Amicus Curiae Brief — Maxwell-Jolly v. Independent Living Center of Southern California, Inc.

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Nos. 09-958, 09-1158, and 10-283

In the Supreme Court of the U ene Court. US.

FILED

States MAY 25 201

TOBY DOUGLAS, Director of the Department alte THE CLERK

Care Services, State Of California,

INDEPENDENT LIVING CENTER OF SOUTHERN

CALIFORNIA, INC., A Nonprofit Corporation, et al.,

TOBY DOUGLAS, Director of the Department of Health

Care Services, State Of California, et al.,

Vv.

CALIFORNIA PHARMACISTS ASSOCIATION, et al.,

TOBY DOUGLAS, Director of the Department of Health

Care Services, State Of California,

SANTA ROSA MEMORIAL HOSPITAL, et al.,

On Writs of Certiorari to the

United States Court of Appeals for the Ninth Circuit

BRIEF OF NATIONAL GOVERNORS ASSOCIATION,

NATIONAL CONFERENCE OF STATE LEGISLATURES,

COUNCIL OF STATE GOVERNMENTS, NATIONAL

ASSOCIATION OF COUNTIES, INTERNATIONAL

C1Ty/COUNTY MANAGEMENT ASSOCIATION, AND

UNITED STATES CONFERENCE OF MAYORS AS AMICI

CURIAE IN SUPPORT OF PETITIONER

Michael W. McConnell!

Counsel of Record

Stephen S. Schwartz

KIRKLAND & ELLIS LLP

655 Fifteenth Street, N.W.

Washington, D.C. 20005

michael.mcconnell@kirkland.com

(202) 879-5000

Counsel for Amici Curiae Libeuy of

May 25, 2011 ssctslendl

WILSON-EPES PRinTING CO., INC. — (202) 789-0096 - WasHinGToN, D.C. 20002

QUESTION PRESENTED

These amici will address only the following

question of law:

Whether the Supremacy Clause supplies a cause

of action to sue in federal court even where the

underlying federal law creates neither a federal right

nor a defense.

Table of Contents

Page

SUEE EE Ei aaicccicnakccniscnnbsnsnccbbiiiecsns iv

INTEREST OF AMICI CURIAE .........................--- 1

INTRODUCTION AND SUMMARY OF

RESET neo BOER rs meet 1 Sow Aes A Be 3

PRE RR See na Seder Mt Pein ee pA 3

L. THE HISTORY OF THE SUPREMACY

CLAUSE SHOWS THAT IT DOES NOT

GRANT RESPONDENTS A CAUSE OF

ACTION WHERE FEDERAL LAW DOES

Pe CE I BI iicitshcincicnacinccnnisiratnttiecsnnsoncnse 3

A. The Supremacy Clause’s Antecedents In

The Colonial Charters Did Not Recognize

Causes Of Action Where English Law Did

Ne Ee IIIS shatitciinisaiticetpsomaantieethinissaaisibinsedacieeie 4

1. The Colonies were required to legislate

consistently with English law. ..................... 5

2. Enforcement of consistency with

English law did not include causes of

action for colonists who did not have

IN ccdainihhibsiiniiisuisbadainbdiukhinenastinninarions 7

B. The Framers Did Not Intend The

Supremacy Clause To Create A Cause Of

Action Where There Is No Federal Right To

RRL ER ana ete nr are EE SRT pene Oh SOO eee 13

1. The records of the Constitutional

Convention do not indicate that a free-

standing cause of action based on the

Supremacy Clause was contemplated

where federal law does not create a

SIE: « sRadlaintbdledd ata cadishatadndssdeldniimabbantioatudbadcses 14

2. Early interpretations do not indicate

that the Supremacy Clause was

regarded as creating a free-standing

cause of action where there is no federal!

AERTS Nees eee eM ROE 19

3. Historical evidence therefore leads to

the inference that the Supremacy

Clause was not intended to create a

free-standing cause of action absent a

LESTER RT IER oe eae maha PE Sepak oa Re 21

Il. THIS COURT HAS NOT

INTERPRETED THE SUPREMACY CLAUSE

AS CREATING A FREE-STANDING CAUSE

OF ACTION ABSENT A FEDERAL RIGHT....... 22

A. Respondents’ Cause Of Action Is

Inconsistent With Existing Methods Of

Vindicating Federal Rights And Defenses. ..... 22

B. Respondents’ Cause Of Action Is

Inconsistent With Existing Federal

EY Se non crn cinccinneseseemctodoniatends 27

OMANI cirisehitoisiecoiciniilinbsinialanicbelnacestosindibaniiatinndia lets 30

TABLE OF AUTHORITIES

Page(s)

Cases

Alexander v. Sandoval,

og EOL _( Earner Donen near 23, 28

Chapman v. Houston Welfare Rights Orz.,

re es Sa a ctcuducecnte scduentausemisdeons 22

Dennis v. Higgins,

i Se a isisdvccicnintdecnccasdsuensanaies 22

Ex parte Tyler,

RM ee ee eee eee 25

Ex parte Young,

Se UE a, He Cis dicccssiciccsadeosccssin: 24, 26

Florida Lime & Avocado Growers, Inc. v. Paul,

ft es fd.) ee 27

Gade v. National Solid Wastes Mgmt. Ass'n,

re I Scistrertcenecdtmeectenncatiinesneccetes 26

Geier v. American Honda Motor Co., Inc.,

Be es ED Cs icc: ccscusmconcomensesesousvncves 23

Golden State Transit Corp. v. City of Los

Angeles,

Se Ss Se aa tccnastactcs bisencancescens a

Gonzaga Univ. v. Doe,

Se i cb a a a ge ll 28

Osborn v. Bank of the United States,

22 U.S. (9 Wheat.) 738 (1824) ..........000...... 24

Ray v. Atlantic Richfield Co.,

fie Be 8) en 26

Scott v. Donald,

a. Be iii beniisiccncecctasassxtacnimiadis 25

Shaw v. Delta Air Lines, Inc.,

ee Se ID so tibtnicctccsvenicvncesosences 23, 24

Stoneridge Inv. Partners, LLC v. Scientific-

Atlanta,

ER RE 27, 28

Verizon Md. Inc. v. Public Serv. Comm'n,

I Eres Ce I ricicicccedatccitedcccescexacsasces 26

Virginia Office for Protection & Advocacy v.

