Tuesday, May 01, 2012
The Surprising(?) Unanimity in Douglas v. Independent Living Center
Thanks to Dan for inviting me to guest-blog (and for keeping the invitation open for so many years!) and to all of the other Prawfs bloggers and readers for suffering my participation in your community for the next month. I'm used to blogging over at my sleepy little world-famous-in-Poland niche blog, where neither of my readers will much care if I make an ass of myself. I'm looking forward, over the next month, to making an ass of myself on a much bigger stage!
Let me begin by talking about a case the Supreme Court decided this Term that I think is incredibly important -- for its practical effect on the administration of Medicaid, for its implications for the ongoing litigation in many states regarding cuts to services for poor people and people with disabilities, and for what it says about the Supreme Court's disposition towards civil rights litigation generally. That case is Douglas v. Independent Living Center, a case that might itself have been world famous only in Poland but for the flood-the-zone coverage by, among others, Rick and Steve on this blog. The Court granted certiorari in Douglas to decide a private right of action issue: whether Ex parte Young and the Supremacy Clause provide a cause of action for private parties to enforce conditions on federal Medicaid spending, where those conditions are not privately enforceable under Section 1983. Many observers feared that the Court would use Douglas to impose on Ex parte Young doctrine the restrictive private-right-of-action test that it had applied to Section 1983 in Gonzaga University v. Doe. In the event, Chief Justice Roberts, joined by Justices Scalia, Thomas, and Alito, did vote to Gonzaga-ize Young. But the other five justices, in an opinion by Justice Breyer, voted to duck the question.
But despite qute sharply worded differences regarding the disposition in the case before them, Justice Breyer’s majority opinion and Chief Justice Roberts’s dissent share a common vision of the role of courts in enforcing of cooperative federalism arrangements. In that vision, the federal agencies that give out funds to states ought to be the primary enforcers of the terms Congress has attached to federal spending programs. To the extent courts should have any role, it should be an extremely circumscribed one. In subsequent posts during my stint here, I will discuss what I see as the implications of that vision, for cooperative federalism enforcement and for the stance political progressives do and should take toward courts. But for now, I hope to persuade you that the Douglas Court is unanimous, at least in meaningful respects, as to its vision of cooperative federalism enforcement.
This vision is most obvious in Chief Justice Roberts’s dissent, which would apply Gonzaga’s restrictive private-right-of-action jurisprudence to Supremacy Clause suits brought to enforce federal spending conditions. But although Justice Breyer’s majority opinion refuses to decide that question, it is shot through with language that endorses a strong executive-branch role—and a correlatively weak judicial role—in enforcing the terms of cooperative federalism arrangements.
Justice Breyer says, among other things, that the approval by the federal Centers on Medicare and Medicaid Services (CMS) of California’s rate reductions “carries weight” because “the agency is comparatively expert in the statute's subject matter,” and “the language of the particular provision at issue here is broad and general, suggesting that the agency's expertise is relevant in determining its application.” He underscores the point by citing the key administrative deference precedents of Chevron and Brand X. And he explains that allowing a Supremacy Clause cause of action might “subject the States to conflicting interpretations of federal law by several different courts (and the agency), thereby threatening to defeat the uniformity that Congress intended by centralizing administration of the federal program in the agency and to make superfluous or to undermine traditional APA review.”
The upshot of Justice Breyer’s majority opinion is that claims that states have violated the terms of federal spending statutes should, in the interests of uniformity and centralization, be channeled through the granting agency in the first instance; and once the agency addresses the challenge, its decision should be reviewed under traditional APA standards, with appropriate deference to its comparatively expert decision. Although the majority pointedly refused to decide whether plaintiffs could sue states directly under the Supremacy Clause for violating cooperative spending conditions, Chief Justice Roberts was surely right that the Court’s logic suggested a negative answer to that question. (For this reason, I fear that Steve's pessimistic take on the case is more likely to be proven correct than Rochelle Bobroff's more optimistic one.)
In unanimously endorsing an executive-branch-focused model of cooperative federalism enforcement, the Douglas Court continued a trend that began in the Court’s earlier cases involving the enforcement of federal spending conditions under Section 1983. Indeed, even Justice Breyer’s opinion concurring in the judgment in Gonzaga endorsed such a model. Sounding many of the same themes that would later appear in his Douglas opinion for the Court Justice Breyer concluded in Gonzaga that Congress “may well have” wanted to make the Department of Education the exclusive enforcer of FERPA’s conditions on federal spending, “both to achieve the expertise, uniformity, widespread consultation, and resulting administrative guidance that can accompany agency decisionmaking and to avoid the comparative risk of inconsistent interpretations and misincentives that can arise out of an occasional inappropriate application of the statute in a private action for damages.”
In my next post on Douglas, I will make the case that the executive-focused vision of cooperative federalism enforcement -- which, remember, both the conservative and the more liberal justices seem to share -- necessarily means that federal spending conditions will be underenforced. In my last post on the subject, I will connect this case to the revival, most prominent in the last 15 years or so, of court-skepticism among political progressives and explore more speculatively what the cooperative spending context illuminates regarding the circumstances in which political progressives should embrace or fear courts.
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The majority and dissent likely diverge on the question of which aggrieved parties are entitled to seek judicial review of agency action. Arguably J. Breyer's vision includes at least some beneficiaries to whom other members of the Court would deny standing. I'm working on a paper now that suggests some possibilities for rethinking standing in this context--I find a glimmer of hope in Douglas (sure to be short-lived). I would welcome others' thoughts.
Posted by: Lynn Lu | May 2, 2012 10:47:50 AM
I'd be interested to see your paper. I do think that various of the justices in the majority would in particular cases take a broader view of who could get into court (through interpretation of what is a "right" for 1983 purposes and through standing doctrines) than would the justices in dissent in Douglas. But what is interesting to me is just how executive-focused both the majority and the dissent are overall. But I'd be very interested to see the possibilities you're exploring.
Posted by: Sam Bagenstos | May 2, 2012 1:18:54 PM