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Tuesday, January 20, 2015

The Sleeper Case of the Supreme Court's October 2014 Term?

Over at SCOTUSblog, Will Baude has posted a helpful (and helpfully concise) preview of the oral argument that will take place before the Supreme Court later this morning in Armstrong v. Exceptional Child Center, a case I've blogged about before (and in which I've filed an amicus brief on behalf of former HHS officials and in support of the Respondents--the Medicaid providers). Rather than rehashing the arguments made by the parties or amici (or my prior posts), I wanted to use this post to make a different claim. Specifically, as I aim to demonstrate below the fold, in a Supreme Court Term the headlines from which will almost certainly be dominated by some combination of same-sex marriage, ACA subsidies, and passports for Jerusalem-born U.S. citizens, Armstrong could well be the biggest sleeper--the case that flies under the radar of all but the most ardent Court-watchers (or federal courts nerds), but produces the most significant long-term consequences for the American legal system. 

I.  The Underlying Debate in Armstrong

Among other things, Will's preview for SCOTUSblog does a really nice job of identifying the two very different threads of jurisprudence that Armstrong brings together: (1) the Supreme Court's late-developing but sweeping hostility to inferring causes of action from statutes that don't expressly provide them; and (2) the Court's longstanding practice of allowing litigants to pursue injunctive relief for constitutional violations notwithstanding the absence of an express cause of action authorizing such relief in many cases. Armstrong falls into this gap because the plaintiffs are private parties seeking to enforce a federal statute against a state officer--and they thereby have a federal statutory claim buttressed by the Constitution's Supremacy Clause. In other words, the plaintiffs are seeking to enforce the Constitution insofar as they are seeking to use it to stop a state officer from violating a federal statute.

Thus, Armstrong is different from purely statutory cases--where private parties seek to enforce federal statutes against other private parties--and from more classical constitutional cases--where private parties seek to enforce constitutional rights against government officers. As Will frames it, "[their] claim has both a statutory element and a constitutional element.  This raises the question whether it should be analogized to the statutory cause-of-action cases or the constitutional ones." And although the Supreme Court has expressly recognized the existence of a Supremacy Clause-based cause of action in such cases, it hasn't revisited that line of precedent since its more recent decisions (Alexander v. Sandoval and Gonzaga University v. Doe foremost among them) scaling back implied statutory remedies.

Trying to salvage some kind of middle ground, the federal government, as amicus curiae in support of Idaho, has argued that the Court needn't resolve that larger question because, whether or not any federal statutes can be enforced against state officers this way, the statutory provision at issue--the "equal access" mandate of the Medicaid Act--was never meant to be one of them. But if the Justices are convinced by the contrary arguments about the Medicaid Act offered by the former HHS officials' brief (I'm biased), then the Court is indeed faced with this stark choice--between treating these claims as subject to the skepticism of the Sandoval / Gonzaga line of cases, or as subject to the body of cases unhesitatingly allowing such narrow claims for injunctive relief.

II.  The Douglas Dissent--and Its Potential Consequences

As Will explains, we already have a pretty good idea how at least four of the Justices will vote, since, when this exact issue was before the Court in 2012 (in Douglas v. Independent Living Center of Southern California), Chief Justice Roberts wrote a lengthy dissent on behalf of himself and Justices Scalia, Thomas, and Alito that would have rejected the availability of a Supremacy Clause-based cause of action. In the Chief's words, 

[T]o 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 of action and 42 U.S.C. §1983 jurisprudence. . . . This body of law would serve no purpose if a plaintiff could overcome the absence of a statutory right of action simply by invoking a right of action under the Supremacy Clause to the exact same effect.

As I've written before at some length, this argument doesn't actually follow; among other things, the plaintiffs in Douglas and Armstrong are seeking injunctive relief against a state officer grounded in the Supremacy Clause--a hypernarrow claim that would be available in a far smaller class of cases (and against far fewer potential defendants) than those foreclosed by SandovalGonzaga, and their progeny. Thus, (1) recognizing such a cause of action would not provide an "end-run" in the vast majority of cases; and (2) in those cases in which it would provide such an "end-run," such an end-run is necessarily grounded in the Constitution (via the Supremacy Clause), which is simply not implicated in the Sandoval / Gonzaga line of cases. 