Stewart,

+) Se Fh) ee 24, 25, 26

Williams v. Neely,

I gi elit 25

Williamson v. Mazda Motor of Am., Inc.,

i Be BR Fy | eee 23

Statutes

GR TE SG., B RE oicnsiiniiccccccsccicesscsccccscct 27

Oe Bes Oe UD atitttnttbciccdinibiincesncninsintaans 23, 28, 29

Books

Bilder, Mary Sarah, The Transatlantic

Constitution: Colonial Legal Culture

and the Empire (2004)..............0...002.. passim

Hamburger, Phillip, Law and Judicial Duty

IN sistas delat Dinca ascetic et ail 8,9, 10

Johnson, Samuel, A Dictionary of the English

Language (6th ed. 1785)...........0..000000000... 6, 7

McDonald, Forrest, Novus Ordo Seclorum: The

Intellectual Origins of the Constitution

Pomeroy, John Norton, A Treatise on Equity

Jurisprudence as Administered in the

United States of America (5th ed. 1941) ..25

Russell, Elmer Beecher, The Review of

American Colonial Legislation by the

King in Council (1915) ....2...200.0c000000000000-000-+- 4

Smith, Joseph Henry, Appeals to the Privy

Council from the American Plantations

Story, Joseph, Commentaries on the

Constitution of the United States (1833)20, 21, 22

The Federalist (Clinton Rossiter ed., 1961)... 19, 20

The Records of the Federal Convention of 1787

(Max Farrand ed., rev'd ed. 1966) ..... passim

Vl1l

Thorpe, Francis Newton, The Federal and

State Constitutions Colonial Charters,

and Other Organic Laws of the States,

Territories, and Colonies Now or

Heretofore Forming the United States of

America Compiled and Edited Under

the Act of Congress of June 30, 1906

Gnas taassugeddaceateasnsices caciiece tusks sued 5, 6, 7

Weir, David A., Early New England: A

Covenanted Society (2005)........................... 6

Articles

Harrison, John, Ex Parte Young,

60 Stan. L. Rev. 989 (2008) ....................... 25

Hart, Jr., Henry M., The Relations Between

State and Federal Law, 54 Colum. L.

UN, GIN csccicceenccomcuspeoasccetatsncccccscsace. 26

Schlesinger, Arthur M., Colonial Appeals to

the Privy Council,

28 Poli. Sci. Q. 279 (1913).....000- oe. 10, 11

Other Source

Cong. Globe, 42d Cong., 1st Sess. (1871)............. 29

INTEREST OF AMICI CURIAE'

Amici — the National Governors Association,

the National Conference of State Legislatures, the

Council of State Governments, the National

Association of Counties, the Internattonal

City/County Management Association, and _ the

United States Conference of Mayors — are national

organizations whose members include State, county,

and municipal elected and appointed officials from

across the United States. These organizations

regularly file amicus briefs in cases that, like this

one, concern federalism and raise pre-emption

challenges.

In this case, the Court will decide whether the

Ninth Circuit misconstrued the Supremacy Clause

and expanded the scope of pre-emption under which

private parties without federal rights or defenses

may seek legal and equitable relief to enforce their

own notions of what federal statutes require of

States.

If the Ninth Circuit’s opinion stands, certain

discretionary decisions may be subject to lawsuit or

frozen by injunction by any private party with

standing that believes a State or locality has misread

federal law.

! No counsel for a party authored this brief in whole or in part,

and no counsel or party made a monetary contribution intended

to fund the preparation or submission of this brief. Besides

amict curiae or their counsel, no party has made a monetarv

contribution to this briefs preparation and submission. The

parties have consented to the filing of this brief.

Not only would this impose new costs in dollars

and time, such a free-standing cause of action would

have a chilling effect on new and creative State and

local solutions to dynamic fiscal and _ policy

circumstances. For these reasons, the amici have a

substantial interest in this case and a unique

perspective on its proper resolution.

INTRODUCTION AND

SUMMARY OF ARGUMENT

It is undisputed that Respondents in this case

have no right of action under any federal statute. It

is also undisputed that Respondents are not suject

to any State enforcement action to which federal law

might serve as a defense. The Court of Appeals

nonetheless held that the Supremacy Clause itself

supplies a cause of action, permitting plaintiffs to

bring suit in federal court for pre-emption of State

law in any case where they have standing. We

submit that is in error. Understood in light of its

history and subsequent interpretation, the

Supremacy Clause is a priority rule that makes clear

that, whenever a conflict between State law and

federal law arises in the course of litigation, courts

must give precedence to the federal law. The

Supremacy Clause is not a roving commission to

allow plaintiffs to seek judicial correction of

perceived conflicts between State and federal law,

where they personally have neither a right nor a

defense under federal] law.

ARGUMENT

I. THE HISTORY OF THE SUPREMACY

CLAUSE SHOWS THAT IT DOES NOT

GRANT RESPONDENTS A CAUSE OF

ACTION WHERE FEDERAL LAW DOES

NOT CREATE A RIGHT.

The Supremacy Clause is a solution to the

inherent potential conflict in a two-tiered federal

system in which the several States and the general

government have overlapping authority to legislate

in certain areas. As debates in the Philadelphia

Convention reveal, the Supremacy Clause was

crafted as an alternative to James Madison’s favored

solution of a congressional “negative” on State laws,

and was based on the Americans’ prior experience of

a kind of federalism within the British imperial

system. See Mary Sarah Bilder, The Transatlantic

Constitution: Colonial Legal Culture and the Empire

11 (2004). That system allowed the colonial

legislatures substantial powers of local _ self-

government within boundaries set by British law.

The British imperial system — dubbed by

historians the “transatlantic constitution” —

employed two basic procedural mechanisms for

ensuring that colonial law did not offend British law.

Some, but not all, colonies were required to send

copies of enacted statutes to London for review by

the Lords of the Committee for Trade and

Plantations (commonly called the “Board of Trade”),

which had the power to annul colonial laws deemed

repugnant to British law. Jd. at 54-57. This was the

model for Madison’s “negative.” In addition, parties

in ordinary litigation in colonial courts could appeal

to London — to the Privy Council’s Committee for

Hearing Appeals from the Plantations, which acted

in an essentially judicial capacity in cases of

claimed repugnancy between colonial and British

law. Id. at 73-90, 125-26. This became the model for

the Supremacy Clause.

