The Selective Use of Administrative Regulations in Creating Rights Enforceable Through § 1983 Actions

Abstract

For over 125 years, 42 U.S.C. 1983 has provided a means for plaintiffs to bring a cause of action against any person acting under color of state law who deprives them of their rights. Since the U.S. Supreme Court expanded 1983 to encompass remedies for violations of rights secured by federal laws, federal circuit courts of appeals have disagreed whether federal agency regulations, in addition to federal statutes, can create rights enforceable under 1983. This Note explores this debate, as well as the Court's treatment of federal regulations and the evolution of the Court's approach to recognizing individual rights under 1983. This Note argues that those regulations that create cognizable rights, that possess the full force and effect of law, and that deserve judicial deference should be eligible to create 1983 interests. This Note also argues that both our modern administrative state and public policy considerations support the derivation of 1983 interests from federal regulations.