Amicus Curiae Brief — Eunice Medina, Director, South Carolina Department of Health and Human Services, Petitioner v. Planned Parenthood South Atlantic, et al.

No. 23-1275

In the

Supreme Court of the United States

EUNICE MEDINA, INTERIM DIRECTOR,

SOUTH CAROLINA DEPARTMENT OF

HEALTH AND HUMAN SERVICES,

Petitioner,

v.

PLANNED PARENTHOOD SOUTH ATLANTIC, et al.,

Respondents.

On Writ of Certiorari to the

United States Court of A ppeals for the Fourth Circuit

BRIEF OF AMICUS CURIAE

SOUTHEASTERN LEGAL FOUNDATION

IN SUPPORT OF PETITIONER

February 10, 2025

Braden H. Boucek

Counsel of Record

Benjamin I. B. Isgur

Southeastern Legal Foundation

560 West Crossville Road, Suite 104

Roswell, GA 30075

(770) 977-2131

bboucek@southeasternlegal.org

bisgur@southeasternlegal.org

Counsel for Amicus Curiae

120251

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . ii

INTEREST OF AMICUS CURIAE . . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . 1

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

I. The Court Should Revisit Its Spending Clause

Jurisprudence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

II. The Medicaid Act Does Not Create a Right Even

Under Existing Jurisprudence. . . . . . . . . . . . . . . . . 10

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

ii

TABLE OF CITED AUTHORITIES

Page

CASES

Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy,

548 U.S. 291 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Armstrong v. Exceptional Child Ctr., Inc.,

575 U.S. 320 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

District of Columbia v. Heller,

554 U.S. 570 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Dobbs v. Jackson Women’s Health Org.,

597 U.S. 215 (2022) . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 4

Gonzaga Univ. v. Doe,

536 U.S. 273 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Health & Hospital Corporation of Marion

County v. Talevski,

599 U.S. 166 (2023) . . . . . . . . . . . . . . . . . . . . . 5-7, 10-11

Kennedy v. Bremerton Sch. Dist.,

597 U.S. 507 (2022) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Kentucky v. Yellen,

67 F.4th 325 (6th Cir. 2023) . . . . . . . . . . . . . . . . . . 11-12

Kisor v. Wilkie,

139 S. Ct. 2400 (2019) . . . . . . . . . . . . . . . . . . . . . . . . . . 1

iii

Cited Authorities

Page

Loper Bright Enters. v. Raimondo,

603 U.S. 369 (2024) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

N.Y. State Rifle & Piston Ass’n v. Bruen,

597 U.S. 1 (2022) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Nat’l Ass’n of Mfrs. v. Dep’t of Def.,

138 S. Ct. 617 (2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Nat’l Fed. of Indep. Bus. v. Sebelius,

567 U.S. 519 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . 11-13

Pennhurst State Sch. & Hosp. v. Halderman,

451 U.S. 1 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Planned Parenthood S. Atl. v. Baker,

941 F.3d 687 (4th Cir. 2019) . . . . . . . . . . . . . . . . . . . . 13

Texas v. Yellen,

105 F.4th 755 (5th Cir. 2024) . . . . . . . . . . . . . . . . . . . 12

Town of Greece v. Galloway,

572 U.S. 565 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

United States v. Butler,

297 U.S. 1 (1936) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Util. Air Regulatory Grp. v. EPA,

573 U.S. 302 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

iv

Cited Authorities

Page

West Virginia v. U.S. Dept. of the Treasury,

59 F.4th 1124 (11th Cir. 2023) . . . . . . . . . . . . . . . . 11-12

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. II . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

U.S. Const. Art. I, § 8, cl. 1 . . . . . . . . . . . . . . . . . . . . 3, 7-8

STATUTES

42 U.S.C. § 1396a(a)(23) . . . . . . . . . . . . . . . . . . . . . . . . . . 11

42 U.S.C. § 1396a(p)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

42 U.S.C. § 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 10-12

3 Debates on the Constitution 207

(J. Elliot ed. 1876) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8-9

OTHER AUTHORITIES

Affordable Care Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Antonin Scalia, Originalism: The Lesser Evil,