A. The Supremacy Clause’s Antecedents In

The Colonial Charters Did Not Recognize

Causes Of Action Where English Law Did

Not Create A Right.

The concerns reflected in the Supremacy Clause

were not new at the time of the Constitutional

Convention. Long before the American colonies

declared their independence, the question of how to

ensure consistency between a supreme central

authority and peripheral legislatures was a concern

of British imperial administrators. Their answgrs to

that question are reflected in the colonial charters

granted in the seventeenth and early eighteenth

centuries.

1. The Colonies were required to

legislate consistently with English

law.

The transatlantic constitution permitted

substantial local self-government, thus

contemplating a certain amount of divergence from

British legal norms. At the same time, however,

colonial charters required adherence to fundamental!

British law and forbade the enactment and

enforcement of laws “repugnant” to British law. The

Second Charter of Virginia, for example, adopted in

1609, granted the colonia] Council “full and absolute

Power and Authority to ... govern . . . according to

such Orders, Ordinances, Constitutions, Directions,

and Instructions, as by our said Council as aforesaid,

shall be established[.]” See Francis Newton Thorpe,

The Federal and State Constitutions Colonial

Charters, and Other Organic Laws of the States,

Territories, and Colonies Now or Heretofore Forming

the United States of America Compiled and Edited

Under the Act of Congress of June 30, 1906 3801

(1909) (“Federal & State Constitutions”)? That

2 This charter, and the other colonial charters cited herein, is

also available online through the Avalon Project at the Yale law

authority, however, came with a proviso: It would

hold on condition that “the said Statutes, Ordinances

and Proceedings as near as conveniently may be, be

agreeable to the Laws, Statutes, Government, and

Policy of this our Realm of England.” Id. (emphasis

added).?

Later colonial charters added a degree of clarity

to the requirement that colonial law be “agreeable” to

that of England. In most charters, that requirement

evolved into the rule that colonial governments could

not contradict English law. The Third Charter of

Virginia, for example, required that Virginia’s laws

“be not contrary to the Laws and Statutes of this our

Realm of England[.]” Jd. at 3806 (emphasis added).

The 1629 Massachusetts Bay Charter granted power

to legislate so long as the laws “be not contrarie or

repugnant” to English law. See id. at 1853.4 The

1662 Connecticut charter granted authority to enact

legislation “not Contrary to” English law, id. at 533;

likewise the 1732 Georgia Charter required that

colonial laws “be reasonable and not contrary or

repugnant to the laws or statutes” of England, id. at

library. See

http://avalon_law yale.edu/subject_menus/statech.asp.

3 “Agreeable,” as defined by Samuel Johnson, meant “[s]uitable

to; consistent with; conformable to.” I Samuel Johnson, A

Dictionary of the English Language (6th ed. 1785)

(unpaginated) (“Johnson”).

4 An informative discussion of the development of

Massachusetts and other New England colonial charters can be

found in David A. Weir, Early New England: A Covenanted

Society (2005).

770.5 See also, e.g., id. at 3215 (1663 Rhode Island

Charter (“not contrary and repugnant unto, butt, as

neare as may bee, agreeable to the lawes of this our

realme of England, considering the nature and

constitutions of the place and people there”)); id at

2765 (1665 Carolina Charter (“reasonable, and not

repugnant or contrary, but as near as may be,

agreeable to the laws and statutes of this our

kingdom of England”)). These provisos foreshadowed

our modern idea of conflict pre-emption.

In contrast to the later Supremacy Clause, not

all Acts of Parliament were superior to colonial law.

In general, it was thought that the “plantations”

were subject to some or all of the common law that

had been in effect at the time of settlement.

Subsequent Acts of Parliament applied to the

“plantations” only if they were expressly mentioned

or if the colonies voluntarily adopted them. See

Bilder, The Transatlantic Constitution at 37-39.

2. Enforcement of consistency with

English law did not include causes of

action for colonists who did not have

legal rights.

Enforcement of consistency between colonial and

English law was the responsibility of the English

Privy Council. The Privy Council had both

5 Johnson defined “contrary” as “[o]}pposite; contradictory; not

simply different, or not alike, but repugnant, so that one

destroys or obstructs the other,” or as “{ijnconsistent;

disagreeing.” I Johnson. “Repugnant” meant “[clontrary;

opposite; inconsistent.” II Johnson.

administrative and legal means at its disposal for

that task. See Phillip Hamburger, Law and Judicial

Duty 261 (2008) (“The Privy Council served as a

judicial court to hear appeals from colonial courts,

but it also oversaw the Empire[.]}”).

The principal administrative method of

enforcing consistency with English law was direct

review of colonial statutes, followed by approval or

disallowance. Originally applied only to Royal

colonies, by 1700 most colonial charters had adopted

the requirement that the colonial assemblies send

their laws to England for such review. See Bilder,

The Transatlantic Constitution at 54-56. ®

Review of colonial statutes from 1696 through

Independence was conducted by the Lords of Trade

and Plantations, usually called the Board of Trade,

which advised the Privy Council on statutes sent for

review. Elmer Beecher Russell, The Review of

American Colonial Legislation by the King in Council

44 (1915). The Board of Trade would sometimes

focus on colonial statutes brought to its attention by

petitions from parties who claimed to be injured by

them, id. at 50, and it gradually adopted quasi-

judicial procedures for its hearings, td. at 51-52. But

the Board of Trade was not a court; its proceedings

were not strictly judicial in nature; and its

6 Rhode Island lacked such a provision. The ultimate English

authority over Rhode Island, in fact, was the threat that its

charter would be revoked. To avert that outcome, the colonial

legislature put considerable effort into ensuring that its laws

would be consistent with those in England (and convincing

English authorities of that consistency). Bilder, The

Transatlantic Constitution at 57-69.

proceedings were not triggered by anything like a

legal complaint and cause of action. Rather, the

Board’s authority was essentially political and

administrative. Hamburger, Law and Judicial Duty

at 261 (referring to the disallowment of colonjal

legislation as an “executive” function). Significantly

(and similar to Madison’s later proposal for a

“negative” at the Convention), the Board was

charged not only with the job of determining whether

colonial legislation was consistent with English law,

but whether it was expedient and consistent with the

Empire as a whole. Russell, Review of American

Colonial Legislation at 109. That was necessarily a

matter not just of law, but of policy. See, e.g., id. at

118 (discussing the Board’s role in preventing the

colonies from competing with English industries);

120-21 (Board’s role in regulating colonial paper

currency).

