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 Sandoval, Gonzaga, 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.