95-1441.ZC Concurring

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SUPREME COURT OF THE UNITED STATES
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No. 95-1441
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LINDA J. BLESSING, DIRECTOR, ARIZONA
DEPARTMENT OF ECONOMIC SECURITY,
PETITIONER v. CATHY FREE-
STONE, etc., et al.
on writ of certiorari to the united states court
of appeals for the ninth circuit
[April 21, 1977]

Justice Scalia, with whom Justice Kennedy joins,
concurring.
I agree with the Court that under the test set forth in
Wright v. Roanoke Redevelopment and Housing Author-
ity, 479 U. S. 418, 423 (1987), and Wilder v. Virginia
Hospital Assn., 496 U. S. 498, 509 (1990), 42 U. S. C.
1983 does not permit individual beneficiaries of Title
IV-D of the Social Security Act, as added, 88 Stat. 2351,
and as amended, 42 U. S. C. A. 651-669b (Supp.
1997), to bring suit challenging a State's failure to
achieve -substantial compliance- with the requirements
of Title IV-D. That conclusion makes it unnecessary to
reach the question whether 1983 ever authorizes the
beneficiaries of a federal-state funding and spending
agreement-such as Title IV-D-to bring suit.
As we explained in Pennhurst State School and
Hospital v. Halderman, 451 U. S. 1 (1981), such an
agreement is -in the nature of a contract,- id., at 17:
The State promises to provide certain services to private
individuals, in exchange for which the Federal Govern-
ment promises to give the State funds. In contract law,
when such an arrangement is made (A promises to pay
B money, in exchange for which B promises to provide
services to C), the person who receives the benefit of the
exchange of promises between the two others (C) is
called a third-party beneficiary. Until relatively recent
times, the third-party beneficiary was generally regarded
as a stranger to the contract, and could not sue upon it;
that is to say, if, in the example given above, B broke
his promise and did not provide services to C, the only
person who could enforce the promise in court was the
other party to the contract, A. See 1 W. Story, A
Treatise on the Law of Contracts 549-550 (4th ed.
1856). This appears to have been the law at the time
1983 was enacted. See Brief for Council of State
Governments et al. as Amici Curiae 10-11, and n. 6
(citing sources). If so, the ability of persons in
respondents' situation to compel a State to make good
on its promise to the Federal Government was not a
-righ[t] . . . secured by the . . . laws- under 1983.
While it is of course true that newly enacted laws are
automatically embraced within 1983, it does not follow
that the question of what rights those new laws (or, for
that matter, old laws) secure is to be determined
according to modern notions rather than according to the
understanding of 1983 when it was enacted. Allowing
third-party beneficiaries of commitments to the Federal
Government to sue is certainly a vast expansion.
It must be acknowledged that Wright and Wilder
permitted beneficiaries of federal-state contracts to sue
under 1983, but the argument set forth above was not
raised. I am not prepared without further consideration
to reject the possibility that third-party-beneficiary suits
simply do not lie. I join the Court's opinion because, in
ruling against respondents under the Wright/Wilder test,
it leaves that possibility open.