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Wednesday, February 22, 2012

Chief Justice Roberts and the Supremacy Clause "Near-Miss" in Douglas v. Indep. Living Ctr.

There's a lot to say about the Supreme Court's decision this morning in Douglas v. Independent Living Center of Southern California, a case I've written and blogged about fairly extensively (and in which I submitted an amicus brief on behalf of former HHS officials).  

Going into the oral argument, the case appeared to present the issue of whether the "equal access" provision of federal Medicaid law could be enforced by Medicaid beneficaries via the Supremacy Clause in a suit for injunctive relief against a (arguably preempted) state law, even though the same plaintiffs could not enforce the equal access provision directly or under 42 U.S.C. § 1983. The Ninth Circuit had said yes, and given both the cert. grant and the Obama Administration's amicus brief to the contrary, there was reason to believe that the Court would say no--not just in this specific case, but that, in general, the Supremacy Clause could never be used to obtain injunctive relief on a preemption claim (that a state officer was enforcing a state law in violation of federal law) when the federal statute allegedly being violated was not otherwise privately enforceable.  

Whatever one thinks about the merits of such a result, I think folks would generally agree that this would have been a remarkably important outcome for the future of Federal Courts jurisprudence. And as I explain below the fold, at least four Justices, led by Chief Justice Roberts, would have gone there--all the more reason, methinks, to be relieved that the majority ducked....

Writing for a 5-4 majority (Kennedy + the lefties), Justice Breyer held that intervening developments (to wit, HHS's approval of California's Medicaid plan amendments--which presumably means HHS now believes that the amendments as modified don't violate the equal access provision) fundamentally changes the nature of the question presented. Now, from the majority's perspective, instead of arguing that the California rate-cut violates the equal access provision, the plaintiffs' real claim is that HHS acted arbitrarily and capriciously in concluding that it doesn't... Thus, the Court vacated and remanded for further proceedings.

But what's far more interesting is Chief Justice Roberts' dissent. Notwithstanding his assertion that "The question presented in the certiorari petitions is narrow," the Chief would have held that the Supremacy Clause never provides a general basis for pursuing injunctive relief against a preempted state statute if the federal statute creating the conflict cannot be privately enforced. In his words, 

[I]f Congress does not intend for a statute to supplya cause of action for its enforcement, it makes no sense to claim that the Supremacy Clause itself must provide one. . . . Indeed, to say that there is a federal statutory right enforceable under the Supremacy Clause, when there is no such right under the pertinent statute itself, would effect a complete end-run around this Court’s implied right ofaction and 42 U. S. C. § 1983 jurisprudence. We have emphasized that “where the text and structure of a statute provide no indication that Congress intends to createnew individual rights, there is no basis for a private suit,whether under § 1983 or under an implied right of action.” This body of law would serve no purpose if a plaintiff could overcome the absence of a statutory right of action simplyby invoking a right of action under the Supremacy Clause to the exact same effect.

The problem with the Chief's analysis is that the case law to which he alludes is almost entirely about claims for damages, not injunctive relief. Whatever else one might say about the Court's jurisprudence in that regard, it has not yet incorporated the rules of Alexander v. Sandoval and Gonzaga University v. Doe into claims for injunctive relief under the Supremacy Clause, and for good reason. If one could only obtain an injunction against a state officer for violations of federal statutes that are themselves privately enforceable, that would turn the doctrine of Ex parte Young on its head--converting it from a cause of action into nothing more than the answer to why defendant officers wouldn't have a sovereign immunity defense to a suit directly under the relevant federal statute.

To be fair, the Chief doesn't ignore this point. Instead, he tackles it head-on:

Those cases [under Ex parte Young] . . . present quite different questions involving “the pre-emptive assertion in equity of a defense that would otherwise have been available in the State’s enforcement proceedings at law.” Virginia Office for Protection and Advocacy v. Stewart, 563 U. S. ___, ___ (2011) (KENNEDY, J., concurring) (slip op., at 1). Nothing of that sort is at issue here; the respondents are not subject to or threatened with any enforcement proceeding like the one in Ex parte Young. They simply seek a private cause of action Congress chose not to provide.

Before today, only Justice Kennedy (among the current Justices) had ever argued that Ex parte Young was so confined--that is, to "the pre-emptive assertion in equity of a defense that would otherwise have been available in the State’s enforcement proceedings at law." In the very case in which he said it last Term, Justice Scalia (who joined the Chief's dissent today) reiterated for the majority that Ex parte Young only requires a "straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective." 

