There Ought To Be a Law . . . Review Article About Landor
I write about the intersection of contracts law and constitutional law. It is no surprise that I was drawn to Justice Gorsuch’s theory (which found support from five additional Justices) in Landor v. Louisiana Department of Corrections) that Spending Clause enactments give rise only to contractual obligations between the federal government and the states. Because the contract is between the federal government and the state, legal accountability for breaches do not extend to individual state officials whose work is facilitated by federal funding unless those individuals consent to be held accountable. I have the germ of an idea for a law review article on this subject that I likely will not write, but if anybody wants to write it, I will be happy to be named as a co-author. Here’s the gist.
Associate Justice Neil M. Gorsuch; photograph by Franz Jantzen, 2017.
But first, for those who have not been following the case, here are the facts. They are bad. I don’t think anybody thinks that what happened to Mr. Landor was right, and I think everybody agrees that he should be entitled to some legal remedy.
Mr. Landor is a Rastafarian who was sentenced to a few months in prison in Louisiana. Consistent with the Nazarite Vow, Mr. Landor had let his hair grow throughout adulthood, and by the time he arrived in prison, his hair had reached his knees. Two prisons accommodated his beliefs, as required by the federal Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), and they did not cut Mr. Landor’s hair as they otherwise would have done to a new prisoner. However, weeks before his release, Mr. Landor was transferred to a third prison.
Anticipating the need to educate prison staff, Mr. Landor arrived at the third facility with a physical copy of the Fifth Circuit’s ruling in Ware v. Louisiana Dept. of Corrections, 866 F. 3d 263 (2017), which held that inmates are entitled under RLUIPA to religious exemptions so that they can maintain their facial hair if doing so was required by their religious beliefs. There is no reason to think that Ware would not also apply to Mr. Landor’s hair. Nonetheless, the prison guards responded by tossing Mr. Landor’s copy of Ware in the trash and forcibly cutting his hair.
Justice Gorsuch, writing for the 6-3 majority, found that Congress had enacted RLUIPA pursuant to its Spending Clause powers. That is, it conditioned the availability of federal funds to prisons and other institutions on compliance with RLUIPA’s provisions. The Majority held that, because Spending Clause enactments create a contractual relationship between the federal government and the states that accept federal funds, it would exceed Congress’s Spending Clause powers to impose personal liability on individual prison officials who are not parties to that contractual arrangement for violating RLUIPA.
Justice Gorsuch’s support for this reading of the limits of the Spending Clause is extremely compact. It goes something like: William Treanor said in 2021 that Albert Gallatin said in 1798 that Roger Sherman said no in 1787 to a semi-colon suggested by Gouverneur Morris, and the Convention agreed with Sherman, so . . . contracts. The remaining support for Justice Gorsuch’s conclusion consists of bluster (“This Court’s precedents have long re-spected that founding-era consensus.”) bolstered by phrases plucked from a handful of related cases. That reasoning got six votes on SCOTUS.
Justice Gorsuch concludes forcefully:
Mr. Landor does not have a federal RLUIPA cause of action against the officers. Under the Spending Clause, Congress lacks regulatory authority to impose liability on them directly and must depend instead on consent. And because they never agreed to answer suits like this one, Mr. Landor’s case cannot proceed against them any more than a breach of contract action might proceed against a defendant who never formed a contract.
The majority acknowledges that Congress could have created individual liability. Congress could have conditioned federal funding on Louisiana’s agreement to answer suits under RLUIPA or it could have conditioned federal funding on Louisiana’s agreement to create causes of action under state law against its own officers. Congress did not do so because until last week it had no reason to think that it needed to do so. And neither Congress or Louisiana will act now for reasons that have to do with the current nature of Congress and Louisiana. Moreover, as Justice Jackson points out in her dissent, this ruling has sweeping consequences, so Congress and the states would have to get busy drafting a lot of legislation imposing individual liability on state officials. Given this Court’s agenda, I don’t think the task would be quite as easy as Justice Gorsuch makes it seem. I suspect that this Court would inspect the sources of alleged individual consent to liability and find them inadequate or find that they violate the anti-commandeering doctrine or some new doctrine patched together from a crazy quilt of decontextualized citations to cases old and new. But that is a hypothetical that follows from a separate hypothetical.
Official Photograph of Associate Justice Ketanji Brown Jackson taken by Supreme Court Photographer Fred Schilling, 2022.
Arguably, under conventional understandings of the duty of good faith and fair dealing, no such legislative action is needed. States rely on their agents to carry out their legal obligations, regardless of how they are characterized. If a state takes on a contractual obligation, it is bound to use its best efforts to guarantee that its agents fulfill those obligations. A state cannot be permitted to breach its obligations and then escape accountability by placing the blame on its agents who are not contractually bound. There is no need for a new legislative enactment to bind the state’s agents because the state was already obligated under the duty of good faith and fair dealing to require its agents to comply with RLUIPA.
In the alternative, the contracts analogy has always been a poor fit. Agreements between governments are not contracts; they are treaties. When a state enters into a treaty it is under an obligation to take effective measures to guarantee compliance. So, for example, the Human Rights Committee admonished federal states-parties that they needed to take action to make sure that federal subdivisions safeguarded rights protected under the International Covenant on Civil and Political Rights. In Mexico v. United States (Avena), the International Court of Justice held the United States accountable for states’ failures to comply with obligations under Article 36 of the Vienna Convention on Consular Relations. Oklahoma’s Governor Brad Henry agreed to commute the sentence of a man facing the death penalty to life imprisonment in response to the Avena decision. President George W. Bush complied with Avena by directing states to review and reconsider the sentences of foreign nationals who were convicted of crimes in the U.S. after having been denied their consular visitation rights under Article 36.
Similar results ought to be possible here. The result might not be a suit for money damages against the state agent but a suit directly against the state for breach of a contract/treaty to which the claimant, in this case, Mr. Landor, was a third-party beneficiary. This all gets messy, with state sovereign immunity and all, which is why someone else should write it up. Ultimately though, exposing the state to liability incentivizes states to properly train their agents and to bind them contractually so that they can either be directly liable or can be liable to hold the state harmless when the state faces liability for its agents’ conduct.
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