Other charters provided for judicial process to

ensure conformity of colonial to British law. This

took the form of a right for litigants in colonial cases

to appeal adverse court judgments to the Privy

Council, which would protect the rights or defenses

that English law conferred. The 1622 Gorges

Charter, for example, provided that when the Maine

colonial government was in “default” of its obligation

to conform to English law, “it shall be lawful for any

of the aggrieved inhabitants and planters .. . to

appeal” to the Council of New England, based in

Devonshire. Federal & State Constitutions at 1624.

King Charlies II’s 1676 Grant of New England to the

Duke of York was even more explicit. That charter,

just after familiar language requiring that colonial

laws “be not contrary to, but as near as conveniently

may be, agreeable” to English law, added a provision

“saving and reserving to us .. . the receiving,

hearing, and determining of the appeal and appeals

of all or any person or persons of, in or belonging to

the territories or islands aforesaid, in or touching

any judgment or sentence to be there made or given.”

Id. at 2591-92. The 1681 Pennsylvania Charter was

similar: It required that colonial laws “bee consonant

to reason, and bee not repugnant or contrarie, but as

neare as conveniently may bee agreeable to the

Lawes and Statutes, and rights of this Our

Kingdome of England,” and then reserved to the

Crown “the receiving, heareing, and determining of

the appeale and appeales of all or any Person or

Persons, of, in, or belonging to the Territories

aforesaid, or touching any Judgement to bee there

made or given.” Id. at 3038. Some sources indicate

that the right to appeal to the Privy Council was

considered an inherent right of the King’s subjects,

even without express mention in the charter, Arthur

M. Schlesinger, Colonial Appeals to the Privy

Council, 28 Poli. Sci. Q. 279, 288 (1913), but some

colonies contested the right of appeal, contending

that it, along with other elements of royal

prerogative, had been vested in colonial authorities

by the charter. Id. at 293-97; Bilder, The

Transatlantic Constitution at 73-90.

In contrast to direct review of colonial statutes

by the Board of Trade, appeals were conducted by

the Privy Council's Committee for Appeals, which

had a judicial character. Hamburger, Law and

Judicial Duty at 261 (referring to the hearing of

appeals from colonial courts as an exercise of the

Privy Council’s “judicial capacity”); see also Bilder,

The Transatlantic Constitution at 74 (discussing the

formalization of appellate practice in the 1690s). If

the colonial court granted leave, review in the

Committee was by appeal; if not, review was by

petition. Schlesinger, Colonial Appeals to the Privy

Council, 28 Poli. Sci. Q. at 437. Litigation before the

Committee was conducted by members of the bar,

based on the formal record on appeal, subject to

ordinary legal rules, and resulted in a legally binding

judgment of either affirmance or reversal followed by

a remand to the colonial court. See Bilder, The

Transatlantic Constitution at 122-28; Schlesinger,

Colonial Appeals to the Privy Council, 28 Poli. Sci. Q.

at 437-38.

Appeals were not conceived as arising under the

transatlantic constitution’s “repugnancy” principle,

for mere repugnancy of colonial to English law did

not supply the underlying cause of action. Rather,

the appeals arose in ordinary cases, which were

based on ordinary causes of action implicating

personal rights at admiralty, common law, or equity.

“Repugnancy” served instead as an argument on the

merits. See id. at 85-86. In other cases, English law

was a defense to application of “repugnant” colonial

law. See Joseph Henry Smith, Appeals to the Privy

Council from the American Plantations 561 (1950).

For example, historian Arthur Schlesinger Sr.

identified three Privy Council appeals of the greatest

legal significance for the validity cf colonia! statutes:

Winthrop v. Lechmere, Phillips v. Savage, and Clark

v. Tousey. Each implicated the validity of colonial

statutes, and each arose from a dispute between an

heir who stood to gain from the colonial intestacy

statutes and an heir who stood to receive more under

the English common law rule. Schlesinger, Colonial

Appeals to the Privy Council, 28 Poli. Sci. Q. at 440-

45.

In Rhode Island, the first successful private-

party appeal from Rhode Island to the Privy Council

involved a land dispute that ultimately turned on

whether a colonial law constituting the colonial

Assembly as a court of equity was repugnant to

British law, which confined equity to the prerogative

courts of the Crown. Bilder, The Transatlantic

Constitution at 80-82. This resolved an important

and contested question of the respective authority of

colonial and royal courts, id. at 79, but it arose in an

ordinary case about ownership of land.

Another illustrative example from Rhode Island

was the litigation brought by James MacSparran, a

clergyman of the Church of England, to clear title to

lands set aside for support of an “orthodox” minister.

The colonial court concluded that this meant, in

context, the Congregationalist claimant.

MacSparran appealed to the Privy Council on the

ground that only a minister of the Church of England

could be deemed “orthodox” under English law. The

Privy Council’s decision against MacSparran was an

important decision restricting the reach of the

established church in the colonies. Jd. at 159-167.

But despite its broad significance, the cause of action

was MacSparran’s mundane allegation of trespass

against the lessee of a rival claimant. Jd. at 160. In

the absence of an established common law cause of

action, there could have been no case, and there

could have been no appeal. Neither the importance

of the question nor the allegation of “repugnance” in

the abstract would have sufficed.

Some charters, in short, subjected colonial laws

to an English veto. Although colonists could (and

did) petition English authorities for the invalidation

of colonial statutes, such petitions were

fundamentally political and administrative’ in

nature, rather than judicial in the modern sense.

Other charters took a judicial approach, permitting

appeals to English tribunals of colonial judgments

and sentences in the course of ordinary litigation. It

therefore appears that although the colonies were

prohibited to enact legislation conflicting with

English law, that prohibition did not alter the

principle that litigants can go to court for judicial

relief only if they satisfy the ordinary requirements

of a cause of action in law or equity.

