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Argument preview: A second attempt at defining preemption actions

Tomorrow the Court will hear arguments in Armstrong v. Exceptional Child Center.  The specific dispute in the case is whether the state’s Medicaid reimbursements should be invalidated under a provision of federal law, 42 U.S.C. § 1396a(a)(30)(A).  But the question underlying that dispute has implications far beyond Medicaid. 

That underlying question is whether the Supremacy Clause of the Constitution gives plaintiffs a cause of action to enjoin state action as preempted, even when the preempting statute does not.  The case exposes a tension between the two very different ways the Court has viewed causes of action in the constitutional and statutory contexts, and it is unclear which one will prevail.

As a point of background, the Court had granted certiorari on this question three terms earlier, in another Medicaid case, Douglas v. Independent Living Center.  But agency developments while the case was pending caused a majority of the Court to remand the case without deciding the core legal question.  Four Justices, in a dissent written by Chief Justice John Roberts, would have ruled that there was no cause of action.  That dissent looms large over tomorrow’s arguments.  The state will prevail if those four Justices adhere to their views and persuade a fifth to join them.

Now for the legal issue:  A plaintiff who seeks to enforce a federal statute needs a cause of action.  In a line of cases beginning with Cort v. Ash, the Court has made such causes of action relatively hard to find.  In most cases the statute must either provide such a cause of action explicitly, or else make it surpassingly obvious that one was intended (which is unlikely if none was explicitly provided).

Plaintiffs have also sought to enforce statutes under the cause of action contained in the federal civil rights statute, 42 U.S.C. § 1983.  In a related line of cases, especially Gonzaga University v. Doe, the Court has made that cause of action hard to obtain as well.  Plaintiffs must show that the federal statute creates an individual right, which it is unlikely to do if it does not create a cause of action.  In sum, it’s very hard to find an implicit cause of action to enforce a federal statute.

The Court’s constitutional cause of action jurisprudence has followed a different path.  In general, a cause of action to enjoin an official from violating the Constitution has been made widely available.  Suits against state officials for the violation of a constitutional right can be brought under Section 1983.  And even when Section 1983 is unavailable the Court has allowed injunctions to be sought directly under the Constitution.  Just a few years ago, for instance, in Free Enterprise Fund v. PCAOB, the Court recognized an injunctive cause of action against federal officials for a violation of the Constitution’s separation of powers.  (In a separate line of cases, “Bivens” suits for damages outside of Section 1983 have been tightly constrained, but their logic has not been extended to suits for injunctive relief.)

In this case, the plaintiffs are Medicaid providers who argue that recent changes to Idaho’s Medicaid reimbursement rates conflict with the requirements of the Medicaid statute, and therefore also violate the Constitution’s Supremacy Clause, which says that federal law preempts contrary state law.  The 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.

The Medicaid providers succeeded before the Ninth Circuit, so the petitioners are Idaho officials.  They argue that the statutory cause-of-action cases are central here.  Congress did not create a cause of action here, they argue, and the Supremacy Clause should not be used to circumvent that choice.  The cases enforcing constitutional provisions do not apply to the Supremacy Clause because it is a “rule of decision” rather than the source of a federal right.  And while they acknowledge that the Court has heard many preemption cases in the past, they argue that many of those suits can be seen as involving federal rights (and the others, they suggest, were mistaken to assume that there was a cause of action).

The Medicaid providers respond by championing the constitutional cause-of-action cases.  The Supremacy Clause, they argue, should be enforceable just like any other constitutional provision.  Doing so does not circumvent the Court’s statutory cause-of-action jurisprudence because the Supremacy Clause suit involves a much narrower set of remedies than a statutory or Section 1983 suit would.  They also append to their brief a list of fifty-seven Supreme Court preemption cases that they claim would have been impossible to bring under the Idaho officials’ argument.

The United States has filed an amicus brief taking a middle position.  It grants the Medicaid providers’ assumption that preemption causes of action are generally available, but argues that this case is an exception (with no cause of action) because of the specific structure and history of the statute.  Scholars, states, and other amici have introduced other potential complications as well.  Perhaps, as it did in Douglas, the Court will find a way to avoid the big question yet again.  Or perhaps not this time.


Recommended Citation: William Baude, Argument preview: A second attempt at defining preemption actions, SCOTUSblog (Jan. 19, 2015, 6:32 PM),