concurring.
I join Judge Hamilton’s opinion without reservation, but write separately to emphasize some practical considerations that seem to me to favor recognition of IPAS’s right to sue to obtain patient records.
The federal Protection and Advocacy for Individuals with Mental Illness Act of 1986, 42 U.S.C. §§ 10801 et seq., assigns to “protection and advocacy” agencies such as IPAS (“Indiana Protection and Advocacy Services,” an Indiana state agency that is independent of the governor and the attorney general) a whistleblower, ombudsman, watchdog, advocacy, and “private attorney general” role. Rather than loading the Department of Health and Human Services or the Justice Department with additional enforcement responsibilities, Congress told the states in effect: “if you want, we will give you federal money to help prevent the abuse of mentally ill persons in your state, but you will have to agree to designate an agency, either public or private as you choose, to ‘protect and advocate for’ the rights of such persons, and the agency, which we’ll be paying for, must be given access to certain patient records without which it cannot perform its assigned role effectively.”
But what if the hospital that has the records refuses to grant IPAS access to them? Can IPAS sue the hospital to get access? (I think we all agree that if IPAS has a right of action under the federal statute it makes no difference whether the hospital is public or private; the disagreement is over the “if.”) If not — if IPAS is a helpless bystander to the state’s thumbing its nose at the statute under which it has received federal money — still the federal government would not be completely without a remedy; it could close the money spigot. 42 C.F.R. § 51.10; see also 42 U.S.C. § 10803; cf. 20 U.S.C. §§ 1232g(f), 1234c(a), 1234d(a); Gonzaga University v. Doe, 536 U.S. 273, 278-79, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002). But that (to change metaphors). would be cutting off one’s nose to spite one’s face. The unfortunates in Indiana who are the intended beneficiaries of the federal program would be worse off were the program in that state to be defunded. See Guardians Ass’n v. Civil Service Commission, 463 U.S. 582, 601-02, 103 S.Ct. 3221, 77 L.Ed.2d 866 (1983) (plurality opinion); Cannon v. University of Chicago, 441 U.S. 677, 704-06 and nn. 38-39, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979); Board of Public Instruction v. Finch, 414 F.2d 1068, 1075-76 and n. 11 (5th Cir.1969). Of course the threat to defund might be enough to bring the state to heel. But that is not certain. The state and the federal government would be playing a game of chicken — with Indiana’s mentally ill citizens the victims of any collision that might result.
Now it is true and important that statutes are compromises between competing values and also between competing interests, and for either reason or both reasons the remedies for violations of a statute may be weakened as the bill runs the legislative gauntlet. Barnhart v. Sigmon Coal Co., 534 U.S. 438, 445-46, 461, 122 S.Ct. 941, 151 L.Ed.2d 908 (2002); Rodriguez v. United States, 480 U.S. 522, 525-26, 107 S.Ct. 1391, 94 L.Ed.2d 533 (1987) (per curiam); First Bank v. DJL Properties, LLC, 598 F.3d 915, 917-18 (7th Cir. 2010); In re Establishment Inspection of *384Skil Corp., 846 F.2d 1127, 1133-34 (7th Cir.1988). They may even be weakened to the point of impotence. But the state does not argue that a legislative compromise deprived the bill of effective remedies.
Conceivably the federal government could sue the state hospital, even without express statutory authorization, for an injunction requiring the hospital to give IPAS access to the patient records in question. The state accepted federal money in exchange for promises that included giving the watchdog agency access to patient records. The state’s acceptance created a contract and the federal government, if it sought specific performance of the state’s obligation, would be enforcing a federal common law contractual right, as recognized in such cases as Cotton v. United States, 52 U.S. 229, 11 How. 229, 13 L.Ed. 675 (1850); Woods v. United States, 724 F.2d 1444, 1449-50 (9th Cir.1984), and United States v. Marion County School District, 625 F.2d 607, 609-11 (5th Cir. 1980). See also the dissenting opinion in Guardians Ass’n v. Civil Service Commission, supra, 463 U.S. at 630-31, 103 S.Ct. 3221, and the concurring opinion in Bell v. New Jersey, 461 U.S. 773, 794, 103 S.Ct. 2187, 76 L.Ed.2d 312 (1983) — the majority opinion treated the question whether the federal government had a common law right to recover funds spent in violation of the federal grant as open. Id. at 782 n. 7, 103 S.Ct. 2187.