B. The Framers Did Not Intend The

Supremacy Clause To Create A Cause Of

Action Where There Is No Federal Right

To Enforce.

The questions of imperial administration that

appeared during the colonial period surfaced once

again in designing a federal union. The Framers, in

their effort to resolve the problems that plagued the

United States under the Articles of Confederation,

had to decide how to ensure that the States would

exercise their sovereignty consistently with the

Union and the federal Constitution. Both forms of

imperial review described above — direct review and

judicial appeal — were urged at the Convention,

with explicit reference to prior British imperial

practice. The Supremacy Clause’s history at the

Convention indicates that it was adopted as the less

intrusive remedy from the point of view of the States.

Early explications of the Supremacy Clause confirm

that view.

1. The records of the Constitutional

Convention do not indicate that a free-

standing cause of action based on the

Supremacy Clause was contemplated

where federal law does not create a

right.

For the first half of the Constitutional

Convention, it was assumed that the supremacy of

federal law would be enforced by Congress on

analogy to the post-enactment review of colonial

statutes by the Board of Trade. The Virginia Plan

vested the National Legislature with power “to

negative all laws passed by the several States,

contravening in the opinion of the National

Legislature the articles of Union.” I The Records of

the Federal Convention of 1787 21 (Max Farrand ed.,

revd ed. 1966) (“Farrand”). Charles Pinckney and

James Madison sought to expand the negative to

allow invalidation of any State law the Congress

“shd. judge to be improper,” thus permitting

Congress to invalidate State laws on the basis of

policy as well as unconstitutionality. Jd. at 164.

Both supporters and opponents of the negative drew

analogies to review of colonial statutes by the Board

of Trade. See id. (C. Pinckney) (‘under the British

Govt. the negative of the Crown had been found

beneficial, and the States are more one nation now,

than the Colonies were then.”); id. at 168 (Madison)

(“This was the practice in Royal Colonies before the

Revolution”); id. at 337 (Lansing) (the proposed

“Negative would be more injurious than that of Great

Britain heretofore was”); II Farrand at 28 (Madison)

(the “utility” of the negative “is sufficiently displayed

in the British System”).

The Framers agreed that the Union would

require some sort of federal check on State

legislation inconsistent with the Constitution. P@he

debate centered on whether that check would be best

exercised on a blanket basis by Congress or by courts

when the issue arose in ordinary litigation. On July

17, 1787, James Madison, the _ congressional!

negatives most important supporter, called the

“power of negativing the improper laws of the States”

the “most mild & certain means of preserving the

harmony of the system,” reminding his listeners of

the “utility” of the device in the prior “British

System.” II Farrand at 28. Other delegates were

skeptical or even hostile to this idea. Luther Martin

called the negative “improper & inadmissible,” on the

ground that State laws should not have to be “sent

up to the Genl. Legislature before they shall be

permitted to operate[.!” II Farrand at 27. Even

nationalist Gouvernour Morris declared that the

negative would “likely be terrible to the States.” I!

Farrand at 27. Future Chief Justice John Rutledge

declared that the presence of the negative “would

damn and ought to damn the Constitution.” II

Farrand at 391. It would bind the States “hand and

foot” and make “mere corporations of them.” Id.

Most significantly, Morris and Roger Sherman

argued that a negative was unnecessary because

courts would not treat a State law as valid if it came

into conflict with the Constitution. Jd. at 27, 28.

Morris explained that any law that “ought to be

negatived” would be “set aside” in court anyway or

else “repealed by a Nation]. law.” Td. at 28.

Sherman added that the argument for the negative

rested on the false premise that State laws

inconsistent with the Constitution would be valid

otherwise. Id. at 28. In light of the familiarity to the

Framers of the practice of appeals under the prior

British transatlantic system, this was not a

surprising reaction. Madison did not disagree, but

worried that State courts could not be relied on to

disregard invalid legislation as his opponents

supposed. TJId. at 27. Notwithstanding Madison’s

concerns, the Convention voted down the negative by

seven States to three. Id. at 28.

It was at that point that the Convention

substituted the language that, with later changes,

eventually became the Supremacy Clause. That

proposal passed unanimously and without recorded

discussion. Jd. at 28-29. Luther Martin, who offered

the successful motion, wrote that he proposed the

Supremacy Clause “in substitution of’ the negative.

III Farrand at 286.7 The unmistakeable inference is

that the Convention resolved the debate over how to

enforce the supremacy of federal law by reliance on

the judicial duty to apply federal law in cases of

7 The July 17 motion borrowed the language of 96 of the New

Jersey Plan. See I Farrand at 245 (“Read. that all Acts of the U.

States in Congs. made by virtue & in pursuance of the powers

hereby & by the articles of confederation vested in them .. .

shall be the supreme law of the respective states so far forth as

those Acts .. . shall relate to the said States or their Citizens,

and that the Judiciary of the several States shall be bound

thereby in their decisions, any thing in the respective laws of

the Individual States to the contrary nonwithstanding[.}”).

After subsequent changes, described below, Martin declared the

final version “worse than useless.” III Farrand at 287.

conflict rather than by post-enactment inspection

and political review.

It is important to note that the Convention did

not invest courts with a special power to enforce

federal supremacy, but evidently contemplated t#at

conflicts would arise, as they had under the prior

British system, in the ordinary course of litigation.

The courts’ power was not conceived as_ the

enforcement of federal mandates (although some

federal statutes surely could be coercively enforced),

but simply the decision as to which laws, State or

federal, would prevail, and which would be void.

In its original form, as adopted on July 17, the

Supremacy Clause relied on “the Judiciaries of the

several States” to enforce the supremacy of federal

law, presumably with appeal to the Supreme Court.

Il Farrand at 29. At this point, there had been no

provision for creation of the lower federal courts.

The July 17 version thus closely resembled the prior

system of Privy Council appeals, with State courts

playing the role of colonial courts, and the United

States Supreme Court playing the role of the Privy

Council.

The Clause underwent significant substantive

revision, first by the Committee on Detail and later

by the Committee on Style. According to Edmund

Randolph’s notes from meetings of the Committee on

Detail, the Committee considered a version of the

Clause stating that “All laws of a particular state,

repugnant hereto, shall be void.” I] Farrand at 144.