57 U. Cin. L. Rev. 849 (1989) . . . . . . . . . . . . . . . . . . 4-5

David E. Engdahl, The Contract Thesis of the Federal

Spending Power, 52 S.D. L. Rev. 496 (2007) . . . . . . . 6

v

Cited Authorities

Page

E d w i n M e e s e I I I , Pe r s p e c t i v e o n t h e

Au t h o r i t a tiv e n e ss of Su p r e m e Co u r t

Decision: the Law of the Constitution,

61 Tul. L. Rev. 979 (1987) . . . . . . . . . . . . . . . . . . . . . . . 4

General Welfare Clause . . . . . . . . . . . . . . . . . . . 2-5, 7-8, 10

Jeffrey T. Renz, What Spending Clause? –

(O r t h e P r e s i d e n t ’s Pa r a m o u r): A n

Examination of the Views of Hamilton,

Madison, and Story on Article I, Section 8,

Clause 1 of the United States Constitution,

33 John Marshall L. Rev. 81 (1999) . . . . . . . . . . . . . 6-7

Living Constitutionalism, Black’s Law Dictionary

(Westlaw 12th ed. 2024) . . . . . . . . . . . . . . . . . . . . . . . . 5

Lawrence Solum, The Fixation Thesis: The

Role of Historical Fact in Original Meaning,

91 Notre Dame L. Rev. 1 (2015) . . . . . . . . . . . . . . . . . 4

Medicaid Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-3, 10-13

Noah Webst er, A n Examination Into the

Leading Principles of the Federal Constitution,

in Pamphlets on the Constitution of the

United States (P. Ford ed. 1888) . . . . . . . . . . . . . . . . . 8

vi

Cited Authorities

Page

Philip Hamburger, Purchasing Submission (2021) . . . . 6

Randy Barnett, An Originalism for Nonoriginalists,

45 Loy. U. L. Rev. 611 (1999) . . . . . . . . . . . . . . . . . . . . 5

Randy E. Barnett & Law rence B. Solum,

Or iginalism Af ter Dobbs, Br uen, an d

K e n n e d y : T h e R o l e o f Hi s t o r y a n d

Tradition, 118 Nw. U. L. Rev. 433 (2023) . . . . . . . . . 5

Robert Natelson, The General Welfare Clause and

the Public Trust: An Essay in Original

Understanding, 52 Kan. L. Rev. 1 (2003) . . . . . . . 6-8

Rule 37 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Spending Clause . . . . . . . . . . . . . . . . . . . . . . . . . . 2-3, 6, 10

The Federalist No. 41 (C. Rossiter ed. 1961) . . . . . . . . 8-9

1

INTEREST OF AMICUS CURIAE1

Southeastern Legal Foundation, founded in 1976,

is a national, nonprofit legal organization dedicated to

defending liberty and Rebuilding the American Republic.

For nearly 50 years, SLF has advocated, both in and

out of the courtroom, to protect individual rights and

the framework set forth to protect those rights in the

Constitution. This aspect of its advocacy is reflected

in the regular representation of those challenging

government overreach and other actions in violation of the

constitutional framework. See, e.g., Util. Air Regulatory

Grp. v. EPA, 573 U.S. 302 (2014); Nat’l Ass’n of Mfrs. v.

Dep’t of Def., 138 S. Ct. 617 (2018). SLF also regularly

files amicus curiae briefs with this Court about issues of

agency overreach and deference. See, e.g., Kisor v. Wilkie,

139 S. Ct. 2400 (2019); Loper Bright Enters. v. Raimondo,

603 U.S. 369 (2024).

SUMMARY OF ARGUMENT

States possess the inherent sovereign authority to

decide with whom they will contract. When Congress

passed the Medicaid Act, it neither said nor suggested

that federal courts, not the State itself, would decide which

entities were qualified to provide healthcare in that State.

