Cite as: 538 U. S. 644 (2003)
Thomas, J., concurring in judgment
Pennhurst State School and Hospital v. Halderman, 451 U. S. 1, 17 (1981). This contract analogy raises serious questions as to whether third parties may sue to enforce Spending Clause legislation—through pre-emption or otherwise. See Blessing v. Freestone, 520 U. S. 329, 349-350 (1997) (Scalia, J., concurring). In contract law, a third party to the contract (as petitioner is here) may only sue for breach if he is the "intended beneficiary" of the contract. See, e. g., Restatement (Second) of Contracts § 304 (1979) ("A promise in a contract creates a duty in the promisor to any intended beneficiary to perform the promise, and the intended beneficiary may enforce the duty"). When Congress wishes to allow private parties to sue to enforce federal law, it must clearly express this intent. Under this Court's precedents, private parties may employ 42 U. S. C. § 1983 or an implied private right of action only if they demonstrate an "unambiguously conferred right." Gonzaga Univ. v. Doe, 536 U. S. 273, 283 (2002). Petitioner quite obviously cannot satisfy this requirement and therefore arguably is not entitled to bring a pre-emption lawsuit as a third-party beneficiary to the Medicaid contract. Respondents have not advanced this argument in this case. However, were the issue to be raised, I would give careful consideration to whether Spending Clause legislation can be enforced by third parties in the absence of a private right of action.
II
Petitioner's Commerce Clause challenge is easily met, because "[t]he negative Commerce Clause has no basis in the text of the Constitution, makes little sense, and has proved virtually unworkable in application." Camps Newfound/ Owatonna, Inc. v. Town of Harrison, 520 U. S. 564, 610 (1997) (Thomas, J., dissenting). I therefore agree with the Court that petitioner cannot prevail on this claim.
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