The draft further provided that the “decision

thereon” would be “vested in the supreme judiciary.”

Id. The language of “repugnancy” harkened back to

prerevolutionary colonial charters, and the term

“void” indicated the essentially negative nature of

contemplated relief. The Committee, however,

rejected this draft in favor of language similar to the

July 17 version, but vesting decisions in “the judges

in the several states,” rather than “the Judiciaries of

the several States,” a change that entailed

enforcement of the supremacy of federal law by

inferior federal courts as well as by State courts. Id.

at 183.8 This presumably mitigated Madison’s

concern about reliance on State courts. A change on

the floor on August 23, 1787 expanded the scope of

federal supremacy beyond “Acts of the Legislature of

the United States” to include all federal law,

including the Constitution itself. Jd. at 381-82.

Lastly, the Committee on Style broadened its

language to include future treaties and completed it

with the “supreme law of the land” language we are

familiar with today. Jd. at 603.

In the final days of the Convention, Charles

Pinckney sought to revive the congressional

negative, this time with the proviso that it could be

exercised only by a two-thirds vote of both houses of

Congress. Id. at 390. Some delegates supported it.

James Wilson, for example, thought that “[t}he

firmness of Judges is not, of itself, sufficient” to

ensure federal supremacy. /d. at 391. Sherman and

Hugh Williamson, though, “thought it unnecessary”

in light of federal legal supremacy. /d. at 390-91.

8 By changing the language from “Judiciaries” to “judges,” the

Committee on Detail also made clear that judges, not juries,

would decide questions of pre-emption and constitutionality.

See Forrest McDonald, Novus Ordo Seclorum: The Intellectual

Origins of the Constitution 255 (1985).

After a short debate, this version of the negative

failed as well. Jd. at 391.

Wilson’s indirect reference to the Supremacy

Clause virtually sums up the Convention's debate.

That courts would have a duty to “set aside” St&te

laws inconsistent with the Constitution does not

appear to have been in doubt. As shown by these

debates, the Convention rejected the negative at

least in part on the belief that courts would have a

duty to accomplish the same end, in a less intrusive

manner.

2. Early interpretations do not indicate

that the Supremacy Clause was

regarded as creating a free-standing

cause of action where there is no

federal right to be enforced.

Two essays of The Federalist, numbers 33

(Alexander Hamilton) and 44 (James Madison),

analyze of the meaning of the Supremacy Clause.

The Federalist (Clinton Rossiter ed., 1961). Neither

Hamilton nor Madison specifically addressed any

charge that the Supremacy Clause by itself could be

used as a basis to hale States into court on an

abstract pre-emption theory where there is no

federal right to be enforced — though that argument

surely would have been made by Anti-federalists if

they had considered it possible. Instead, wrote

Hamilton: “If a number of political societies enter

into a larger political society, the laws which the

latter may enact, pursuant to the powers intrusted to

it by its constitution, must necessarily be supreme

over those societies and the individuals of whom they

are composed.” Jd. No. 33, at 204. Otherwise, the

larger political association would “be a mere treaty

... and not a government, which is only another

word for political power and supremacy.” Id.

(emphasis omitted). For that reason, the Supremacy

Clause “only declares a _ truth which flows

immediately and necessarily from the institution of a

federal government.” Id. at 205 (emphasis added).

Madison took a similar view. Because many of

the existing State constitutions reserved to

themselves the powers not granted to the United

States under the Articles of Confederation (or,

indeed, “d[id] not even expressly and fully recognize

the existing powers of the Confederacy”), it was

necessary to vest supreme authority in Congress. Id.

No. 44, at 286-87. If the Constitution had

(hypothetically) contained a savings clause instead,

Madison observed, “the new Congress would have

been reduced to the same impotent condition with

their predecessors,” id. at 286, and federal laws

might even have had different application in

different States, id. at 287.

Joseph Story, writing decades later, reached

much the same conclusion. Seconding Hamilton,

Story wrote that the Supremacy Clause “only

declares a truth, which flows immediately, and

necessarily from the institution of a national

government.” III Joseph Story, Commentaries on the

Constitution of the United States § 1831, p. 694

(1833) (“Story”). “The propriety” of the Clause

“would seem to result from the very nature of the

constitution.” Jd. at 693. Its principle therefore

would have been “necessarily implied” if it had not

been in the text, id., but it was “introduced from

abundant caution, to make its obligation more

strongly felt by the state judges.” Jd. at § 1833, p.

697.

In explaining “Rules of Interpretation” of the

Constitution, Story wrote: “Whenever the question

arises, as to whom obedience is due,” i.e., to a State

or to the federal government, “it is to be judicially

settled” by the Supremacy Clause, “and being

settled, it regulates, at once, the rights and duties of

all the citizens.” I Story at § 414, p. 397. Thus,

where federal law creates a right or a defense, there

is a right to judicial relief, and the Supremacy

Clause establishes the rule of decision. But the

Supremacy Clause is not a cause of action otherwise.

3. Historical evidence therefore leads to

the inference that the Supremacy

Clause was not intended to create a

free-standing cause of action absent a

federal right.

The historical evidence makes it deeply

improbable that the Supremacy Clause of its own

force was understood to create a federal cause of

action for pre-emption even when no federal rights or

defenses are at issue. Indeed, in light of the role the

Supremacy Clause served at the Convention — a

consensus measure when the Framers decided

against comprehensive federal review of State

legislation — interpreting the Clause as creating a

cause of action of that sort would be quite a stretch.

The Clause, after all, contemplated the resolution of

State-federal legal conflicts during ordinary

litigation as a substitute for a highly intrusive

review of State legislation. To treat it as authorizing

private lawsuits in all cases of arguable federal pre-

emption would replicate much of the intrusion the

opponents of the negative found troubling, and that

the Supremacy Clause was intended to avoid.

Il. THIS COURT HAS NOT INTERPRETED

THE SUPREMACY CLAUSE AS CREATING

A FREE-STANDING CAUSE OF ACTION

ABSENT A FEDERAL RIGHT.

The Supreme Court’s past pronouncements on

the Supremacy Clause are consistent with this

historical understanding. Briefly, they establish that

the Supremacy Clause provides a rule for resolution

of conflicts between State and federal law when they

arise in the course of ordinary litigation, but it does

not create the free-standing cause of action

contemplated by Respondents.