Despite that, the Court of Appeals for the Fourth Circuit

appointed itself arbiter of healthcare qualifications and

forced South Carolina’s hand by requiring it to subsidize

Planned Parenthood with taxpayer money.

1. Rule 37 statement: No party’s counsel authored any of

this brief; Amicus alone funded its preparation and submission.

See Sup. Ct. R. 37.6.

2

Congress did not grant the courts that role. Indeed,

Congress labored to preserve each state’s sovereign

discretion. The Medicaid Act does not confer an individual

right enforceable in federal court—nor could it do so

consistent with our Constitution. The Fourth Circuit’s

opinion strays so far from the constitutional order

because of a faulty foundation. This case should prompt

an originalist examination of the underlying constitutional

principles at issue and the Court should return its

jurisprudence to solid ground once and for all.

Although this case is postured as a Spending Clause

case, the Court should begin with an examination of

the General Welfare Clause. The former only exists

because of a twisted reading of the latter. The Court’s

jurisprudence will not align with the text, history, and

tradition of the Constitution until the Court re-examines

the General Welfare Clause itself. Tweaking Spending

Clause jurisprudence year after year merely repaints

a constitutional façade that is built upon a rotting

foundation. Current precedent is badly out of step with

the original public meaning of the clause, as well as its

history and tradition, and even its plain text. For too long,

this misreading of the General Welfare Clause has created

spending powers divorced from Congress’s enumerated

legislative powers. That invention is as atextual as it is

ahistorical. Because an accurate reading of the General

Welfare Clause would resolve this case, the Court should

carefully re-examine its existing jurisprudence. Existing

precedent in this area is “egregiously wrong,” and “on a

collision course with the Constitution from the day it was

decided . . . .” Cf. Dobbs v. Jackson Women’s Health Org.,

597 U.S. 215, 268 (2022). The sooner it is corrected, the

better.

3

In the alternative, the Medicaid Act is too ambiguous

to have created an individual right enforceable under

§ 1983. A long tradition of cases has clarified that

enactments pursuant to the spending power, like the

Medicaid Act, must provide clear and unambiguous notice

to the recipient state of its obligations. That is not so here

for two reasons. First, the effect of the Fourth Circuit’s

reading of the Act is to transform Medicaid from a staterun system to one where the State can no longer exclude

participants without federal court say-so. And second,

even if the Act does provide clear notice that it is creating

an enforceable right, the contours and effect of that right

are anything but clear. The recipient state must actually

know what it is agreeing to. That could not occur here.

In either case, this Court should reverse the decision

of the Fourth Circuit.

ARGUMENT

I.

The Court Should Revisit Its Spending Clause

Jurisprudence.

This Court’s jurisprudence has for centuries misread

the General Welfare Clause to create a spending power.

That misreading has been dubbed the Spending Clause.

No such clause exists: “The Congress shall have Power

To lay and collect Taxes, Duties, Imposts and Excises,

to pay the Debts and provide for the common Defence

and general Welfare of the United States; but all Duties,

Imposts and Excises shall be uniform throughout the

United States[.]” U.S. Const. Art. 1, § 8, cl. 1. The text

itself is clear that the second portion of the clause is a

limitation on Congress’s power to tax—not a separate

4

power to spend. This Court’s jurisprudence has strayed

far afield from the original meaning.

The Court, in recent years, has faithfully worked

to correct its jurisprudence to reflect the Constitution’s

original public meaning by analyzing its text and history.

See, e.g., N.Y. State Rifle & Piston Ass’n v. Bruen, 597 U.S.