But this route to relief is indirect and even redundant compared to a suit by IPAS. It would involve three parties— IPAS, the state, and the federal government, rather than just IPAS and the state. It would also be a transparent effort to circumvent a rule, if there is a rule, that forbids recognition of IPAS’s right to sue the hospital because the right is not explicitly stated in the statute. For if a right of IPAS to sue for the records can’t be inferred from the statute, neither can a right of the federal government to do so. Indeed the interpretive stretch would be greater. The statute entitles a protection and advocacy agency to “pursue administrative, legal, and other appropriate remedies to ensure the protection of individuals with mental illness who are receiving care or treatment in the State.” 42 U.S.C. § 10805(a)(1)(B). It says nothing about a suit by the federal government.
There are two possible construals of the right created by the statutory language that I just quoted. One is that IPAS merely has the legal capacity to bring a suit, like a corporation. The conferral of that right would say nothing about what suits it could bring. Board of Education of City of Peoria v. Illinois Board of Education, 810 F.2d 707, 709-10 (7th Cir.1987); 6A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure § 1559, p. 441 (2d ed.1990) (“capacity has been defined as a party’s personal right to come into court, and should not be confused with the question of whether a party has an enforceable right or interest”); see also Fed.R.Civ.P. 17(b). Maybe it could just bring the kind of suit a corporation or individual might bring, such as a suit for unpaid rent. But alternatively the statutory language could mean that IPAS can bring suits that are essential to its playing its “protect and advocate” role, including suits to enforce its statutory right of access to patient records. And not just suits in a representative capacity, seeking relief for particular persons injured by the state’s flouting its statutory duty. IPAS can act in such a capacity as well, but the right to do so is conferred in a separate subsection of the statute. 42 U.S.C. § 10805(a)(1)(C).
It’s not as if IPAS could obtain an effective legal remedy from the state courts of Indiana. It could not. And the fact that *385the right that the federal statute confers on IPAS — the right of access to patient records — expressly preempts any state law prohibiting such access, see 42 U.S.C. § 10806(b)(2)(C); Center for Legal Advocacy v. Hammons, 323 F.3d 1262, 1272-73 (10th Cir.2003); Pennsylvania Protection & Advocacy, Inc. v. Houstoun, 228 F.3d 423, 427-28 (3d Cir.2000), makes it all the more likely that Congress expected the right to be enforceable in a federal court. Cf. Rice v. Office of Servicemembers’ Group Life Ins., 260 F.3d 1240, 1247 (10th Cir.2001).
It is not an insuperable obstacle to this suit that ever since Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), the Supreme Court has been wary of inventing private remedies for statutory violations and now requires that the private right of action be inferable from the statute itself. Alexander v. Sandoval, 532 U.S. 275, 286, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001); Virginia Bankshares, Inc. v. Sandberg, 501 U.S. 1083, 1102, 111 S.Ct. 2749, 115 L.Ed.2d 929 (1991); Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 15-22, 100 S.Ct. 242, 62 L.Ed.2d 146 (1979); Touche Ross & Co. v. Redington, 442 U.S. 560, 571-78, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979). The requirement reflects a realistic understanding of the role of compromise in the legislative process. Private remedies, especially private damages remedies, can greatly magnify the force of a statute. If a remedy can be imposed only in an action by a public agency — say a cease and desist proceeding by an administrative agency like the Federal Trade Commission — the potential targets of such an action have the protection of prosecutorial discretion, which places a screen between a private complaint and an enforcement action, and are not exposed to liability for damages awarded in private suits in amounts that might (in a class action for example) cause bankruptcy. For a court to spring a private remedy on the persons or firms subject to a statute is thus to change the legislative deal dramatically.
There is nothing like that here. There is no suggestion that IPAS can sue a hospital for damages, which would have the potential to harm hospitals far more than could an order to grant access to records and would be likely to increase the cost of hospital services. “Because the private right of action under Title IX [of the Civil Rights Act of 1964] is judicially implied, we have a measure of latitude to shape a sensible remedial scheme that best comports with the statute.” Gebser v. Lago Vista Independent School District, 524 U.S. 274, 284, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998). The sensible remedy in this case is an injunction commanding access.
