The Changing Face of Federal Supremacy

By now, the observation's familiar, maybe banal:  How law's enforced matters.  It matters as much, maybe more, than what the law books say our rights and duties are.  As long as it's not enforced, a law against eating fried chicken with a fork is funny.  But more often than not the stakes for people's lives aren't merely academic or the least bit funny.

Take enforcement of federal law.  The Supreme Court's made some important decisions about this topic recently.  In Shelby County v. Holder, for example, the Court stopped preclearance under Section 5 of the Voting Rights Act by striking down Section 4, which identified the jurisdictions that had to preclear their election laws.  Texas announced it would enforce a strict voter ID law the same day as the Court's decision, and a spate of states followed suit.  In a more recent decision, Armstrong v. Exceptional Child Center, the Court held that the remedy for violations of Medicaid's "equal access" mandate is for the Secretary of Health and Human Services to withhold funding, not for beneficiaries to sue states.  It's not clear that'll work, though Eloise Pasachoff has recently argued we need to rethink the merits of cutting off funding.

Shelby County and Armstrong don't seem to have anything to do with one another.  One was about voting rights and the other Medicaid.  One was about the states' "equal sovereignty" and the other about judicial remedies for federal rights.  But I've been reading the two cases together recently.  And, when read together, they suggest the Court's reinterpreting the Supremacy Clause to transform remedies against the states.

It's apparent that Armstrong tells us something important about the Supremacy Clause.  In particular, the Court rejected the view that the Supremacy Clause supports implied rights of action to injunctive relief against state officials who violate federal statutes.  The Clause says, "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."  The Court held nothing in that text creates a right of action.

By contrast, it's easy to miss what Shelby County says about the Supremacy Clause.  But it's worth reading closely.  Given the Supremacy Clause, the Court explained, "[s]tate legislation may not contravene federal law."  Nothing new here.  The Court then considered the Clause's legislative history:  "The Federal Government does not, however, have a general right to review and veto state enactments before they go into effect.  A proposal to grant such authority to 'negative' state laws was considered at the Constitutional Convention, but rejected in favor of allowing state laws to take effect, subject to later challenge under the Supremacy Clause."  This history's also familiar, but I think the Court stretched if it meant to intimate the history can tell us if preclearance under the VRA is constitutional.  (Of course, the Court reserved that question, at least formally, by striking down only Section 4.)

The Shelby County Court concluded its discussion of the Supremacy Clause thus:  "Outside the strictures of the Supremacy Clause, States retain broad autonomy in structuring their governments and pursuing legislative objectives.  Indeed, the Constitution provides that all powers not specifically granted to the Federal Government are reserved to the States or citizens.  Amdt. 10."  Now, reading the Supremacy Clause as a limit on federal power isn't itself surprising.  Bradford Clark, for instance, has argued that the Clause both secures federal supremacy and limits federal power.   But the Shelby County Court's structural interpretation of the Supremacy Clause is especially provocative.  Taken seriously, it suggests that the Supremacy Clause, when read with the Tenth Amendment, reflects a structural principle of state autonomy that limits how federal law may be enforced. This structural principle, moreover, holds that the Federal Government does not have powers that aren't "specifically granted."

Now turn back to Armstrong, where the Court refused to read the Supremacy Clause in structural terms.  After Armstrong, we know that implied injunctive remedies against state officials, to borrow a phrase from Shelby County, aren't within "the strictures of the Supremacy Clause."  Instead, they are judge-made law.  In an era of judicial suspicion of federal common law, that puts them on uncertain footing.  This footing is all the more uncertain if we think the Supremacy Clause's most important lesson about federal remedies is a structural principle favoring state autonomy and limiting federal power to anything not "specifically granted."

What connects Armstrong and Shelby County, in other words, is the changing face of federal supremacy.  Where the Clause once supported rights to remedies against state officials, now it supports state rights against remedies.  It's a clever move, but Medicaid beneficiaries and minority voters aren't likely to laugh.