Argument recap: To narrow Ex parte Young, or not
on Oct 3, 2011 at 4:45 pm
When the Supreme Court has been doing something under the Constitution since 1824, as one Justice pointed out Monday, that perhaps should not need to be explained and maybe ought even to be free from reconsideration. But some members of the Court seemed to be suggesting, in an important public benefits case from California, that it might be time to take a new look at how open the courts should be to claims that states are getting in the way of enforcing federal law. At stake, it appears, is the fate of Ex parte Young (which dates to 1908, but embodies an older constitutional principle — the right to sue state officials directly for violating a federal law’s guarantees).
The Young precedent, of course, had its defenders on the bench during the oral argument in Douglas v. Independent Living Center (09-983), and two related cases, but they sometimes seemed on the defensive. The Court’s principal defender of the idea that federal government agencies usually do a better job than courts, Justice Stephen G. Breyer, was mainly responsible for setting the tone of argument as he imagined hundreds and hundreds of lawsuits complaining that states are not carrying out their duties under scores of federal laws, with the result that “it just stops” the federal agencies tasked with enforcing those laws from “doing their business.” Breyer summed up: “It’s a mess, in other words.”
Carter G. Phillips, the lawyer for California Medicaid patients and their care providers who have sued to stop state Medicaid reimbursement cuts, was Breyer’s target. Relying on Ex Parte Young and a very lengthy string of other Supreme Court precedents, Phillips sought to fend off Breyer’s thrusts by saying he was not arguing for such a sweeping expansion of litigation, but only for a right for persons whom Congress intended to benefit to be able to sue to see that federal supremacy is maintained and their “life or death” benefits secured. Unyielding, Phillips even drew a mild rebuke from Justice Sonia Sotomayor, who wondered why Phillips was “fighting Justice Breyer so much.”
Although Phillips insisted that he was not doing that, it was obvious that Breyer was not only speaking for himself, but was actively reinforcing the skepticism that emerged, from time to time, in milder form from other Justices, and Phillips had to try to head that off. For example, Justice Anthony M. Kennedy, whose vote may be crucial to Phillips’ clients, was led to wonder whether the lawyer had any authority other than Ex parte Young that would justify letting the beneficiaries of a federal program go into court to get an injunction under the Constitution’s Supremacy Clause against a state to ensure that federal law prevails. Earlier in the argument, by contrast, Kennedy had seemed unimpressed with the complaint, by California’s lawyer, that “the sky is falling” (as Kennedy put her argument) if courts were free to police states’ compliance with Medicaid’s federal mandates.
On Phillips’ side, going into the oral argument, was, of course, the fact that federal courts for generations have been hearing and deciding cases in which individuals sued under a variety of laws to compel states to conform, and that was just accepted practice. Justice Sonia Sotomayor noted that that had been going on since 1824. The federal government, in the Douglas cases, though, is making the argument that the practice went on without the Court really paying attention, in the sense that it was not examining what it was doing as the process went on.
The government’s lawyer at the podium, Deputy Solicitor General Edwin S. Kneedler, made an effort not to be disrespectful toward all of those precedents, and so tried to make the point that Medicaid was really different because it was a joint, cooperative enterprise, fit for management by administrative agencies, not by courts. Kneedler also argued that he was simply trying to carve out an exception to litigation, when what was at stake was a program adopted by Congress under its Spending Clause power. California’s Supervising Deputy Attorney General, Karin S. Schwartz, also sought to make that point, stressing that Congress did not explicitly create a right to sue under Medicaid, but opted instead for administrative management.
Several members of the Court seemed to find the Kneedler argument to have merit, which is not a good sign for the Medicaid patients and their care-givers in this case. If they don’t get a right to sue, they must depend entirely upon federal officials whose only power is to shut off federal funds entirely to a state that does not follow the federal law or regulations on Medicaid payment schedules.
However many precedents there are to buttress the kind of right to sue that Phillips was arguing (as Justice Sotomayor put it, the Court has had “many others that are not dissimilar to this case”), there is a strong strain of doubt within the Court under Chief Justice John G. Roberts, Jr., about courts that are perceived to have taken on too much of the task of managing society’s problems. As Roberts remarked to Phillips at one point: “Why doesn’t your position constitute a complete end-run around all of our implied right-of-action jurisprudence? We have wasted a lot of time trying to figure out whether there’s an implied right of action under a particular statute if there has always been one under the Supremacy Clause.”