A private right of action with appropriate remedies can be inferred from a statute that evinces a congressional intent to authorize such a right, Transamerica Mortgage Advisors, Inc. v. Lewis, supra, 444 U.S. at 15-16, 100 S.Ct. 242; Knapp v. Eagle Property Management Corp., 54 F.3d 1272, 1276-79 (7th Cir.1995); Hallwood Realty Partners, L.P. v. Gotham Partners, L.P., 286 F.3d 613, 618-22 (2d Cir.2002); CSX Transportation Inc. v. Marquar, 980 F.2d 359, 379-82 (6th Cir. 1992), as the present statute does. The Supreme Court’s decision in Alexander v. Sandoval, supra, 532 U.S. at 286, 121 S.Ct. 1511 — a landmark in the march begun in Cort v. Ash away from judicial creation of private remedies — makes this clear: “the judicial task is to interpret the statute Congress has passed to determine whether it displays an intent to create ... a private remedy.” Consistent with this language, even after Cort the Supreme Court has found private remedies implicit in statutes. See, e.g., Jackson v. Birmingham Board of Education, 544 U.S. 167, 125 S.Ct. 1497, *386161 L.Ed.2d 361 (2005) (implied remedy for retaliation under Title IX); Morse v. Republican Party of Virginia, 517 U.S. 186, 230-35, 240, 116 S.Ct. 1186, 134 L.Ed.2d 347 (1996) (implied remedy under the Voting Rights Act); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. 353, 102 S.Ct. 1825, 72 L.Ed.2d 182 (1982) (implied remedies under the Commodity Exchange Act).
The cases rejecting judicial creation of private rights of action ex nihilo would defeat a suit against the state hospital administration by the guardian of a mentally ill person, seeking damages for mistreatment in a state hospital; for there is no hint in the statute of an intention to create such a right of action. That is not this case.
Nor is this a case in which the state may have been fooled into accepting federal money on conditions that, had it realized what they were, would have caused it to reject the money. The Supreme Court expressed concern with this possibility in Davis v. Monroe County Board of Education, 526 U.S. 629, 639-40, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999), when it said, quoting Pennhurst State School & Hospital v. Halderman, 451 U.S. 1, 17-18, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981), that “in interpreting language in spending legislation, we thus ‘insisft] that Congress speak with a clear voice,’ recognizing that ‘[t]here can, of course, be no knowing acceptance [of the terms of the putative contract] if a State is unaware of the conditions [imposed by the legislation] or is unable to ascertain what is expected of it.’ ” See also Barnes v. Gorman, 536 U.S. 181, 185-88, 122 S.Ct. 2097, 153 L.Ed.2d 230 (2002). But Indiana could not have been surprised to find that IPAS could sue it for violating a condition in the federal grant that it accepted. The state knew that by accepting the money it would be committing to provide IPAS with access to patient records — knew too that IPAS had been empowered to invoke legal remedies for violations of the rights conferred on it by the federal statute. The state could not reasonably have believed that its commitment was empty, unenforceable — that it could take the money and yet be subject to no sanction for refusing to comply with the terms of the grant except that of cancellation of the program, figuratively a kind of nuclear option, as it would blow up the mentally ill of Indiana along with the federal program.
Consistent with this analysis, the Supreme Court in Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 74-75, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992), finding that monetary damages were available to enforce an implied remedy in a spending-clause statute, rejected the contention
that the normal presumption in favor of all appropriate remedies should not apply because Title IX was enacted pursuant to Congress’ Spending Clause power. In Pennhurst State School and Hospital v. Halderman, the Court observed that remedies were limited under such Spending Clause statutes when the alleged violation was unintentional. Respondents and the United States maintain that this presumption should apply equally to intentional violations. We disagree. The point of not permitting monetary damages for an unintentional violation is that the receiving entity of federal funds lacks notice that it will be liable for a monetary award. This notice problem does not arise in a case such as this, in which intentional discrimination is alleged. Unquestionably, Title IX placed on the Gwinnett County Public Schools the duty not to discriminate on the basis of sex, and “when a supervisor sexually harasses a *387subordinate because of the subordinate’s sex, that supervisor ‘discriminate^]’ on the basis of sex.” We believe the same rule should apply when a teacher sexually harasses and abuses a student. Congress surely did not intend for federal moneys to be expended to support the intentional actions it sought by statute to proscribe. [Some citations omitted.]