Separate from its analytical shortcomings, the more serious problem with the Chief Justice's dissent in Douglas is its implications. After all, it's hard to see why the same logic, if it attracts a fifth vote, wouldn't apply to "classic" constitutional claims, as well. Is it somehow less unconstitutional for a state officer to violate a federal statute than it is for a state or federal officer to violate the Bill of Rights and/or the Fourteenth Amendment? If not, why would litigants be allowed to pursue injunctive relief without an express cause of action in the latter class of cases, but not the former? Chief Justice Roberts didn't really answer this question in his Douglas dissent; he merely suggested that his reasoning wouldn't apply to "the pre-emptive assertion in equity of a defense that would otherwise have been available in the State’s enforcement proceedings at law." Thus, as I wrote after Douglas,

The dissenters would have limited Supremacy Clause-based injunctions to situations in which (1) the underlying federal right was itself privately enforceable, or (2) injunctive relief was sought to preempt an impending state enforcement proceeding. Whether or not such a result would be normatively desirable, it would be inordinately momentous, for it would suggest that the Supremacy Clause is only violated by a state’s actual enforcement of a preempted federal law, and not merely the enactment or potential enforcement thereof. In any case in which the underlying federal right could be violated without a state enforcement action, the Douglas dissenters would foreclose injunctive relief unless Congress specifically provided a cause of action.

To be sure, those who agree with Chief Justice Roberts might respond that, for constitutional provisions (unlike statutory provisions), litigants could still rely upon 42 U.S.C. § 1983 to provide a cause of action--and so injunctive relief would still be available to enforce the Bill of Rights and the Fourteenth Amendment (at least, until the Court applies Gonzaga's reasoning to such claims). But, criticallly, that caveat would not apply to claims for injunctive relief against federal officers (§ 1983 only provides a cause of action against state officers). Thus, if Armstrong comes out along the lines of the Chief Justice's Douglas dissent, it will become much harder, overnight, for parties to enforce the Constitution against the federal government.

Even if the Court finds some way to split the difference between Supremacy Clause-based claims and claims to enforce constitutional "rights," five votes for the Chief's dissent in Douglas would still make it all-but impossible to enforce most federal statutes against state officers--and, more generally, for any party to pursue Supremacy Clause-based injunctive relief in the federal courts in cases in which there is no express cause of action. This is so because federal statutes are seldom invoked as defenses to state enforcement proceedings. Indeed, the federal statutes that matter the most tend to be those, like Medicaid, that impose affirmative duties on the states--duties that can be violated through omission or inaction, i.e., by a state not enforcing anything. 

Lest this discussion seem too ethereal, consider the complaint brought by Nebraska and Wyoming against Colorado directly in the Supreme Court challenging Colorado's legalization of marijuana. For starters, it's worth flagging the fact that both Nebraska and Wyoming joined an amicus brief in support of Idaho in Armstrong that categorically argued against allowing suits for injunctive relief grounded in the Supremacy Clause (but see page 1 of their Complaint against Colorado--invoking the Supremacy Clause as the basis for relief). As Jonathan Adler rightly pointed out at the Volokh Conspiracy, such hypocrisy certainly makes these states look like "fair-weather federalists." 

Politics aside, the more important point is that the Nebraska and Wyoming complaint reflects how deeply ingrained the availability of injunctive relief under the Supremacy Clause is--whether the plaintiffs are states or Medicaid providers. If Armstrong reverses that longstanding assumption, it will make it much more difficult for litigants to (1) enforce constitutional rights against federal officers; and (2) prevent state officers from violating federal law. That makes it a hugely important case--and my vote for the potential "sleeper" of the Court's October 2014 Term.

Posted by Steve Vladeck on January 20, 2015 at 05:41 AM in Steve Vladeck | Permalink


As an initial matter, Chief Justice Roberts’ reasoning is very specific to the Supremacy Clause and what it means for a plaintiff to invoke it. As he put it, “The purpose of the Supremacy Clause is . . . to ensure that, in a conflict with state law, whatever Congress says goes. . . . Thus, if Congress does not intend for a statute to supply a cause of action for its enforcement, it makes no sense to claim that the Supremacy Clause itself must provide one.” In short, the Supremacy Clause cannot be a tool for disregarding congressional intent. That reasoning has no purchase when it comes to other constitutional rights.

