Amicus Curiae Brief — Armstrong v. Exceptional Child Ctr., Inc., 135 S. Ct. 44 (2014) (No. 14-15)

~ Supreme _

FI epee

DEC 2 4 2014

No. 14-15

PTE OL EMK

IN THE ’ U.S.

Supreme Court of the United States

RICHARD ARMSTRONG, et ai.,

Petitioners,

Vv.

EXCEPTIONAL CHILD CENTER, INC., et ai.,

Respondents.

On Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

BRIEF OF THE CHAMBER OF COMMERCE OF

THE UNITED STATES OF AMERICA AS

AMICUS CURIAE IN SUPPORT OF

RESPONDENTS

KATE COMERFORD TODD CARTER G. PHILLIPS*

TYLER R. GREEN PETER D. KEISLER

U.S. CHAMBER QUIN M. SORENSON

LITIGATION CENTER, INC. LOWELL J. SCHILLER

1615 H Streot, N.W. SIDLEY AUSTIN LLP

Washington, D.C. 20062 1501 K Street, N.W.

Washington, D.C. 20005

(202) 736-8000

cphillips@sidley.com

Counsel for Amicus Curiae

December 24, 2014 * Counsel of Record

ene eee

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

I.

Il.

TABLE OF CONTENTS

THE SUPREMACY CLAUSE SUPPORTS

A PRIVATE RIGHT OF ACTION TO

ENJOIN PREEMPTED STATE

[ASE 0 APE Gecnsersconcccsssapssiuussinneassmenaaial

A.A Preemption Claim Arising Directly

Under The Supremacy Clause Is

Consistent With Original

B. This Court Has Consistently Recognized

Preemption Claims Under The Suprem-

COEF CID occenccsicctnscinesnessmionmmniiaimmaan mal

C. Statutory Authorization Is Not A Pre-

requisite To A Preemption Claim Under

the Supremacy Clause ...................-.ccce0000s

1. Constitutional Claims For Equitable

Relief Do Not Require Statutory

PREETI a cecocvesvemnceimniciciaanmmennl

2. The Analysis Applied In Statutory

Right Of Action Cases Does Not Apply

To Constitutional Claims .....................

THE SUPREMACY CLAUSE SUPPORTS

PREEMPTION CLAIMS BASED ON

FEDERAL STATUTES ENACTED

UNDER THE SPENDING CLAUSE............

(a)

10

14

15

19

‘i

TABLE OF CONTENTS—continued

Page

A. A Preemption Claim Cannot Be Limited

Based On The Constitutional Authority

Under Which The Federal Statute Was

a eetmnneone 25

B.The Structure Of Spending Clause

Legislation Does Not Preclude A

a cndennnnnente 28

IIIT sii chesinsithansopiinscininbabenssinaneonnsnsesenenee 33

TABLE OF AUTHORITIES

CASES Page

Alexander v. Sandoval, 532 U.S. 275

RAREST ORI SES A tat passim

Allied Structural Steel Co. v. Spannaus,

ee Ss Si iniccctcevcnniasiteneunneseneanants 17

Am. Nat? Red Cross v. S.G., 505 U.S. 247

EERE ee ees EO ees 24

Am. Trucking Ass’ns v. City of L.A., 133 S.

So, Se Ce cestinitaphesannetamnensuniinameninanne 2, 11, 28

Ark. Dep’t of Health & Human Servs. v.

Ahlborn, 547 U.S. 268 (2006)............. 11, 26, 31

Astra USA, Inc. v. Santa Clara Cnty., 131

Be a PE EE ics ccd ncsciececcanigtpenmizosoanmcntictions 30

Baker v. Carr, 369 U.S. 186 (1962).............. 16, 24

Barnes v. Gorman, 536 U.S. 181 (2002)....... 28

BellSouth Telecomms., Inc. v. MCImetro

Access Transmission Servs., Inc., 317

F.3d 1270 (11th Cir. 2003)........................- 11

Bennett v. Arkansas, 485 U.S. 395 (1988).... 26

Bennett v. Ky. Dep’t of Educ., 470 U.S. 656

TTI sccnsasescehdneapdtnacinemendienhlibedipiiceiaeaiainbeatiiainecs 28

Bivens v. Six Unknown Named Agents of

Federal Bureau of Narcotics, 403 U.S.

