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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2011
- **Citation:** 562 U.S. 1177

## Text

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,
v.
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,
v.
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.

ss

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-

il

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

iv

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

Vv

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

vi
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.

2

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.

3

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

4

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

5

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

6

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).

7

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.

8

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.

9

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

10

“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

11

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

12

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.

13

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.

14

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)

15

(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.

16

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.

17

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

18

“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).

19

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

20

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

21

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-

22

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

23

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

24

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.

25

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

26

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)

27

(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

28

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

29

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

30

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

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

May 25, 2011

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0644%3A25. Public record. Not legal advice.