1, 22, 24 (2022) (interpreting Second Amendment based

on “constitutional text and history”); Dobbs, 597 U.S. at

240; Town of Greece v. Galloway, 572 U.S. 565, 578–79

(2014); District of Columbia v. Heller, 554 U.S. 570, 595

(2008) (“There seems to us no doubt, on the basis of both

text and history, that the Second Amendment conferred

an individual right to keep and bear arms.”). This work

has employed “[a]n analysis focused on original meaning

and history” as the “rule,” not the “exception,” to better

enforce constitutional provisions as understood by those

who enacted them. Kennedy v. Bremerton Sch. Dist., 597

U.S. 507, 536 (2022). This case presents an opportunity

to continue that work and restore the original meaning

of the General Welfare Clause.

Originalism posits that the meaning of terms is fixed

at the time of ratification. Lawrence Solum, The Fixation

Thesis: The Role of Historical Fact in Original Meaning,

91 Notre Dame L. Rev. 1, 1–2 (2015). It ensures respect

for “the consent of the governed with which the actions

of the governors must be squared.” Edwin Meese III,

Perspective on the Authoritativeness of Supreme Court

Decision: the Law of the Constitution, 61 Tul. L. Rev. 979,

986 (1987). It excludes the notion that meaning changes

over time because a democratic society “does not, by

and large, need constitutional guarantees to ensure that

its laws will reflect ‘current values.’” Antonin Scalia,

5

Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849, 862

(1989). Originalism, therefore, “follows inexorably” from

our commitment to a written constitution. Randy Barnett,

An Originalism for Nonoriginalists, 45 Loy. U. L. Rev.

611, 636 (1999).

This contrasts with living constitutionalism, or “the

doctrine that the Constitution should be interpreted

and applied in accordance with changing circumstances

and, in particular, with changes in social values.” Living

Constitutionalism, Black’s Law Dictionary (Westlaw

12th ed. 2024). Living constitutionalism “allow[s] judges

to adopt novel constitutional constructions in response to

changing values and circumstance.” Randy E. Barnett &

Lawrence B. Solum, Originalism After Dobbs, Bruen,

and Kennedy: The Role of History and Tradition, 118 Nw.

U. L. Rev. 433, 451 (2023). Originalists maintain that living

constitutionalists (1) subvert the rule of law by permitting

judges to make constitutional rulings based on their

subjective beliefs instead of the fixed meaning of the text;

(2) undermine the separation of powers by empowering

judges to make and apply constitutional law instead of

effecting the meaning of the constitutional text and

preexisting legal rules; and (3) undermine popular

sovereignty by elevating the authority of judges over the

people’s will as expressed through enacting supermajorities

or constitutional conventions. Id. at 479–80.

This Court was presented with an opportunity to

revisit its General Welfare Clause jurisprudence with

an originalist eye in Health & Hospital Corporation of

Marion County v. Talevski. See 599 U.S. 166, 177–80

(2023). The majority explained then that “something

more than ambiguous historical evidence is required

6

before we will flatly overrule a number of major decisions

of this Court.” Id. at 179 (quotation marks omitted). Yet

a thorough review of the evidence shows anything but

ambiguity because both the text and historical record

support only one conclusion: there is no Spending Clause,

and Congress’s power to spend is a component of the

necessary and proper exercise of its enumerated powers.

The evidence unambiguously shows that the Constitution

limits Congress’s authority to spend to its enumerated

powers. Congress does not possess an indiscriminate

power to spend in the name of “general Welfare,”

disconnected from its enumerated powers.

Justice Thomas highlighted that evidence in his

Talevski dissent. Id. at 206 (Thomas, J., dissenting). And

although he was alone in his dissent, his views on the

topic find many allies in the scholarship. See, e.g., Philip

Hamburger, Purchasing Submission 76 (2021); Jeffrey

T. Renz, What Spending Clause? – (Or the President’s

Paramour): An Examination of the Views of Hamilton,

Madison, and Story on Article I, Section 8, Clause 1

of the United States Constitution, 33 John Marshall L.