EE Se 15, 17

Blum v. Bacon, 457 U.S. 132 (1982)........ 5, 26, 27

Bond v. United States, 131 S. Ct. 2355

| ERE PFN ESE et OE aS 3, 4, 18, 25

Bush v. Lucas, 462 U.S. 367 (1983).............. 16

Clallam Cnty. v. United States, 263 U.S.

iad ian aie ee ee 11

Cannon v. Univ. of Chi., 441 U.S. 677

ESET EAC Dara RSE et 4, 31, 32

Carlson v. Green, 446 U.S. 14 (1980)........... 15, 16

Chamber of Commerce of the United States

v. Brown, 554 U.S. 60 (2008)..................... 2

iv

TABLE OF AUTHORITIES—continued

Page

Chamber of Commerce of the United States

v. Whiting, 131 S. Ct. 1968 (2011)............. 2

Cherokee Nation v. Georgia, 30 U.S. (5

8 IEEE SEL a aR oo ae 12

City of Burbank v. Lockheed Air Terminal,

Inc.,

BF nn ee ee 11

Cloverleaf Butter Co. v. Patterson, 315 U.S.

RE LEE are aot eS eee 11

Corr. Servs. Corp. v. Malesko, 534 U.S. 61

SEE SERRE Se Sa DCaaee Seer ore ae passim

Crosby v. Natl Foreign Trade Council, 530

I 2, 25, 26

CSX Transp., Inc. v. Williams, 406 F.3d

I 11

Cummings v. City of Chi., 188 U.S. 410

ETSY SEE RE een ea mere Be 11

Davis v. Gray, 83 U.S. (16 Wall.) 203

ERS EREL EE Eee ree Son E NT EI 17

Davis v. Passman, 442 U.S. 228 (1979)....... 13, 15

Dobbins v. Comm’rs of Erie Cnty., 41 U.S.

8 ERE ree a 11

Douglas v. Indep. Living Ctr. of S. Cal.,

Inc., 132 S. Ct. 1204 (2012)...............0........ 2, 24

Douglas v. Seacoast Prods., Inc., 431 U.S.

ASE EER pee ae ae ee 23

Elizabeth Blackwell Health Ctr. For

Women v. Knoll, 61 F.3d 170 (3d Cir.

I ttccitciniuidllinsctniccenieiealaniilieeptatantslenmaltibiahbaeumaitiianiie 11

Engine Mfrs. Ass'n v. S. Coast Air Quality

Mgmt. Dist., 541 U.S. 246 (2004) .............. 27

Fallbrook Irrigation Dist. v. Bradley, 164

I inicaintnictriial iceamuiietdamattiiaias 17

First Natl Bank of E. Ark. v. Taylor, 907

ef gs) |) ee 11

v

TABLE OF AUTHORITIES—continued

Page

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

Se ee ME sic iniciccntdtcsnitniisibedaineeiibbisaiinin 11

Foster-Fountain Packing Co. v. Haydel, 278

OF et ee 17

Free Enter. Fund v. Pub. Co. Accounting

Oversight Bd., 561 U.S. 477 (2010) ... 18, 19, 22

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

Ue 2

Golden State Transit Corp. v. City of L.A.,

Ea passim

Gonzaga Univ. v. Doe, 536 US. 273

SI iciconegsidepeteatdouniantetiabeiemeisamnasians 12, 19, 21

GTE N., Inc. v. Strand, 209 F.3d 909 (6th

RESORTS SERS Settee WTI eraees seen 11

Hodel v. Irving, 481 U.S. 704 (1987) ............ 17

Houston v. Moore, 18 U.S. (5 Wheat.) 1

TIIITI cinicscsanstgiahiuceibaineniaiciasanielicisiinneiaassistisamnianaiven 11

Hui v. Castaneda, 559 U.S. 799 (2010) ........ 16

Ill. Ass'n of Mortgage Brokers v. Office of

Banks & Real Estate, 308 F.3d 762 (7th

CN, Ce icceicintaibeancinhinnadsasiniunitsiiataitonimeectinie 11

King v. Smith, 392 U.S. 309 (1968) ............. 26, 29

Lawrence Cnty. v. Lead-Deadwood Sch.

Dist. No. 40-1, 469 U.S. 256 (1985) ... 11, 14, 26

Local Union No. 12004 v. Massachusetts,

377 F.3d 64 (1st Cir. 2004) ...................00+ 11

Loyal Tire & Auto Ctr., Inc. v. Town of

Woodbury, 445 F.3d 136 (2d Cir. 2006)....11, 22

Maine v. Thiboutot, 448 U.S. 1 (1980).......... 22

Medtronic, Inc. v. Lohr, 518 U.S. 470

ETI cpceseesinessiatnenondesieeninnsensendsesineniaeiemntedan 23, 26

Mintz v. Baldwin, 289 U.S. 346 (1933) ........ 11

Monroe v. Pape, 365 U.S. 167 (1961)............ 19

Nat Cable & Telecomms. Ass’n v. Brand X

Internet Servs., 545 U.S. 967 (2005).......... 24

vi

TABLE OF AUTHORITIES—continued

Page

Osborn v. Bank of the U.S., 22 U.S. (9

SRE Se Se 11, 12, 27

Pac. Gas & Elec. Co. v. State Energy Res.