That said, I gather your concern is the Douglas dissent’s refusal to allow the plaintiffs’ lawsuit to proceed under federal courts’ equitable power. If that was the sole basis for federal suits to enjoin unconstitutional state action, I would share your concern. But I don’t think it is. The standard view is that Ex parte Young established (or confirmed) the existence of implied rights of action under the Constitution itself. Nothing in Chief Justice Roberts’ dissent calls that into question.

In the end, I would say this: If a majority of the Court were hell-bent on eliminating actions to enjoin unconstitutional state action, this case could be a first step toward that destination. But I don’t think the Justices have any desire to go down that path. The Justices — the 4 Douglas dissenters plus however many (if any) who join them in Armstrong — will have no difficulty confining their reasoning to preemption cases.

Posted by: Dan Schweitzer | Jan 26, 2015 2:26:18 PM

Hi Dan -- Thanks for your comments, and your undeservedly nice words about the brief.

On the merits, I don't want to relitigate my discussion with Jack about the uniqueness of the Supremacy Clause. Certainly it's true that suits to enforce the Supremacy Clause are different from, e.g., suits to enforce the Fourth Amendment. But it's just as true that suits to enforce the Supremacy Clause are different from suits to enforce federal statutes in the abstract. In other words, it's true, but only so far as it goes.

Rather, I want to push back against your suggestion that a decision along the lines of Chief Justice Roberts's dissent in Douglas wouldn't have the implications I fear for "the right of individuals to bring suit to enjoin unconstitutional state action." Is that simply because you believe such suits would still be available under 42 U.S.C. § 1983? If so, (1) what about challenging unconstitutional _federal_ action?; and (2) why wouldn't the logic of Gonzaga--which only allows suits to enforce statutes that are clearly meant to be privately enforceable--together with the Court's recent hostility to Bivens, lead it to conclude that even more conventional constitutional "rights" aren't enforceable via 1983? That is, what's the analytical explanation for why nonstatutory suits to enforce constitutional rights are different (and more available) than nonstatutory suits to enforce the Supremacy Clause?

Posted by: Steve Vladeck | Jan 24, 2015 10:08:35 AM

As someone who assisted California in Douglas and Idaho in Armstrong, a few reactions to Steve’s take on the case. First, a core premise of the states’ argument is precisely that Supremacy Clause cases are fundamentally different than constitutional cases. There are many ways of getting there, such as statements by the Supreme Court that the Supremacy Clause is not a “source of any federal rights” and that it simply “accord[s]” federal rights “priority whenever they come into conflict with state law.” By contrast, the Equal Protection and Due Process Clauses (for example) plainly are sources of federal rights.

Jack’s hypothetical jurisdiction-stripping example is another. Congress surely can provide that only a federal agency can enforce a provision of a Spending Clause contract that doesn’t create any private rights. (Jim Piotrowski candidly admitted that during his argument on Monday. I should add that he did an excellent job, as did Carl Withroe for Idaho and (it goes without saying) Ed Kneedler for the United States.) And so it comes down to congressional intent. That distinguishes so-called Supremacy Clause claims from true constitutional claims. (As Jack said, it seems doubtful that Congress can pass a law and then say that no private entity can challenge the law as violating the First Amendment.)

The question in Armstrong then becomes whether Congress intended to create a cause of action for providers to enforce a provision of the Medicaid Act that gives them no rights, mandates no particular rates (not even “reasonable” rates), and calls upon the states and HHS to make a policy judgment between “methods and procedures” that produce “efficiency [and] economy,” on the one hand, and “enlist[ing] enough providers,” on the other. Did Congress intend to allow incidental (as opposed to intended) beneficiaries of that contractual provision to sue to enforce it? I think not. It left that job to HHS. (And, yes, I understand the Court has said that Spending Clause contracts should not be treated in all respects like ordinary contracts. But the point holds. We are talking about an agreement between the federal government and the states, and a provision of that agreement that creates no private rights.)

As to the impact of the case, it’s certainly important but not as far-reaching as Steve suggests. It does not call into question the right of individuals to bring suit to enjoin unconstitutional state action. And it does not call into question the large bulk of preemption cases, most of which arise under federal laws that create rights or seek to enjoin anticipated state enforcement actions (or anticipated state intrusions on property interests).