Rev. 81 (1999); David E. Engdahl, The Contract Thesis of

the Federal Spending Power, 52 S.D. L. Rev. 496 (2007);

Robert Natelson, The General Welfare Clause and the

Public Trust: An Essay in Original Understanding,

52 Kan. L. Rev. 1, 23–29 (2003). There is a remarkable

consensus that the clause limits the taxing power rather

than creates an independent power to spend. That

consensus comes from not only the text itself, but also

the historical record.

One compelling anecdote is that of Gouverneur

Morris’s attempt to shift the meaning of the clause as part

7

of the Constitutional Convention’s Committee of Style.

Gouverneur Morris was one proponent of giving Congress

a general legislative power. He was not alone. In fact,

proposals to include a general legislative power failed no

less than five separate times during the Convention. See

Renz, 33 John Marshall L. Rev. at 104–05 (recounting five

rejected attempts “to insert a grant of general legislative

power into the Constitution”).

After these many failed (and well-documented)

attempts to introduce a general legislative spending power

openly, Gouverneur Morris attempted to sneak the power

into the Constitution. Id. at 105. He replaced the comma

after “Excises” with a semicolon, altering the meaning of

the clause to create two separate powers rather than one

limited and conjoined power. See Talevski, 599 U.S. at 208

n.23 (Thomas, J., dissenting) (recounting this anecdote).

Replacing the comma with a semicolon created a new

clause with a standalone power to spend: the power “to

pay the Debts and provide for the common Defence and

general Welfare of the United States.” See U.S. Const.

Art. 1, § 8, cl. 1. “The Convention, however, recognized

the alteration and restored the comma, ‘corroborat[ing]

the conclusion that the General Welfare Clause was not

an independent power.’” Talevski, 599 U.S. at 208 n.23

(Thomas, J., dissenting) (quoting Natelson, 52 Kan. L.

Rev. at 28).

And the evidence from the Convention does not stand

alone. Accounts of the time provide further corroboration.

As Federalist advocates went out to defend the General

Welfare Clause to the public, “their basic message

was that the language in question was not a grant at

all—rather it was a restriction on federal authority.”

8

Natelson, 52 Kan. L. Rev. at 39; see also, e.g., 3 Debates

on the Constitution 207 (J. Elliot ed. 1876) (E. Randolph,

Virginia Convention) (“The plain and obvious meaning of

this is, that no more duties, taxes, imposts, and excises,

shall be laid, than are sufficient to pay the debts, and

provide for the common defence and general welfare, of

the United States . . . .”); Noah Webster, An Examination

Into the Leading Principles of the Federal Constitution,

in Pamphlets on the Constitution of the United States 50

(P. Ford ed. 1888).

What this demonstrates is that the General Welfare

Clause is not an independent source of federal power, but

a limitation on the taxing power. Although Congress can

tax, it can only do so for the three listed purposes—debts,

defense, and general welfare. That does not mean that

Congress is empowered to spend on anything it deems

in the “general Welfare.” Rather, it limits Congress’s

use of the taxing power to pay for only those uses of its

enumerated powers that serve “the common Defence and

general Welfare . . . .” U.S. Const. Art. 1, § 8, cl. 1.

Few said it with more vigor than did Madison in

Federalist 41:

Some, who have not denied the necessity of the

power of taxation, have grounded a very fierce

attack against the Constitution, on the language

in which it is defined. It has been urged and

echoed, that the power “to lay and collect

taxes, duties, imposts, and excises, to pay the

debts, and provide for the common defense and

general welfare of the United States,” amounts

to an unlimited commission to exercise every

9

power which may be alleged to be necessary

for the common defense or general welfare. No

stronger proof could be given of the distress

under which these writers labor for objections,

than their stooping to such a misconstruction.

The Federalist No. 41, at 262 (C. Rossiter ed. 1961). Or,

as Governor Randolph put it, “[y]ou must violate every

rule of construction and common sense, if you sever it

from the power of raising money, and annex it to anything

else, in order to make it that formidable power which it

is represented to be.” 3 Debates on the Constitution 600.