Conservation & Dev. Comm’n, 461 U.S.

RENEW aE SR oe aU BT Eee ee 11

Pennhurst State Sch. & Hosp. v.

Halderman, 451 U.S. 1 (1981)........... 26, 28, 29

Perez v. Campbell, 402 U.S. 637 (1971)........ 11

Pharm. Research & Mfrs. Of Am. v. Walsh,

538 U.S. 644 (2003)......................--eeee0es 2, 11, 27

Planned Parenthood of Houston & Se. Tex.

v. Sanchez, 403 F.3d 324 (5th Cir. 2005).. 11

Planned Parenthood of Kan. & Mid-Mo. v.

Moser, 747 F.3d 814 (10th Cir. 2014)........ 11

PLIVA, Inc. vy. Mensing, 131 S. Ct. 2567

REESE 8 eae Se Cake 5, 23, 25, 32

Powell v. McCormack, 395 U.S. 486 (1969).. 17

Qwest Corp. v. City of Santa Fe, 380 F.3d

ee ED Sy BINED eiinstcictstcicncstdecwneceeninicen 11

R.R. Co. v. Peniston, 85 U.S. (18 Wall.) 5

(REESE EER RELATE AREY SPS SO EAS 11

Raines v. Byrd, 521 U.S. 811 (1997)............. 24

Ray v. Atl. Richfield Co., 435 U.S. 151

PRE ie Foard Sere are a 11

Riegel v. Medtronic, Inc., 552 U.S. 312

ESET ane) FEC AS Bese Ae sees 14

Rosado v. Wyman, 397 US. 397

ERNE EN at Te PREC ee ON 29, 31, 32

Rowe v. N.H. Motor Transp. Ass’n, 552 U.S.

| EET Te) “LOT ree ae 2, 11, 27

S.-Cent. Timber Dev., Inc. v. Wunnicke, 467

OE) __ARSEEESEIRSIRE Bd ASSL Se Sees oe 4,17

Schweicker v. Chilicky, 487 U.S. 412

RB REESE ARES eae ons eee 16

Vii

TABLE OF AUTHORITIES—continued

Page

Shaw v. Delta Airlines, Inc., 463 U.S. 85

EP peer Sener rerson eer mice rere 11, 13

Soc’y for the Propogation of the Gospel v.

Town of New Haven, 21 U.S. (8 Wheat.)

(ESSERE cee eee. eee 11

Swift & Co. v. Wickham, 382 U.S. 111

REE ETE 14, 16

Townsend v. Swank, 404 U.S. 282 (1971).... 26

U.S. Steel Corp. v. Multistate Tax Comm'n,

GE TED. GES CR cstccncetercscsccscccedensccesenss 17

United States v. Stanley, 483 U.S. 669

ITI tis cecerieialictiessahieniiiacapnelinigienigedpaniuaeninenaie 16

Va. Office for Prot. & Advocacy v. Stewart,

I ee ee i aiiinicicentiicncteitunncesaneie 13

Verizon Md., Inc. v. Global NAPS, Inc., 377

F.3d 355 (4th Cir. 2004)................cccceeereeees 11

Verizon Md. Inc. v. Pub. Serv. Comm’n, 535

i EE cccecnnseinanaicnesusimenintnaiondennisnen 13, 26

Vt. Agency of Natural Res. v. U.S. ex rel.

Stevens, 529 U.S. 765 (2000)...................... 14

Watters v. Wachovia Bank, N_A., 550 U.S. 1

TITIITT icscpniedeipesdanintecnatbinaiicaieapeapanbenpsinesemedninnien 2

Weston v. City Council, 27 U.S. (2 Pet.) 449

scsi aacleniaiaslaainieeasnippeabeeipaieeimmiganntemaela 11

Wilder v. Va. Hosp. Ass'n, 496 U.S. 498

ITI ccsicstanenccenieiiniandiabbanidinaamianiinininnens 31

Wright v. City of Roanoke Redevelopment &

Hous. Auth., 479 U.S. 418 (1987) .............. 31

Wyeth v. Levine, 555 U.S. 555 (2009) ........... 26

Ex parte Young, 209 U.S. 123 (1908)........... 12, 13

Youngstown Sheet & Tube Co. v. Sawyer,

Ne ei Se IE ciiicienciisnntenccouiamienisanenii 17

TABLE OF AUTHORITIES—continued

CONSTITUTIONS AND STATUTES Page

Be is MB ceincencscrcocssceesensenpenniee 6

of G&S ene 1, 21, 25

a eg iinisesdiidhlatnindevsicnipeniiopetenebenien 19

LEGISLATIVE HISTORY

Cong. Globe, 42d Cong. Ist Sess.

acl 19, 20, 21

SCHOLARLY AUTHORITIES

Section 1983 and Federalism, 90 Harv. L.

