So what’s the deal with the Supremacy Clause? Well, only four Justices in dissent were willing to say anything about it, and whether it creates a private cause of action. Here is my analysis of Douglas v. Independent Living Center of Southern Cal., Inc.
The majority, by Breyer, for Kennedy, GInsburg, Sotomayor, and Kagan. The dissent by the Chief, joined by Scalia, Thomas, and Alito.
As a threshold matter, the majority and dissent don’t seem to even agree about what the case is about!
We granted certiorari in these cases to decide whether Medicaid providers and recipients may maintain a cause of action under the Supremacy Clause to enforce a federal Medicaid law—a federal law that, in their view, conflicts with (and pre-empts) state Medicaid statutes that reduce payments to providers.
The Chief disagreed, noting:
During briefing and argument in this case, the parties have debated broad questions, such as whether and when constitutional provisions as a general matter are directly enforceable. It is not necessary to consider these larger issues. It is not even necessary to decide whether the Supremacy Clause can ever provide a private cause of action. The question presented in the certiorari petitions is narrow: “Whether Medicaid recipients and providers may maintain a cause of action under the Supremacy Clause to enforce [§30(A)] by asserting that the provision preempts a state law reducing reimbursement rates.” To decide this case, it is enough to conclude that the Suprem- acy Clause does not provide a cause of action to enforce the requirements of §30(A) when Congress, in establishing those requirements, elected not to provide such a cause of action in the statute itself.
In any event, both groups seem to concede that the facts have changed:
Since we granted certiorari, how- ever, the relevant circumstances have changed. The fed- eral agency in charge of administering Medicaid, the Cen- ters for Medicare & Medicaid Services (CMS), has now approved the state statutes as consistent with the federal law. In light of the changed circumstances, we believe that the question before us now is whether, once the agen- cy has approved the state statutes, groups of Medicaid providers and beneficiaries may still maintain a Suprem- acy Clause action asserting that the state statutes are inconsistent with the federal Medicaid law. For the rea- sons set forth below, we vacate the Ninth Circuit’s judg- ments and remand these cases for proceedings consistent with this opinion.
Whenever a majority opinion on a big case is 8 pages, you know it’s a duck!
So here’s how Breyer characterizes the 9th Circuit’s seven opinions:
The decisions ultimately affirmed or ordered preliminary injunctions that prevented the State from im- plementing its statutes. They (1) held that the Medi- caid providers and beneficiaries could directly bring an action based on the Supremacy Clause; (2) essentially accepted the claim that the State had not demonstrated that its Medicaid plan, as amended, would provide suffi- cient services; (3) held that the amendments consequently conflicted with the statutory provision we have quoted; and (4) held that, given the Constitution’s Supremacy Clause, the federal statute must prevail. That is to say, the federal statute pre-empted the State’s new laws.
But the posture changed after cert was granted.
The cases were in this posture when we granted certiorari to decide whether respondents could mount a Supremacy Clause challenge to the state statutes and obtain a court injunc- tion preventing California from implementing its statutes.
About a month after we heard oral argument, the feder- al agency reversed course and approved several of Califor- nia’s statutory amendments to its plan
So why wasn’t this case DIG’D?
Anyway, Breyer seems to think an APA challenge is better than this Supremacy Clause challenge:
Nor have the parties suggested reasons why, once the agency has taken final action, a court should reach a different result in a case like this one, depending upon whether the case proceeds in a Supremacy Clause action rather than under the APA for review of an agency deci- sion. Indeed, to permit a difference in result here would subject the States to conflicting interpretations of federal law by several different courts (and the agency), thereby threatening to defeat the uniformity that Congress in- tended by centralizing administration of the federal pro- gram in the agency and to make superfluous or to under- mine traditional APA review.
If the two kinds of actions should reach the same result, the Supremacy Clause challenge is at best redundant. And to permit the continuation of the action in that form would seem to be inefficient, for the agency is not a participant in the pend- ing litigation below, litigation that will decide whether the agency-approved state rates violate the federal statute.
It is so ordered.
And here’s the end. Total gobbledygook, even for Breyer:
In the present posture of these cases, we do not address whether the Ninth Circuit properly recognized a Suprem- acy Clause action to enforce this federal statute before the agency took final action. To decide whether these cases may proceed directly under the Supremacy Clause now that the agency has acted, it will be necessary to take account, in light of the proceedings that have already taken place, of at least the matters we have set forth above. It must be recognized, furthermore, that the par- ties have not fully argued this question. Thus, it may be that not all of the considerations that may bear upon the proper resolution of the issue have been presented in the briefs to this Court or in the arguments addressed to and considered by the Court of Appeals. Given the complexity of these cases, rather than ordering reargument, we va- cate the Ninth Circuit’s judgments and remand the cases, thereby permitting the parties to argue the matter before that Circuit in the first instance.
I have never read a Supreme Court opinion that said less. Breyer should have added an LOLCAT or something to the end.
Robert’s dissent has some good stuff on the Supremacy Clause:
To decide this case, it is enough to conclude that the Suprem- acy Clause does not provide a cause of action to enforce the requirements of §30(A) when Congress, in establishing those requirements, elected not to provide such a cause of action in the statute itself.