A. Respondents’ Cause Of Action Is

Inconsistent With Existing Methods Of

Vindicating Federal Rights And Defenses.

This Court has explained that the Supremacy

Clause “is not a source of any federal rights[.]”

Chapman v. Houston Welfare Rights Org., 441 U.S.

600, 613 (1979) (emphasis added); accord Dennis v.

Higgins, 498 U.S. 439, 450 (1991) (contrasting the

Supremacy Clause with the Commerce Clause).

Rather, the Clause “secure[s]’ federal rights by

according them priority whenever they come in

conflict with state law.” Chapman, 441 U.S. at 613.

The “right,” in other words, must derive either from

some other provision of the Constitution itself or

from federal statute. This echoes Justice Story’s

view that the Supremacy Clause “settle[s]” the

question of federal supremacy “[w]henever [it]

arises.” I Story at § 414, p. 397. The question is how

conflicts between federal rights and State laws,

resolvable through the Supremacy Clause, actually

arise. Caselaw shows that absent a federal right or

defense, the Supremacy Clause of its own force does

not provide a cause of action.

As a general matter, federal rights “come into

conflict with state law” in the context either of State

enforcement of pre-empted law or the enforcement of

federal rights. For example, it is elementary that

when a State applies its law (including tort law) in a

suit against a federally regulated entity, the

defendant is free to raise federal pre-emption as an

affirmative defense. See, e.g., Williamson v. Mazda

Motor of Am., Inc., 131 S. Ct. 1131 (2011) (addressing

alleged pre-emption of State tort law by Federal

Motor Vehicle Safety Standards); Geier v. American

Honda Motor Co., Inc., 529 U.S. 861 (2000) (same).

Likewise, when a federal statute such as 42 U.S.C.

§ 1983 provides a private cause of action for

vindication of federal rights, parties holding those

rights can go to court to seek affirmative relief,

including injunctive or declaratory relief against pre-

empted State law. See, e.g., Golden State Transit

Corp. v. City of Los Angeles, 493 U.S. 103 (1989). It

is undisputed in this case that Respondents have no

federal rights under the statute, so these uses of the

Supremacy Clause do not pertain.

Under carefully defined circumstances, parties

have a right in equity to assert an anticipatory

defense against the enforcement of a pre-empted

State law, and to obtain relief in the form of a writ of

injunction or prohibition. See, e.g., Shaw v. Delta Air

Lines, Inc., 463 U.S. 85, 96 n.14 (1983) (recognizing

federal court jurisdiction over a plaintiffs suit in

equity to enjoin a State regulation that infringes

federal rights); Ex parte Young, 209 U.S. 123, 160-62

(1908). As Justice Kennedy has recently explained,

the “negative injunction” available in such cases is

“nothing more than the pre-emptive assertion in

equity of a defense that would otherwise have been

available in the State’s enforcement proceedings at

law.” Virginia Office for Protection & Advocacy uv.

Stewart, 131 S. Ct. 1632, 1642 (2011) (Kennedy, J.,

concurring). In this case, the plaintiffs have no

“defense” that they could assert in an enforcement

action by the State of California. Consequently,

these cases do not pertain either.

As the Shaw Court explained, the right to invoke

the supremacy of federal law in cases of threatened

enforcement of pre-empted State law is essentially

an application of the equitable principles underlying

Ex parte Young. See Shaw, 463 U.S. at 96 n.14

(citing Ex parte Young, 209 U.S. at 160-62).° Suits of

this type trace their history as far back as Osborn v.

Bank of the United States, 22 U.S. (9 Wheat.) 738

(1824), and are now largely uncontroversial. Like

the uses of the Supremacy Clause described above,

such suits seek to assert federal constitutional or

statutory rights — often, an implied federal right not

to be subject to pre-empted State coercive authority

— that void State enforcement proceedings. See Ex

parte Young, 209 U.S. at 155-56. Thus, although the

8 The question presented in Ex parte Young was not whether

the plaintiff had a cause of action, but whether sovereign

immunity would bar such a suit. The underlying equitable

principles were not contested.

regulated party brings the lawsuit, the Supremacy

Clause is still a shield dependent on a federal right

or defense, not a cause of action for affirmative relief.

Historically, in fact, the type of equitable action

asserted in Shaw could only be used as a shield? and

the Supremacy Clause functioned only as the rule of

decision. The plaintiff in Ex parte Young sought an

anti-suit injunction under federal equity law, which

supplied an equitable cause of action. See generally

John Harrison, Ex Parte Young, 60 Stan. L. Rev. 989

(2008); id. at 1014. In cases like Ex parte Young,

plaintiffs seeking such an injunction had to show (1)

a legal defense (such as pre-emption) to an

impending legal action and (2) an argument that

waiting to assert the defense at law would not be an

adequate remedy. Jd. at 997-999, 1014; Scott v.

Donald, 165 U.S. 107, 114 (1897) (“[T]he circuit

courts of the United States will restrain a state

officer from executing an unconstitutional statute of

the state when to execute it would be to viola

rights and privileges of the complainant that had

been guarantied by the constitution, and would do

irreparable damage and injury to him[.J]”) (quoting

Ex parte Tyler, 149 U.S. 164, 191 (1893)); see also IV

John Norton Pomeroy, A Treatise on Equity

Jurisprudence as Administered in the United States

of America § 1363, p. 981-83 (5th ed. 1941); Williams

v. Neely, 134 F. 1, 4 (1904) (discussing an equity case

brought to pre-emptively assert a contractual

defense). Those two prerequisites have been

satisfied in every case in which this Court has

upheld relief based on federal supremacy, whether

they have been explicitly addressed or not. Virginia

Office for Protection & Advocacy, 131 S. Ct. at 1642

(majority opinion) (plaintiff must have “a federal

right” in order to seek judicial relief under Ex parte

Young). By contrast, Respondents in this case,

lacking a federal right or defense, could not have

made out such as claim.

In addition, under equity, only negative

injunctive relief was permitted. The Ex parte Young

Court emphasized that the rule it announced would

not extend to offensive uses of equitable causes of

action, ike Respondents’ effort to force States to take

affirmative action to conform to federal law in the

absence of a federal right. Ex parte Young, 209 U.S.

at 158; see also Henry M. Hart, Jr., The Relations

Between State and Federal Law, 54 Colum. L. Rev.