SN: IY ST TT ccscasniesseabinihbinbiesandieieeemiinmaaii 19

Marsha S. Berzon, Securing Fragile

Foundations: Affirmative Constitutional

Adjudication in Federal Courts, 84

N.Y.U. L. Rev. 681 (2008) ...........cssesessssssees 8

Christopher R. Drahozal, The Supremacy

(SRE ASSERT ee nO oe 6, 7

Richard H. Fallon, Jr. & Daniel J. Meltzer,

New Law, WNon-Retroactivity, and

Constitutional Remedies, 104 Harv. L.

RRR SA SR ERS 8

Richard H. Fallon, Jr. et al., Hart &

Wechsler’s The Federal Courts & The

Federal System (5th ed. 2003) ............... passim

James S. Liebman & William F. Ryan,

“Some Effectual Power”: The Quantity

and Quality of Decisionmaking Required

of Article III Courts, 98 Colum. L. Rev.

ESERIES SEE Sa PEM UPS AP oe to 8

John E. Lockwood et al., The Use of the

Federal Injunction in Constitutional

Litigation, 43 Harv. L. Rev. 426 (1930)..... 13

ix

TABLE OF AUTHORITIES—continued

Page

Thomas O. Main, Traditional Equity and

Contemporary Procedure, 78 Wash. L.

RESTS AE ele RR ee 10

John E. Murray, Jr., Corbin on Contracts

Eb IEA eer oe one Ree en ESE 30

Caleb Nelson, Preemption, 86 Va. L. Rev.

REE 23

Elmer Beecher Russell, The Review of

American Colonial Legislation by the

King in Council (1915) ....................cccceeeeeee 10

Arthur M. Schlesinger, Colonial Appeals to

the Privy Council, 28 Pol. Sci. Q. 279

asda raieds hid ednlendsasniiaiedinemebiiaciebidiie 10

Robert Bruce Scott, The Increased Control

of State Activities by the Federal Courts,

3 Am. Pol. Sci. Rev. 347 (1909).................. 13

David Sloss, Constitutional Remedies for

Statutory Violations, 89 Iowa L. Rev. 355

TI ctchivescisciuin devehestind timededaadeaunoaieniedmientiind 7

13D Charles A. Wright et al., Federal

Practice and Procedure (3d ed. 2008)........ 5

OTHER AUTHORITIES

The Debates in the Several State

Conventions on the Adoption of the

Constitution (Jonathan Elliot ed., 2d ed.

aera ated oticeueonbuisiunbabhin

ee I BI Wii irccictditnitcittennemicnaticenincnies

The Federalist No. 44 ...............ccese-e0eeeeeeeeeees

The Federalist No. 80 ................--ceceeeeeeeseeees

The Records of the Federal Convention of

1787 (Farrand ed. 1911) ...................0.00 passim

Restatement (Second) of Contracts (1981)... 30

© oo ©

x

TABLE OF AUTHORITIES—continued

Page

James Madison, Vices of the Political

System of the United States, in 9 The

Papers of James Madison 346 (1975)........ 6

1 Joseph Story, Commentaries on Equity

Jurisprudence as Administered’ in

England and America (14th ed. 1918)...... 10

Erwin C. Surrency, Report on Court

Procedures in the Colonies (1700),

reprinted in 9 Am. J. of Legal Hist. 167

RATIO RISE Ba ok ANd SEER ESALE Seeds ore 10

INTEREST OF AMICUS CURIAE'

The Chamber of Commerce of the United States of

America (“Chamber”) is the world’s largest business

federation. It represents 300,000 direct members and

indirectly represents the interests of more than three

million companies and professional organizations of

every size, in every industry, and from every region of

the country. An important function of the Chamber

is to represent the interests of its members in

matters before Congress, the Executive Branch, and

the courts. To that end, the Chamber regularly files

amicus curiae briefs in—or itself initiates—cases that

raise issues of vital concern to the Nation’s business

community.

This is such a case. The Supremacy Clause of the

Constitution, which guarantees that federal law

“shall be the supreme Law of the Land,” U.S. Const.

art. VI, cl. 2, serves a vital role in our national

economy by protecting federal laws and programs

against interference by subordinate governments—

thereby eliminating the burdens that such

interference places on individuals and businesses.

The Chamber's members thus depend on the robust

enforcement of the Supremacy Clause to protect

against state and local mandates that interfere or

conflict with federal law. In this case, petitioners

seek to weaken or eliminate a significant, time-tested

method for such enforcement: the cause of action for

1 No counsel for any party to these proceedings authored this

brief, in whole or in part. No entity or person, aside from

amicus curiae, its members, and its counsel, made any monetary

contribution for the preparation or submission of this brief.