The state argues that the federal courts have no business refereeing a contest between two state agencies, IPAS and the state hospital administration; and it is true in general that “federal courts should not get involved unnecessarily in what may be intramural struggles of state government even if invited to do so by one of the contenders.” Mazanec v. North Judson-San Pierre School Corp., 763 F.2d 845, 848 (7th Cir.1985); see also Cronson v. Clark, 810 F.2d 662 (7th Cir.1987); Duran v. Elrod, 760 F.2d 756, 759 (7th Cir.1985); Donelon v. Louisiana Division of Administrative Law ex rel. Wise, 522 F.3d 564, 568 (5th Cir.2008). But this is not a typical case. That it is a suit between state agencies is an accident. If Indiana like most states had appointed a private entity to be IPAS and if the defendant were a private hospital, the suit would be between two private entities.
Independent as it is of the governor and the attorney general, IPAS is a state entity in name only, especially in a suit against a state hospital — there it’s an agent of the federal government, suing to assure a state’s compliance with the federal duties of care for the mentally ill that the state agreed to perform. It would be strange if a state could render the federal statute unenforceable by creating (or appointing) a public rather than a private protection and advocacy agent, or if the statute were unenforceable against state hospitals even though there is (as I think we all agree) no issue of state sovereign immunity.
One would like to know why Congress granted states a choice between a public and a private watchdog agency, why the minority of states (eight out of 50) that have chosen the public option have done so, and what the consequences of the choice are. Besides Indiana, the public option has been chosen by Alabama, Connecticut, Indiana, Kentucky, New York, North Dakota, Ohio, and Virginia (also American Samoa and Puerto Rico). See U.S. Dep’t of Health & Human Services, Substance Abuse & Mental Health Services Administration, “Protection and Advocacy for Individuals with Mental Illness (PAIMI) Program” (Feb.2003), http:// mentalhealth.samhsa.gov/cmhs/p&a/about. asp (visited Mar. 26, 2010). I don’t know what these eight states have in common and why they made the choice they did. I do know that New York began with a private enforcer but switched to a public one in 1980, having decided that the private enforcer wasn’t doing a good job. Patricia Puritz & Mary Ann Scali, “Beyond the Walls: Improving Conditions of Confinement for Youth in Custody” 30 (U.S. Dept, of Justice, Office of Juvenile Justice and Delinquency Prevention Report Jan. 1998), www.ncjrs.gov/pdffiles/164727.pdf (visited Mar. 31, 2010). North Carolina switched the other way in 2007. North Carolina Dept, of Administration, “Carolina Legal Assistance Designated as North Carolina’s Protection and Advocacy System,” May 21, 2007, www.doa.state.nc. us/pio/news/showrelease.asp?id=0001-21 MAY07 (visited Mar. 31, 2010). These examples do not suggest a pertinent difference between public and private protection and advocacy agencies. Rather they suggest that a state that hasn’t had a good experience with a public agency is likely to try a private one next, and vice versa.
The secondary literature suggests— ironically in light of the present case — that *388public protection and advocacy agencies have an easier time gaining access to information from the state than private ones do. Melissa Bowman, Note, “Open Debate Over Closed Doors: The Effect of the New Developmental Disabilities Regulations on Protection and Advocacy Programs,” 85 Ky. L.J. 955, 990 (1997). The main argument against public agencies— and again it is ironic in light of this caséis that they can’t be expected to be “truly independent and withstand political pressure either to not initiate an investigative action or to prematurely resolve an investigation that should be litigated.” Id. Another argument against the public agency is that private ones may receive charitable donations to augment their resources but people rarely make a charitable donation to a public agency. None of these differences suggests that IPAS has a more limited right to sue than a private agency.