I could go on, but my goal isn’t to re-brief the case; it’s just to present a taste of the other side. Finally, Steve deserves enormous credit for writing the rare amicus brief that truly caught the Justices’ attention. It’s not easy to provide “value added” in an amicus brief, but Steve’s surely did (even if I don’t agree with its contentions).

Posted by: Dan Schweitzer | Jan 22, 2015 4:38:14 PM

Jack -- I guess you and I fundamentally disagree about the Supremacy Clause. In my view, the Supremacy Clause only _binds_ government officers because the Constitution does not invest me, as a private person, with any powers. As you note, the only times the Constitution deals with private conduct are the two instances in which it prohibits it... Thus, I can violate state law or federal law, but I can't violate the Supremacy Clause because I can't _enforce_ state or federal law in violation of the "supreme law of the land."

That, to me, is the key to this case--and to this debate. It's only the enforcement of preempted state (or unconstitutional federal) law that gives rise to the unique action in equity the plaintiffs are pursuing here, as opposed to a more general ability to sue anyone who violates one's "rights." I grant, as I must, that the Supreme Court has been less-than-clear about this distinction historically, but it exists nonetheless--as the 57 cases the Respondents identified in their merits brief underscore.

Oh well--guess we'll see...

Posted by: Steve Vladeck | Jan 21, 2015 3:38:23 PM

Thanks for your response, Steve. I agree that this is a weird case, but also one that raises some fundamental questions. I guess one fundamental question I have is this: can a private person "violate the Supremacy Clause." You seem to think not, but I'm not so sure.

The way I see it is this: As a private person walking down the street, I have an obligation to obey all valid law that applies to me. Generally speaking, this consists of local, state and federal law. When local or state law conflicts with federal law, I have to decide which of those to follow. One piece of federal law--the Supremacy Clause--tells me to follow federal law and ignore contrary lower law. If, despite this, I obey state law instead, have I "violated" the Supremacy Clause? We normally don't think of the federal constitution as imposing duties on private persons (except for the thirteenth amendment), so it's weird to think that you and I have to obey the supremacy clause, but it's certainly also weird to think we can ignore it. Of course we can't ignore it. We have to obey it.

I may not be getting your argument here, but it seems to me that everyone--public or private--has to obey the Supremacy Clause. If this is so, Chief Justice Roberts concern about the floodgates from yesterday's argument becomes a lot more realistic. I guess one way out of this conclusion is to say that, as I suggested before, that the Supremacy Clause is a choice of law device (an instruction to judges, not people). But if that is the case, then its hard to see the Supremacy Clause as meriting its own cause of action.

Anyway, just some food for thought. Thanks again for your post.

Posted by: Jack Preis | Jan 21, 2015 12:13:12 PM

Will -- Indeed. I guess "expressly" may be slightly overstated, but I've always understood footnote 14 in Shaw (as, if memory serves, most of the circuits have) as recognizing the appropriateness not just of federal jurisdiction over such suits, but also of an implied cause of action in such cases. See also Justice Harlan's concurrence in Bivens...

Jack -- On your hypothetical, I _do_ think a statute affirmatively barring enforcement of a constitutional claim would be unconstitutional at least in those cases in which the litigant had a due process right to the underlying claim. This is exactly why I think the D.C. Circuit has been too simplistic in upholding 28 U.S.C. 2241(e)(2) as applied to _all_ Bivens claims--as opposed to those that are meritless.

But I don't think it follows at all that "Congress [can't] create a statutory right without at the same time being compelled to permit private enforcement." For starters, private defendants aren't bound by the Supremacy Clause in the way that state and federal officers are. Thus, a private university isn't violating the Supremacy Clause when it violates, inter alia, Title IX. This is why these cases are unique--it's a very small class of lawsuits that directly implicate the Supremacy Clause, as compared to run-of-the-mill private suits.