Reasonable people may disagree about whether Ex parte Young should be so limited; the critical point is that, before today, the Court has never so limited it--and so by ducking, the majority avoided a potentially momentous holding on the availability vel non of injunctive relief to enforce federal statutes. Thus, in trying to come up with a pithy summary for today's result, the best I can do (notwithstanding George Carlin's well-taken objection to the term, i.e., "oh look--they nearly missed!") is that, thanks to Justice Kennedy, this was a Supremacy Clause near-miss...

Posted by Steve Vladeck on February 22, 2012 at 02:26 PM in Constitutional thoughts, Steve Vladeck | Permalink


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I find this general "it's equity" attitude frustrating. That's right--it's equity, so let's talk equity. An injunction is extraordinary relief that is awarded only to those with a legally protectible interest. If the interest you claim is one that the law will not recognize, either as the basis for a claim for damages (the typical one) or as a defense in potential enforcement proceedings (the anti-suit injunction in EPY), then you don't get an injunction. The implied rights cases say that, absent some statutory basis, the general public doesn't have any rights protectible at law. So to permit injunctions is indeed an end-run around those cases, even if the cases are about damages.

Equity can be flexible, but not infinitely so.

Posted by: anon | Feb 23, 2012 2:06:01 PM

I can't help thinking that Roberts's view (not to mention much of the recent cuback on implied causes of action) shows a confusion between equity and law. It may sound nice to say equity follows the law, but in the pre-merger era (that of Ex Parte Young or Home Tel. & Tel.) opinions in cases asking for injunctive relief would put a lot of emphasis on whether there was jurisdiction, and if there was, the court would go on to produce an equitable remedy without discussing any specific cause of action. True, many of ther relevant cases were based on allegations that state statutes were unconstitutional as conflicting with due process or equal protection or something other than supremacy itself, but as Steve emphasizes, the most prominant no-cause-of-action cases were those for damages (that is, relief at law, not equity). Frankly, there were also a lot fewer federal statutes in the EPY era for state laws to conflict with. I can't see why merger of law and equity should change the results in cases looking for injunctions. By the way, although the situations are not exactly parallel, it is odd to see the majority opinion treat the HHS approval process as dispositive without citing or discussing Rosado v. Wyman, 397 U.S. 397 (1970). The plaintiffs had no access to the administrative process there, but the result of the process looks pretty similar.

Posted by: Mark Weber | Feb 23, 2012 12:37:51 PM

Thanks Nicole! I appreciate the kind thoughts about the brief, and hope it had the effect you suggest. I also think it's really incisive to point out the distinction between the Medicaid-specific approach of the majority and the Medicaid-irrelevant approach of the dissent. The irony is that, even under Chief Justice Roberts' theory, congressional intent should still count. Indeed, he divines such intent (disfavoring private enforceability) from post-Gonzaga cases holding 30(a) to be unenforceable when in fact there is strong (and closer-to-enactment) legislative evidence to the contrary...

Posted by: Steve Vladeck | Feb 23, 2012 12:14:51 PM

Steve, thanks for the nice post. If the oral arguments can be used as an interpretive tool, then I think you have to pat yourself on the back for the ex-administrators of HHS amicus, because Kennedy had clearly read and believed the concerns raised in your brief. I think that's what enabled him to sign on to Breyer's majority (which also closely tracks the narrow path he seemed to be finding during oral arguments). I cannot help but notice that the majority also seems to be concerned with Medicaid as a program, whereas the dissent is more interested in constitutional principles and legislative interpretation. I don't think this crystal ball tells us much for FL v HHS, but I do agree that this narrow decision is a fortunate near-miss.

Posted by: Nicole Huberfeld | Feb 23, 2012 11:33:37 AM

I think the Chief is right, and Justice Kennedy probably would agree with him if forced to make a decision, but Justice Breyer came up with a clever way to duck the problem and Justice Kennedy was happy not to decide.

Posted by: anon | Feb 22, 2012 5:33:32 PM

Dan -- I was using it as shorthand. The source of the cause of action for EPY claims is usually the Supremacy Clause. In the context of constitutional claims, it's not as if the right itself provides a basis for injunctive relief. So whether one calls it an EPY claim or a Supremacy Clause claim, it's the same basic idea--that the Supremacy Clause divests a state officer of the authority prospectively to violate federal law, and therefore empowers the courts to enjoin such conduct. And that's what the Chief would've torn a big chunk out of, if he'd had his way.

Posted by: Steve Vladeck | Feb 22, 2012 4:53:37 PM

Is it accurate to say that Ex Parte Young creates a cause of action? I had always understood that not to be the case. Douglas Laycock has explicitly said that isn't so. See:


Posted by: dan | Feb 22, 2012 4:46:44 PM

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