The original public meaning of the clause is in little doubt.

That fact alone provides good reason to revise this Court’s

jurisprudence to accord with the Constitution.

Yet another reason exists in how the Court moved

to the understanding common today. The change was

hastily penned with cursory reasoning. After laying out

the question, the Court explained that,

We shall not review the writings of public men

and commentators or discuss the legislative

practice. Study of all these leads us to conclude

that the reading advocated by Mr. Justice Story

is the correct one. While, therefore, the power

to tax is not unlimited, its confines are set in the

clause which confers it, and not in those of § 8

which bestow and define the legislative powers

of the Congress. It results that the power of

Congress to authorize expenditure of public

moneys for public purposes is not limited by

the direct grants of legislative power found in

the Constitution.

10

United States v. Butler, 297 U.S. 1, 65–66 (1936); see also

Talevski, 599 U.S. at 211–19 (Thomas, J., dissenting)

(providing the historical evolution of the meaning of the

General Welfare Clause and discussing the transition

from Jefferson and Hamilton’s initial agreement that the

clause provided no “independent font of legislative power”

to the pre-Butler view that it permitted spending but no

regulation).

Butler’s reasoning is sharply out of alignment with

the Court’s jurisprudential focus on the text, history,

and tradition of the Constitution. The Court should take

this opportunity to align its precedent on the General

Welfare Clause, and thus the ill-conceived doctrine of the

“Spending Clause,” with the text, history, and original

public meaning of the Constitution.

II. The Medicaid Act Does Not Create a Right Even

Under Existing Jurisprudence.

Revising this Court’s jurisprudence would resolve

the present controversy, and the Court should take the

opportunity not to go further down the wrong path.

However, even under existing precedent, the Medicaid

Act is too ambiguous to have created a private right of

action under § 1983.

The Medicaid Act is spending power legislation.

Armstrong v. Exceptional Child Ctr., Inc., 575 U.S.

320, 323 (2015). “The legitimacy of Congress’ power to

legislate under the spending power . . . rests on whether

the State voluntarily and knowingly accepts the terms

of the ‘contract.’” Pennhurst State Sch. & Hosp. v.

Halderman, 451 U.S. 1, 17 (1981). Drawing on bedrock

11

contract principles, this Court held that the State must

have clear notice of the condition. Arlington Cent. Sch.

Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 296 (2006).

Spending enactments fail to provide clear notice when

(1) the terms are altered from the original enactment

or (2) as several circuit courts of appeals have held, the

terms are unclear such that the State would not know its

obligations. See Nat’l Fed. of Indep. Bus. v. Sebelius, 567

U.S. 519, 583 (2012) (NFIB); Kentucky v. Yellen, 67 F.4th

325, 346 (6th Cir. 2023); West Virginia v. U.S. Dept. of

the Treasury, 59 F.4th 1124, 1144–46 (11th Cir. 2023). In

short, “unless Congress speaks with a clear voice, and

manifests an unambiguous intent to confer individual

rights, federal funding provisions provide no basis for

private enforcement by § 1983.” Gonzaga Univ. v. Doe, 536

U.S. 273, 280 (2002) (internal quotation marks omitted).

This Court explained in Talevski that this is a firm test.

599 U.S. at 175. The Medicaid Act fails to provide clear

notice of Congress’s unambiguous intent to confer an

individual right enforceable under § 1983 via the Act’s anyqualified-provider provision. See 42 U.S.C. § 1396a(a)(23).

NFIB illustrates well the first way a statute can lack

clear notice. 567 U.S. at 583. The Court squarely rejected

the idea that the federal power to compel states using the

spending power was unlimited. Id. It was critical of the

Affordable Care Act’s (ACA’s) expansion of the Medicaid

Act because it was “a shift in kind, not merely degree.”

