where it was deemed
that legislation was required to enforce the constitutional provisions-the
only three where the rights or liabilities of persons in the States, as
between these persons and the States, are directly provided for, Congress
has by legislation affirmatively interfered to protect or to subject such
persons."  Cong. Globe, at App. 69-70 (emphasis added to reflect omissions
in dissent).
    It should first be noted that Shellabarger was not in the above
quotation addressing the part of the 1871 statute that became 91983, i.9e.,
91.  Rather, he was discussing 92 of the bill, which made it a federal
crime to engage in a conspiracy "to do any act in violation of the rights,
privileges, or immunities of another person .9.9. committed within a place
under the sole and exclusive jurisdiction of the United States."  Id., at
68.  A principal objection to that section was that Congress lacked the
authority to enact it, because it infringed upon the powers reserved to the
states by overriding their authority to define and punish crimes.  See,
id., at 69.  In answering that argument, Shellabarger contended that
Congress had the power to enforce by legislation "every one of the
provisions of the Constitution."  He observed that most of the provisions
of the Constitution "which restrain and directly relate to the States" had
been enforced by the courts without federal legislation, but noted that
three provisions limiting state authority--the Extradition Clause, the
Privileges and Immunities Clause, and the Fugitive Slave Clause--had been
enforced pursuant to federal legislation.
    It becomes clear that fully quoted and properly read, Shellabarger's
remarks do not in any way aid the dissent.  The dissent's attempt to
characterize Shellabarger's argument for expansive federal power to enact
criminal legislation as support for a narrow construction of 91983 is
strained, to say the least.  Shellabarger simply did not address the issues
of which constitutional provisions establish "rights, privileges, or
immunities," whether the Commerce Clause falls into that category, or
whether provisions that allocate power cannot also confer rights.  Nor
would it be likely that he would have made any of the statements on these
points argued by the dissent, given this Court's then-recent holding that
the affirmative grant of power to Congress in the Credit Clause established
a "right, privilege, or immunity."  See The Banks v. The Mayor, 7 Wall. 16,
22 (1869).  The other snippets of legislative history relied upon by the
dissent, see post, at 6, are similarly inapposite and inconclusive.
    In any event, even if the dissent's cut-and-paste history could be read
to provide some support for its formalistic distinction between
powerallocating and rights-conferring provisions of the Constitution, it
plainly does not constitute a "a clearly expressed legislative intent
contrary to the plain language of [91983]."  American Tobacco Co. v.
Patterson, 456 U.9S. 63, 75 (1982).  Rather, if Congress had intended to
limit the "broad and unqualified" language of 91983, "it is not
unreasonable to assume that it would have made this explicit."  St. Paul
Fire & Marine Ins. Co. v. Barry, 438 U.9S. 531, 550 (1978).

5
    9The statute at issue in Lynch was the jurisdictional counterpart to
91983, 28 U.9S.9C. 91343(3), which contains the same "rights, privileges,
or immunities" phrase.  Even the dissent in Lynch agreed "without
reservation" that the phrase was not limited to violations of "personal"
rights, but disagreed with the majority on a different issue.  See 405
U.9S., at 556.

6
    9See, e.9g., CTS Corp. v. Dynamics Corp. of America, 481 U.9S. 69, 87
(1987); Hughes v. Oklahoma, 441 U.9S. 322, 326 (1979); Great Atlantic &
Pacific Tea Co. v. Cottrell, 424 U.9S. 366, 370-371 (1976); Cooley v. Board
of Wardens of Port of Philadelphia, 12 How. 299, 318 (1852).  These cases
are distinguishable from cases involving assertions that state regulations
of commerce directly conflict with federal regulations enacted under the
authority of the Commerce Clause.  An example of the latter is Gibbons v.
Ogden, 9 Wheat. 1 (1824), in which the Court struck down a New York statute
to the extent that it excluded federally-licensed boats from operating in
New York waters.

7
    9See, e.9g., Black's Law Dictionary 1324 (6th ed. 1990) (defining
"right" as "[a] legally enforceable claim of one person against another,
that the other shall do a given act, or shall not do a given act") (citing
Restatement of Property 91 (1936)).  That the right at issue here is an
implied right under the Commerce Clause does not diminish its status as a
"right, privilege, or immunity" under 91983.  Indeed, we have already
rejected a distinction between express and implied rights under 91983 in
the statutory context.  "The violation of a federal right that has been
found to be implicit in a statute's language and structure is as much a
`direct violation' of a right as is the violation of a right that is
clearly set forth in the text of the statute."  Golden State Transit Corp.
v. Los Angeles, 493 U.9S. Z, Z9-9Z (1989) (slip op., at 8-9).

8
    9An additional reason why claims under the Supremacy Clause, unlike
those under the Commerce Clause, should be excluded from the coverage of
91983 is that if they were included, the "and laws" provision in 91983
would be superfluous.  See Golden State, 493 U.9S., at Z, n.94 (slip op.,
at 4, n.94).

9
    9In arguing that the Commerce Clause does not secure any rights,
privileges, or immunities within the meaning of 91983, the dissent relies
upon Carter v. Greenhow, 114 U.9S. 317 (1885).  See post, at 7-8.  This
Court, however, has already given that decision a narrow reading, stating
that the case "held as a matter of pleading that the particular cause of
action set up in the plaintiff's pleading was in contract and was not to
redress deprivation of the `right secured to him by that clause of the
Constitution' [the contract clause], to which he had `chosen not to
resort.'9"  Chapman v. Houston Welfare Rights Organization, 441 U.9S. 600,
613, n.929 (1979); see also Hague v. Committee for Industrial Organization,
307 U.9S. 496, 527 (1939) (opinion of Stone, J.).