Check out a newly-published law review article by lawprof Timothy Harris, “The Contracts Clause Can be Enforced via Section 1983, Period: The Nonexistent Circuit Court ‘Split’,” 78 SMU L. Rev. Forum 106 (2025).

The article delves into the issue of whether 42 U.S.C. § 1983 is the cause of action to bring a Contracts Clause challenge. The Contracts Clause prohibits states from passing any law impairing the obligation of contracts, and the fundamental question to be answered is whether your Contracts Clause rights are “rights, privileges, or immunities secured by the Constitution and laws” as described in section 1983.

Here’s the 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.

On one hand, there is an actual lower courts split: some federal courts do indeed hold that the Contracts Clause may not be enforced under section 1983. For example, in a recent case of ours (discussed and analyzed in this article), the Sixth Circuit held that the plaintiff could not use section 1983. We asked the Supreme Court to review the decision, but alas the Court said no. Other lower courts hold (or assume) that yes, section 1983 is the cause of action for a Contracts Clause claim.

But on the other hand, Professor Harris argues that the answer to this question is so clear that there shouldn’t be a split (or at least a genuine split where different courts could reasonably arrive at different conclusions), and that courts such as the Sixth Circuit which reject using section 1983 as a cause of action for a Contracts Clause claim, are just plain wrong when they conclude that section 1983 cannot be used, because Contracts Clause rights are merely “implied” rights:

Even if the contracts clause is an “implied right,” it is still an undiminished right under Dennis and entitled to the same protections as any other constitutional right.

Id. at 111.

While we agree with this conclusion, we still think that there is a split and that the Supreme Court needs to clear up the confusion and hold, as Professor Harris so clearly concludes, that “”The Contracts Clause Can be Enforced via Section 1983, Period.”

Put this one on your “must-read” list. Posted on SSRN here.