489, 516 (1954) (distinguishing between negative

injunctive relief permitted by Ex parte Young and

affirmative relief foreclosed by the Eleventh

Amendment). This Court has recently reiterated

that very point. Virginia Office for Protection &

Advocacy, 131 S. Ct. at 1639 (no right under Ex parte

Young to seek specific performance of State’s

contract).

Shaw and its antecedents, therefore, support use

of the Supremacy Clause by litigants with federal

defenses to prospective State enforcement action, but

not otherwise. The cases erroneously cited by the

Ninth Circuit panel to support its more expansive

reading of the Clause, to create a federal cause of

action without a federal statutory right or defense,

are not to the contrary. Accord Verizon Md. Inc. v.

Public Serv. Comm’n, 535 U.S. 635, 640 (2002)

(enforcement of State administrative ruling), Gade v.

National Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 94

(1992) (enforcement of State licensing laws), Ray v.

Atlantic Richfield Co., 435 U.S. 151, 156 (1978)

(enforcement of State oil tanker restrictions); Florida

Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132,

134 (1963) (enforcement of State agricultural

standards).

B. Respondents’ Cause Of Actiow Is

Inconsistent With Existing Federal

Statutory Remedies.

To expand the cause of action contemplated by

Ex parte Young and Shaw to plaintiffs without

federal rights or defenses, furthermore, would bring

it into tension with the causes of action actually

enacted by Congress, and with the limitations this

Court has placed on implying additional statutory

causes of action.

All parties, including Respondents, appear to

agree that Congress did not intend 42 U.S.C.

§ 1396a(a)(30)(A) of the Medicaid Act to create a

private right of action, and that this Court’s test for

implying a statutory cause of action therefore is not

met. Stoneridge Inv. Partners, LLC v. Scientific-

Atlanta, 552 U.S. 148, 16465 (2008). And yet

Respondents have brought suit to enforce that

provision against the State of California for their

own benefit. To put the matter most starkly, all

parties agree that Section 1396a does not create a

private cause of action, but Respondents are suing

under it anyway, aided by nominal reliance on the

Supremacy Clause. Respondents’ use of the

Supremacy Clause would override the limitations

this Court has properly placed on implied statutory

causes of action.

The consequences would be extraordinary.

Today, this Court finds implied statutory causes of

action “only if the underlying statute can be

interpreted to disclose [congressional] intent to

create onef.]” Stoneridge, 552 U.S. at 164-65

(emphasis added). That rule rests on the sound

presumption that “[t]he decision to extend the cause

of action is for Congress, not for us.” Jd. at 165. This

Court’s role has been “to interpret the statute

Congress has passed to determine whether it

displays an intent to create not just a private right

but also a private remedy.” Alexander v. Sandoval,

532 U.S. 275, 286 (2001). And in the absence of

Congressional intent, this Court has held “that a

cause of action does not exist and courts may not

create one, no matter how desirable that might be as

a policy matter, or how compatible with the statute.”

Sandoval, 532 U.S. at 286-87. Respondents’ theory,

in contrast, would mean that every federal statute

implicitly authorizes a private cause of action

against State or local governmental defendants

under the Supremacy Clause, whether it creates

causes of action or affirmative defenses or not, so

long as it has potentially pre-emptive effects. By

limiting implied causes of action before, this Court

has rejected that position, and should do so again.

Respondents’ Supremacy Clause theory would

also supplant much of Section 1983, which (as

mentioned above) creates an injunctive remedy for

violations of federal rights but not a free-standing

cause of action in all instances of alleged pre-

emption. See, e.g., Gonzaga Univ. v. Doe, 536 U.S.

273, 283 (2002) (plaintiffs may not sue under § 1983

for State violation of federal statute unless the

statute creates an “unambiguously conferred right”).

Virtually every suit for an injunction under Section

1983, after all, could be characterized as alleging

federal pre-emption, and under the Ninth Circuit's

reasoning all a plaintiff would then need to establish

is standing. Respondent's Supremacy Clause cause

of action, in other words, renders a statutory cause of

action and remedy almost entirely redundant.

That effect is even more striking because

members of the Congress that enacted Section 1983's

predecessor in 1871 evidently believed that its

equitable remedies were new, and necessary to

vindicate federal rights. Senator Frelinghuysen

supported the bill on the ground that an “injured

party should have an original action in our Federal

courts, so that by injunction . . . he could have relief’

for violations of his rights. Cong. Globe, 42d Cong.,

ist Sess., at 501 (1871). Senator Carpenter said that

before the Fourteenth Amendment, Congress lacked

the “affirmative power” to “save the citizen from the

violation of any of his rights by the State

Legislatures[.]” “[T]he only remedy,” he said, “was a

judicial one when the case arose.” TZId. at 577

(emphasis added). Just as the Supremacy Clause’s

history indicates, vindication of federal rights had to

await occasion for defensive use. As for affirmatively

compelling State compliance with federal law,

Representative Lowe understood it to be impossible

without Section 1983: “The Federal Government

cannot serve a writ of mandamus upon State

Executives . . . to compel them to. . . protect the

rights, privileges, and immunities of citizens. There

is no legal machinery for that purpose... . Hence

this bill throws open the doors of the United States

courts to those whose rights under the Constitution

are denied or impaired.” Jd. at 376. Even against

the background of federal cases such as Osborn,

which acknowledged an Ex parte Young-type action

as early as 1824, Congress understood itself to be

creating a new equitable remedy that would not have

existed otherwise. Respondents’ argument that the

same remedy was always available under the

Supremacy Clause disregards this evidence of

congressional intent.

The cause of action asserted by Respondents

would be a departure from the Supremacy Clause’s

history and meaning and would radically rework the

principles and authorities governing the assertion of

federal supremacy against the States today. Because

Respondents lack either a federal cause of action or a

federal equitable right to be free of pre-empted State

enforcement, federal law gives them no basis for

relief.

CONCLUSION

The Court should reverse the judgment of the

United State Court of Appeals for the Ninth Circuit.

Respectfully submitted,

Michael W. McConnell