Petitioners and Respondents have consented to the filing of this

brief. Letters reflecting such consent have been filed with the

Clerk.

2

equitable relief arising directly under the Supremacy

Clause.

The Chamber has relied on this cause of action in

seeking to vindicate the interests of its members.

See, e.g., Am. Trucking Ass’ns v. City of L.A., 133 S.

Ct. 2096 (2013); Chamber of Commerce of the United .

States v. Whiting, 131 S. Ct. 1968 (2011); Chamber of

Commerce of the United States v. Brown, 554 U.S. 60

(2008). It also frequently supports such suits as an

amicus curiae. See, e.g., Douglas v. Indep. Living Ctr.

Of S. Cal., Inc., 132 S. Ct. 1204 (2012); Rowe v. N.H.

Motor Transp. Ass’n, 552 U.S. 364 (2008); Watters v.

Wachovia Bank, N.A., 550 U.S. 1 (2007); Pharm.

Research & Mfrs. of Am. v. Walsh, 538 U.S. 644

(2003) (PhRMA); Crosby v. Natl Foreign Trade

Council, 530 U.S. 363 (2000); Gade v. Natl Solid

Wastes Mgmt. Ass'n, 505 U.S. 88 (1992). Accordingly,

the Chamber and its members have a substantial

interest in ensuring that this Court correctly resolves

the important issue presented here.

STATEMENT

Two centuries of this Court’s precedents support a

right of action to enjoin state legislation that is

invalid under the Supremacy Clause. E.g., Richard

H. Fallon, Jr. et al., Hart & Wechsler’s The Federal

Courts & The Federal System 903 (5th ed. 2003)

(Hart & Wechsler). Petitioners and their amici offer

no persuasive reason why the availability of

preemption claims arising under the Supremacy

Clause should now be called into question.

They nevertheless argue that, even if these claims

exist generally, they should be disallowed in this

particular case because the federal Medicaid statute

claimed to have been violated does not confer a

private right of enforcement. Petrs. Br. 13-15; U.S.

3

Br. 8-10. The claims in this case do not, however,

seek to “enforce” the statute, or to assert rights

granted thereunder. Rather, they seek to vindicate

the structural, constitutional interest in the

supremacy of national laws. That interest is

enforceable in the federal judiciary as a matter of

constitutional law, as this Court has “long ...

recognized.” Corr. Servs. Corp. v. Malesko, 534 U.S.

61, 74 (2001); see also Bond v. United States, 131 S.

Ct. 2355, 2364-66 (2011). Statutory enforcement

procedures may provide alternative (and often

expanded) means by which state violations of federal

law can be addressed, but these procedures do not

displace a right of action for equitable relief under

the Supremacy Clause.

SUMMARY OF THE ARGUMENT

The claims in this case, to enjoin Idaho from

enforcing preempted state law, are supported by a

long and unbroken line of precedent recognizing an

equitable right of action under the Constitution to

address ongoing constitutional violations. E.g.,

Malesko, 534 U.S. at 74. There is no basis to weaken

or eliminate the constitutional cause of action which

these claims, and many others like them, raise.

1. It is “well-established” that the Constitution

itself supports a right of action seeking prospective

equitable relief to address constitutional violations.

Hart & Wechsler, supra, at 903. Scores of this Court’s

opinions have recognized such claims, and never has

this Court suggested that this constitutional right of

action depends for its existence on congressional

authorization. Infra Part I. Such a prerequisite

would be inconsistent with this Court’s approach to

other structural constitutional provisions that, like

the Supremacy Clause, always have been understood

to support claims for prospective equitable relief

4

without need for an authorizing statute. E.g., S.-

Cent. Timber Dev., Inc. v. Wunnicke, 467 U.S. 82, 87

(1984); see also Bond, 131 S. Ct. at 2364-66.

Reaffirming the longstanding recognition of this

constitutional right of action would not be an “end

run” (Petrs. Br. 19) around this Court’s decisions

requiring “rights-creating’ language as 4

precondition to statutory causes of action. Infra Part

1C.2. Claims seeking to enforce a statute, whether 42

U.S.C. § 1983 or any other, arise under the statute

and thus are available only when authorized thereby.

E.g., Golden State Transit Corp. v. City of L.A., 493

U.S. 103, 106 (1989). Claims seeking to enforce the

Constitution, by contrast, arise as a necessary

incident of the constitutional structure. E.g., S.-Cent.

Timber, 467 U.S. at 87; see also Golden State, 493

U.S. at 116-17 (Kennedy, J., dissenting); Cannon v.

