Armstrong and Implied Public Rights of Action

Thank you to PrawfsBlawg and Howard for the opportunity to join the conversation as a guest blogger this month.  I'd like to begin by raising a question about the enforcement of federal law:  May federal courts imply public rights of action when Congress has not expressly authorized it?  

I have written about this question before here and, to a lesser extent, here.  The problem of implied public rights of action in favor of the United States and the states has some differences (and some similarities) with the problem of implied private rights of action in favor of private litigants.  Recently I've been mulling over the problem in light of Armstrong v. Exceptional Child Center, Inc.  (For Steve's and Howard's commentaries on Armstrong, which raise intriguing but different questions than mine, go here and here.)  The reason I've been mulling over Armstrong is Justice Breyer's concurrence, which suggests that the United States might have an implied public right of action to enforce the "equal access" mandate of the Medicaid Act even though private litigants do not.

Prior to Armstrong, implied rights of action under the Supremacy Clause had become an important way for beneficiaries to enforce federal regulatory programs.  For some time, however, this right of action had been on a collision course with the Court's retrenchment from implied private rights of action under federal statutes and private enforcement via Section 1983.  And in Armstrong they collided.

Writing for the Court, Justice Scalia explained the Supremacy Clause states only a "rule of decision" and does not support implied rights of action.  How, then, have federal courts granted injunctions against state officials without express congressional authorization?  Judge-made remedies, Justice Scalia responded, are appropriate "in some circumstances," such as in Ex parte Young.  Congress may, however, preclude judge-made equitable remedies and, the Court held, had done so by authorizing the Secretary of Health and Human Services to withhold Medicaid funding for violations of the statute.  

It remains to be seen how much private enforcement of federal law has been swept aside by the Armstrong Court.  One possibility is "not much."  As others have noted, the Court honed in on specific features of the Medicaid Act that it held precluded private enforcement.  

What I'm most intrigued by is what Armstrong portends for public, rather than private, enforcement.  Here's where Justice Breyer's concurring opinion interests me.  He suggested that "[i]f withholding funds does not work, the federal agency may be able to sue a State to compel compliance with federal rules."  Breyer cited Arizona v. United States, in which the Obama Administration sued to enjoin Arizona's "hand me your papers, please" immigration policy.  As I've explained elsewhere, the Administration relied upon an implied public right of action to enforce federal supremacy over immigration matters.  Justice Breyer's citation to Arizona presents a puzzle:  Why would Congress's selection of a public remedy to enforce the Medicaid Act implicitly preclude private enforcement but not additional public enforcement?  If anything, the argument might run, the specification of a public remedy implicitly precludes other public remedies but not private ones.

To press the argument further, we might say that Armstrong's interpretation of the Supremacy Clause sweeps away implied public rights of action in cases like Arizona v. United States.  Now that we know the Supremacy Clause doesn't support rights of action, the most obvious places to turn for judicial authority to imply public rights of action are Article II (when the federal executive sues), the specific constitutional or statutory provision at issue, or federal equity.  I've never been comfortable with the view that Article II alone implies and even requires public rights of action.  In some cases other constitutional provisions or statutory provisions will support implied public rights of action.  That leaves equity, which Armstrong reaffirms "in some circumstances."  Perhaps implied public rights of action for injunctive relief fit within those circumstances, but in some cases, including Arizona, that's far from clear.   

Comparing Justice Scalia's and Justice Breyer's opinions muddies the waters.  Justice Scalia offers some examples where federal courts may fashion equitable remedies.  Regulated parties are in, it seems, but beneficiaries of federal regulation (and the federal government in many cases) may be out.  Scalia also suggests the history of English equity matters, which recalls his restrictive approach to private remedies in Grupo Mexicano de Desarrollo, S.A. v. Alliance Bond Fund, Inc. and Great-West Life & Annuity Insurance Co. v. Knudson.  (For a fascinating discussion of these cases' restriction of remedies, see Judith Resnik's 2003 article.)  If the federal government cannot analogize itself to a regulated party claiming an immunity from state regulation, Scalia's vision of equity might preclude an implied public right of action.  By contrast, Justice Breyer's view leaves implied public rights of action against state officials largely, if not entirely, intact.  His concern was that private remedies may interfere with agency expertise.  And, not surprisingly, he was comfortable with an implied public right of action to give HHS another tool to enforce federal rules.  

Moving forward from Armstrong, it will be necessary to take greater care to tease out not only the distinction I'm raising here between implied private and public rights of action but also the distinction Mike Dorf draws here between statutory and constitutional enforcement.  Where the federal government claims that the Constitution itself (rather than a statute plus the Supremacy Clause) preempts a state's action, including in an immigration case like Arizona v. United States, both distinctions matter.  Thus, Armstrong raises interesting and practically important questions not just for private, but also for public, enforcement.