In any event, the Supremacy Clause isn't even implicated in _all_ suits against state or federal officers--just those where the claim is that the officer is carrying out some mandate in violation of the Supremacy Clause, as in preemption cases like Armstrong. The Supremacy Clause may well be "different" from other constitutional provisions, but in degree rather than kind. What's more important here is how different the Supremacy Clause is from the wholly statutory claims in cases like Sandoval and Gonzaga--and, therefore, how unavailing Chief Justice Roberts's analogy to that jurisprudence is.

Posted by: Steve Vladeck | Jan 21, 2015 5:23:44 AM

I'm exceedingly biased (I represent Respondents in Armstrong), but I agree the case is potentially more important than the coverage would seem to indicate. I also was struck by the decision of Wyoming and Nebraska to take advantage of precisely the cause of action they assert does not exist in their amicus filing in Armstrong. But it is not all that different than the fact that even the Chief Justice stated in Free Enterprise Fund that "equitable relief has long been recognized as the appropriate means for preventing entities from acting unconstitutionally," but in Douglas would have imposed new limitations on such cases. It certainly seems to be a matter of wanting it when they want it, and not wanting it when they do not.

Posted by: James Piotrowski | Jan 20, 2015 11:34:51 PM

“Is it somehow less unconstitutional for a state officer to violate a federal statute than it is for a state or federal officer to violate the Bill of Rights and/or the Fourteenth Amendment?” No, it’s not. But I’m not sure that’s the right way to frame it.

Suppose Congress tells the federal courts that they have no jurisdiction to hear cases asserting First Amendment claims to freedom of speech. This statute, in prohibiting federal courts from enforcing the Constitution, is arguably unconstitutional (depending on your view of jurisdiction stripping, judicial power, etc). Now suppose that Congress passes a federal statute and explicitly bars private enforcement of the statute. Wouldn’t this create the same type of constitutional problem as in the free speech case? After all, hasn’t congress, by barring private causes of action in the statutory case, told the federal courts, “you know that thing called the Supremacy Clause? You may not enforce it.”

So if it just as unconstitutional for a state official to violate the Supremacy Clause as the Bill of Rights, shouldn’t it be just as unconstitutional for Congress to prohibit the federal courts from enforcing the Supremacy Clause as the Bill of Rights? And if that’s true, then how can Congress create a statutory right without at the same time being compelled to permit private enforcement?

I’m not sure I completely buy Thomas’ choice of law approach to the Supremacy Clause, but I do think the Supremacy Clause is just different.

Posted by: Jack Preis | Jan 20, 2015 2:07:12 PM

Great post, Steve, and thanks for the kind words. Just to check, when you say that Shaw v. Delta Airlines (linked above) "expressly recognized a Supremacy Clause-based cause of action" are you referring to the 14th footnote that the parties argue about, or something else?

(Here's the footnote for those reading along at home.)

14: The Court's decision today in Franchise Tax Board v. Construction Laborers Vacation Trust, ante, p. 1, does not call into question the lower court's jurisdiction to decide these cases. Franchise Tax Board was an action seeking a declaration that state laws were not pre-empted by ERISA. Here, in contrast, companies subject to ERISA regulation seek injunctions against enforcement of state laws they claim are pre-empted by ERISA, as well as declarations that those laws are pre-empted.

It is beyond dispute that federal courts have jurisdiction over suits to enjoin state officials from interfering with federal rights. See Ex parte Young, 209 U.S. 123, 160 -162 (1980). A plaintiff who seeks injunctive relief from state regulation, on the ground that such regulation is pre-empted by a federal statute which, by virtue of the Supremacy Clause of the Constitution, must prevail, thus presents a federal question which the federal courts have jurisdiction under 28 U.S.C. 1331 to resolve. See Smith v. Kansas City Title & Trust Co., 255 U.S. 180, 199 -200 (1921); Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 152 (1908); see also Franchise Tax Board, ante, at 19-22, and n. 20; Note, Federal Jurisdiction over Declaratory Suits Challenging State Action, 79 Colum. L. Rev. 983, 996-1000 (1979). This Court, of course, frequently has resolved pre-emption disputes in a similar jurisdictional posture. See, e. g., Ray v. Atlantic Richfield Co., 435 U.S. 151 (1978); Jones v. Rath Packing Co., 430 U.S. 519 (1977); Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132 (1963); Hines v. Davidowitz, 312 U.S. 52 (1941).

Posted by: William Baude | Jan 20, 2015 11:26:50 AM

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