Univ. of Chi., 441 U.S. 677, 733 n.3 (1979) (Powell, J.,

dissenting). Whatever role Congress may have in

crafting adjudicatory mechanisms and remedies for

constitutional claims, the Constitution itself

empowers the judiciary to entertain suits alleging

ongoing constitutional violations, including violations

of the Supremacy Clause, and to abate them when

appropriate through prospective equitable relief.

2. This right of action is no less available when

the preemption claim implicates a federal statute

enacted under authority of the Spending Clause.

Infra Part II.A. The constitutional basis for the

federal statute has never been held relevant to an

inquiry into whether a state law is preempted, or to

the antecedent question of whether a cause of action

is available. To the contrary, this Court repeatedly

has upheld equitable relief on claims that alleged a

conflict between state legislation and requirements of

5

federal spending programs. See, e.g., Blum v. Bacon,

457 U.S. 132, 145-46 (1982).

The possibility that federal funding might be

withdrawn does not eliminate individual preemption

claims. Infra Part II.B. So long as the State partici-

pates in the federal program, it is subject to the

conditions imposed by federal law, and conflicting

state legislation is void whether or not it is “possible”

that the conflict might be avoided by a future change

in circumstances. PLIVA, Inc. v. Mensing, 131 S. Ct.

2567, 2579 (2011). Regardless of what remedies

might be available to the federal government to

vindicate its own interest in enforcing federal law,

individuals and businesses injured by unconsti-

tutional state legislation retain the right to seek

prospective equitable relief in federal court.

ARGUMENT

I. THE SUPREMACY CLAUSE SUPPORTS A

PRIVATE RIGHT OF ACTION TO ENJOIN

PREEMPTED STATE LEGISLATION.

It has long been accepted, as the United States

acknowledges, U.S. Br. 15-17, that the Supremacy

Clause supports a claim for individuals and

businesses to challenge preempted state legislation.

Hart & Wechsler, supra, at 903; see also 13D Charles

A. Wright et al., Federal Practice and Procedure

§ 3566, at 289-92 (3d ed. 2008). That principle,

although disputed by petitioners, Petrs. Br. 35-39,

accords with the original understanding of the

Supremacy Clause, and two centuries of caselaw

thereafter, as well as this Court’s decisions in

statutory rights cases.

6

A. A Preemption Claim Arising Directly

Under The Supremacy Clause Is Con-

sistent With Original Understanding.

There is no evidence that the Framers would have

thought that individuals adversely affected by

preempted state legislation would be unable to seek

equitable relief from the federal judiciary. To the

contrary, the historical record suggests that they

expected and intended such a right of action to be

available.

1. The Framers’ principal objective in crafting the

Supremacy Clause was to establish an effective

mechanism by which States could be compelled to

comply with federal law. Christopher R. Drahozal,

The Supremacy Clause 6-7 (2004); see alao, e.g., 3 The

Records of the Federal Convention of 1787, at 524-29

(Farrand ed. 1911) (Farrand). Although the Articles

of Confederation had declared the principle of

national supremacy and directed the States to “abide

by” and “inviolably observe[]” national law, Art. of

Confed., art. XIII, they provided no method to enforce

that principle, with the result that several States

enacted legislation or exercised powers (such as

negotiating treaties with foreign countries) in direct

contravention of national law. Drahozal, supra, at 6-

7; see also James Madison, Vices of the Political

System of the United States, in 9 The Papers of James

Madison 345, 348-58 (1975).

To remedy this defect, each plan offered at the

Constitutional Convention would have _ given

authority to one or more branches of the federal

government to invalidate state legislation that was

inconsistent with national policy—and, when

necessary, to compel compliance. See 3 Farrand,

supra, at 524-29; see also Drahozal, supra, at 6-7.

For instance, one plan, offered by the delegates from

7

New Jersey, would have allowed the executive to call

forth the military against a recalcitrant State, 1

Farrand, supra, at 245; another, associated with the

Virginia delegation, would have vested in Congress

the power to “negative” state legislation deemed

inconsistent with national law, id. at 21, 54, 164-65.

The proposal ultimately adopted, embodied in the

Supremacy Clause, shared the same purpose as other

plans but delegated responsibility for enforcing

national supremacy to the judiciary. E.g., id. at 168,

313, 322; 2 Farrand, supra, at 28-29, 144, 169, 183,

389-91, 417, 603; see also 3 Farrand, supra, at 524-

29; Drahozal, supra, at 20-23.

A private right of action to challenge preempted

state legislation is necessary to allow the judiciary to

satisfy this constitutional purpose. State legislation

can be presented to federal courts only in the context

of “cases” or “controversies,” e.g., 2 Farrand, supra, at

430, and the parties most able to bring these cases—

in modern terms, those with “standing’—are those

adversely affected by the state legislation. See, e.g.,

David Sloss, Constitutional Remedies for Statutory

Violations, 89 Iowa L. Rev. 355, 401-03 (2004).