The Supremacy Clause operates differently than other constitutional provisions. For example, if Congress says in a law that certain provisions do not give rise to a taking without just compensation, that obviously does not resolve a claim under the Takings Clause that they do. The Su- premacy Clause, on the other hand, is “not a source of any federal rights.” Chapman v. Houston Welfare Rights Organization, 441 U. S. 600, 613 (1979); accord, Dennis v. Higgins, 498 U. S. 439, 450 (1991) (contrasting, in this regard, the Supremacy Clause and the Commerce Clause). The purpose of the Supremacy Clause is instead to ensure that, in a conflict with state law, whatever Congress says goes. See The Federalist, No. 33, p. 205 (C. Rossiter ed. 1961) (A. Hamilton) (the Supremacy Clause “only declares a truth which flows immediately and necessarily from the institution of a federal government”).
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. Saying that there is a private right of action under the Supremacy Clause would substantively change the federal rule established by Congress in the Medicaid Act. That is not a proper role for the Supremacy Clause, which simply ensures that the rule established by Congress controls.
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 of action and 42 U. S. C. §1983 jurisprudence. We have em- phasized that “where the text and structure of a statute provide no indication that Congress intends to create new individual rights, there is no basis for a private suit, whether under §1983 or under an implied right of action.” Gonzaga Univ. v. Doe, 536 U. S. 273, 286 (2002). 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.
But what about equity? Nope, time to cite a maxim.
The providers and beneficiaries argue, however, that the
traditional exercise of equity jurisdiction supports finding a direct cause of action in the Supremacy Clause. This contention fails for the same reason. It is a longstand- ing maxim that “[e]quity follows the law.” 1 J. Pomeroy, Treatise on Equity Jurisprudence §425 (3d ed. 1905).
A court of equity may not “create a remedy in violation of law, or even without the authority of law.” Rees v. Water- town, 19 Wall. 107, 122 (1874). Here the law established by Congress is that there is no remedy available to private parties to enforce the federal rules against the State. For a court to reach a contrary conclusion under its general equitable powers would raise the most serious concerns regarding both the separation of powers (Congress, not the Judiciary, decides whether there is a private right of action to enforce a federal statute) and federalism (the States under the Spending Clause agree only to conditions clearly specified by Congress, not any implied on an ad hoc basis by the courts).
“The most serious concerns” Oh Noes! I’m glad PPACA is less serious.
This paragraph SO looks like AMK asked to have it inserted (except AMK was in the majority)
This is not to say that federal courts lack equitable powers to enforce the supremacy of federal law when such action gives effect to the federal rule, rather than con- travening it. The providers and beneficiaries rely heavily on cases of this kind, most prominently Ex parte Young, 209 U. S. 123 (1908). Those cases, however, present quite different questions involving “the pre-emptive assertion in equity of a defense that would otherwise have been avail- able in the State’s enforcement proceedings at law.” Vir- ginia 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.
And Roberts takes the majority’s non-opinion to task:
The Court decides not to decide the question on which we granted certiorari but instead to send the cases back to the Court of Appeals, because of the recent action by CMS approving California’s new reimbursement rates. But the CMS approvals have no impact on the question before this Court. If, as I believe, there is no private right of action under the Supremacy Clause to enforce §30(A), that is the end of the matter. If, on the other hand, the Court be- lieves that there is such a cause of action, but that CMS’s recent rate approvals may have an effect on that action going forward, then the Court should say just that and then remand to the Ninth Circuit for consideration of the effect of the agency approvals.
I am not sure what a remand without answering the preliminary question is meant to accomplish. The major- ity claims that the agency’s recent action “may change the [lower courts’] answer” to the question whether the partic- ular state rates violate §30(A). Ante, at 6. But that fact- specific question is not the one before us; we chose not to grant certiorari on the question whether California’s rates complied with §30(A), limiting our grant to the cause of action question. 562 U. S. ___ (2011).
And Roberts doesn’t seem comfortable giving the 9th Circuit discretion to do anything:
The majority acknowledges, in light of all this, that the Supremacy Clause challenge appears “at best redundant,” and that “continuation of the action in that form would seem to be inefficient.” Ante, at 8. Still, according to the majority, the Court of Appeals on remand could determine that the Supremacy Clause action may be brought but then must abate “now that the agency has acted,” ibid.— as everyone knew the agency would. A Court concerned with “inefficien[cy]” should not find that result very pal- atable, and the majority cites no precedent for a cause of action that fades away once a federal agency has acted. Such a scenario would also create a bizarre rush to the courthouse, as litigants seek to file and have their Su- premacy Clause causes of action decided before the agency has time to arrive at final agency action reviewable in court.
I would dispel all these difficulties by simply holding what the logic of the majority’s own opinion suggests: When Congress did not intend to provide a private right of action to enforce a statute enacted under the Spending Clause, the Supremacy Clause does not supply one of its own force. The Ninth Circuit’s decisions to the contrary should be reversed.
So how do i score this for purposes of FantasySCOTUS?
Based on the question presented (as noted by Roberts), the majority didn’t really reverse, even though they vacated the lower court opinion. I am inclined to making this 5-4. And really, remanding this issue to the 9th Circuit, while giving them discretion, is effectively affirming it 🙂