Id. The ACA “transformed” Medicaid from a program to

help “the needy: the disabled, the blind, the elderly, and

needy families with dependent children . . . into a program

to meet the health care needs of the entire nonelderly

population . . . .” Id. The Medicaid Act’s lone clause that

12

reserved Congress’s right to “alter” or “amend” the Act

did not provide notice of this complete transformation. Id.

at 584. The upshot is simple: states must be aware at the

outset what obligations they are accepting.

Recent cases at the circuit level under the American

Rescue Plan Act (ARPA) illustrate the second point: the

State must be able to read the terms and actually know its

obligations. See Kentucky, 67 F.4th at 346; West Virginia,

59 F.4th at 1144–46. ARPA gave $200 billion to states

with a significant string attached—the “offset provision.”

Kentucky, 67 F.4th at 328. That provision prohibited

states that received ARPA funds from using them to

“directly or indirectly offset a reduction in the[ir] net tax

revenue . . . resulting from” tax cuts. Id. The Sixth Circuit

held that the condition itself was clear at the outset, but

the obligations it imposed were not. Id. at 346–48. The

question was not whether the State knew there was a

condition; it was whether the condition was stated in clear

enough language for the State to know what it had really

signed up for. Id. at 346. In other words, the problem was

that “what this language actually obliges the States to

do is difficult to say.” Id. at 348. West Virginia tells the

same story and reaches a similar conclusion, as do cases

in other circuits. See, e.g., 59 F.4th at 1144–46; Texas v.

Yellen, 105 F.4th 755 (5th Cir. 2024).

The Medicaid Act’s any-qualified-provider provision

fails to provide either kind of clear notice that it is creating

a right enforceable under § 1983. First, the Medicaid Act

sets up a system where the recipient state decides what

providers are “qualified.” Critically, the Act does not define

“qualified.” It reserves to recipient states the authority to

exclude providers for the same reasons the Secretary of

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Health and Human Services can exclude providers from

Medicare. See 42 U.S.C. § 1396a(p)(1). And this authority

to exclude is in addition to the recipient state’s inherent,

retained authority to decide which entities to contract

with. See id.

The Medicaid Act offered a bargain in which the

recipient state decides what providers it will work

with. Interpreting the bargain as the Fourth Circuit

did and allowing courts, not the States, to decide what

providers are qualified is not a minor shift in terms—it

is a transformation. The Medicaid Act promised a stateoperated system where the recipient states retain their

sovereignty to decide with whom to contract. Interpreting

the any-qualified-provider provision to confer an

individual and enforceable right is directly contrary to

the bargain struck. As in NFIB, the bargain may be

altered, not transformed, and this would effect a radical

transformation.

Second, even if the Act did provide clear notice that

it was creating an individual and enforceable right, the

effect of that right is as clear as mud. The Act itself

provides no definition of “qualified.” The original Fourth

Circuit opinion in this case held that to mean that it “bars

states from excluding providers for reasons unrelated to

professional competency.” Planned Parenthood S. Atl.

v. Baker, 941 F.3d 687, 691 (4th Cir. 2019) (subsequent

procedural history omitted). Yet it is unclear how the

State, when considering the bargain, would have come

to that conclusion independently. States are sovereign

entities with myriad interests to protect. This Court

should not assume that they gave away the right to

decide which medical providers they subsidize through

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the ambiguous language the Fourth Circuit seized upon.

This Court should reverse the decision below.

CONCLUSION

This case presents another opportunity for the Court

to reconsider an important component of its constitutional

jurisprudence. It should do so.

Respectfully submitted,

February 10, 2025

Braden H. Boucek

Counsel of Record

Benjamin I. B. Isgur

Southeastern Legal Foundation

560 West Crossville Road, Suite 104

Roswell, GA 30075

(770) 977-2131

bboucek@southeasternlegal.org

bisgur@southeasternlegal.org

Counsel for Amicus Curiae