Without a right of action, there would be no

mechanism by which unconstitutional state laws

could be addressed, except where the State itself

elected to bring an enforcement action in the courts,

thereby implicating the Supremacy Clause as a

defense.

It is inconceivable, given the Framers’ then-recent

experience under the Articles of Confederation, e.g., 1

Farrand, supra, at 166-67, 316-17, 326, that they

would have intended the enforcement of national

supremacy to depend on voluntary action by the

States. Nor would they likely have viewed the

Supremacy Clause as nothing more than a “rule of

‘

i

8

decision,” Petrs. Br. 36, directing States to follow

national law—as had the Articles previously—but

giving the federal courts no actual authority to

invalidate unconstitutional state legislation. See,

e.g., James S. Liebman & William F. Ryan, “Some

Effectual Power”: The Quantity and Quality of

Decisionmaking Required of Article III Courts, 98

Colum. L. Rev. 696, 762 (1998). The Framers

understood and intended that the federal judiciary

would be open to individuals injured by

unconstitutional state legislation and empowered to

declare state legislation invalid and to prospectively

enjoin its enforcement. See, e.g., Marsha S. Berzon,

Securing Fragile Foundations: Affirmative

Constitutional Adjudication in Federal Courts, 84

N.Y.U. L. Rev. 681, 706-07 (2009).

2. This understanding is reflected in the

Convention and ratification debates. Throughout

those proceedings, the Supremacy Clause was

consistently described as giving judges authority

affirmatively to “set aside” and “declare void” (not

merely “decline to enforce”) state legislation that

contravenes federal law. E.g., 2 Farrand, supra, at

27-28, 391. Although constitutional remedies and

rights of action were not a focus of the Convention,

see Richard H. Fallon, Jr. & Daniel J. Meltzer, New

Law, Non-Retroactivity, and Constitutional Remedies,

104 Harv. L. Rev. 1731, 1779 (1991), several

delegates expressed the understanding that the

federal judiciary should entertain claims by “any

individual conceiving himself injured or oppressed by

the partiality or injustice of a law of any particular

State,” 3 Farrand, supra, at 55-56 (Randolph), and

that federal judges, when presented with an

unconstitutional state law, would be able to grant

prospective equitable relief in the form of a

9

“supersedeas,” id. at 524-29 (Madison).? During the

ratification debates, both supporters and opponents

of the Constitution assumed that the federal judiciary

would be empowered “in the first instance” to decide

the constitutionality of state laws—presumably in

actions commenced by individuals, as it would have

been unlikely for a State to bring an enforcement

action in federal court. Jd. at 286-87; see also id. at

205-07; 3 The Debates in the Several State

Conventions on the Adoption of the Constitution 266

(Jonathan Elliot ed., 2d ed. 1836).

This is consistent with the views set forth in The

Federalist Papers. Petitioners’ amici rely (Br. of Nat'l

Gov. Ass’n 21-22) on a statement by Alexander

Hamilton that the Supremacy Clause “only declares a

truth, which flows immediately and necessarily from

the institution of a federal government.” The

Federalist No. 33 (Hamilton). But Hamilton never

suggested that this “truth” was an unenforceable one.

On the contrary. given the views expressed elsewhere

by both Hamilton and Madison, this statement

suggests that they understood a right of action to

challenge unconstitutional state statutes to be

inherent in the constitutional structure, just as they

understood the right of judicial review of federal

legislation to be inherent in that same structure. See

The Federalist No. 44 (Madison); The Federalist No.

80 (Hamilton).

This understanding ffits squarely within

contemporary legal practice. At the time of the

1 The proposal by Edmund Randolph would have allowed the

judiciary to invalidate not only state legislation found to be

inconsistent with federal law but also any state lawe deemed

“contrary to the principles of equity and justice.” 3 Farrand,

supra, at 56-56; see also 1 Farrand, supra, at 97-98; 2 Farrand,

supra, at 73-80.

10

Founding, colonial and English judicial practice

permitted individuals to seek redress in equity for

injuries resulting from an ultra vires act or void law.

Thomas O. Main, Traditional Equity and

Contemporary Procedure, 78 Wash. L. Rev. 429, 437-

50 (2003).5 For example, the English Board of Trade

accepted and addressed petitions from colonists

challenging local acts as inconsistent with English

law. E.g., Elmer Beecher Russell, The Review of

American Colonial Legislation by the King in Council

50-52 (1915). The English Privy Council adjudicated

appeals by colonists alleging that local provisions

were “repugnant” to English law. £.g., Arthur M.

Schlesinger, Colonial Appeals to the Privy Council, 28

Pol. Sci. Q. 279, 287-88 (1913). Petitioners’ amici

seek to downplay these procedures as “fundamentally

political and administrative in nature,” Br. of Nat'l

Gov. Ass’n 15, but do not explain why these

analogous practices would not have informed the

Framers’ understanding of the role of the judiciary in

reviewing local legislation. E.g., 1 Farrand, supra, at

105, 138-40; 2 Farrand, supra, at 73-80 (referring to

English practice in addressing judicial review).

B. This Court Has Consistently Recognized

Preemption Claims Under The Suprem-

acy Clause.

Consistent with this understanding, for nearly 200

years the Court has addressed claims seeking

equitable relief against the operation of a preempted

state law. Hart & Wechsler, supra, at 903. There are

8 See generally Erwin C. Surrency, Report on Court Procedures

in the Colonies (1700), reprinted in 9 American Journal of Legal

History 167, 176 (1965); 1 Joseph Story, Commentaries on

Equity Jurisprudence as Administered in England and America

(14th ed. 1918).

11

scores of such cases in this Court alone, just a

sampling of which are set forth in the margin,‘ and in

the federal courts of appeals. These cases were

4 See, e.g., Am. Trucking, 133 S. Ct. 2096; Rowe, 552 U.S. 364;

Ark. Dep't of Health & Human Servs. y. Ahlborn, 547 U.S. 268

(2006); PhRMA, 538 U.S. 644; Gade, 505 U.S. 88; Lawrence

Cnty. v. Lead-Deadwood Sch. Dist. No. 40-1, 469 U.S. 256

(1986); Shaw v. Delta Airlines, Inc., 463 U.S. 85 (1983); Pac. Gas

& Elec. Co. v. State Energy Res. Conservation & Dev. Comm'n,

461 U.S. 190 (1983); Ray v. Atl. Richfield Co., 435 U.S. 151

(1978); City of Burbank v. Lockheed Air Terminal, Inc., 411 US.

624 (1973); Perez v. Campbell, 402 U.S. 637 (1971); Fla. Lime &

Avocado Growers, Inc. v. Paul, 373 U.S. 132 (1963); Cloverleaf

Butter Co. v. Patterson, 316 U.S. 148 (1942); Mintz v. Baldwin,

289 U.S. 346 (1933); Clallam Cnty. v. United States, 263 U.S.

341 (1923); Cummings v. City of Chi., 188 U.S. 410 (1903); RR.

Co. v. Peniston, 85 U.S. (18 Wall) 5 (1873); Osborn v. Bank of

the U.S., 22 U.S. (9 Wheat.) 738 (1824); cf. Dobbins v. Comm'rs

of Erie Cnty., 41 U.S. (16 Pet.) 435 (1842); Weston v. City

Council, 27 U.S. (2 Pet.) 449 (1829); Soc’y for the Propogation of

the Gospel v. Town of New Haven, 21 U.S. (8 Wheac.) 464 (1823);

Houston v. Moore, 18 U.S. (56 Wheat.) 1 (1820).

5 See, e.g., Loyal Tire & Auto Ctr., Inc. v. Town of Woodbury,

445 F.3d 136, 149 (2d Cir. 2006); CSX Transp., Inc. v. Williams,

406 F.3d 667, 672-74 (D.C. Cir. 2005) (per curiam); Planned

Parenthood of Houston & Se. Tex. v. Sanchez, 403 F.3d 324, 330-

35 (5th Cir. 2005); Qwest Corp. v. City of Santa Fe, 380 F.3d

1268, 1266 (10th Cir. 2004); Verizon Md., Inc. v. Global NAPS,

Inc., 377 F.3d 355, 368-69 (4th Cir. 2004); Local Union No.

12004 v. Massachusetts, 377 F.3d 64, 75 (let Cir. 2004);

BellSouth Telecomms., Inc. v. MCImetro Access Transmission

Servs., Inc., 317 F.3d 1270, 1277-78 (11th Cir. 2003) (en banc);

Ill. Ass'n of Mortgage Brokers v. Office of Banks & Real Estate,

308 F.3d 762, 765 (7th Cir. 2002); GTE N., Inc. v. Strand, 209

F.3d 909, 916 (6th Cir. 2000); Elizabeth Blackwell Health Ctr.

For Women v. Knoll, 61 F.3d 170, 185 (3d Cir. 1996); First Nat’

Bank of E. Ark. v. Taylor, 907 F.2d 775, 776 n.3 (8th Cir. 1990).

But see Planned Parenthood of Kan. & Mid-Mo. v. Moser, 747

F.3d 814, 822-23 (10th Cir. 2014) (rejecting, in a panel decision,

circuit precedent recognizing right of action under Supremacy

Clause).

12

decided in each critical period in the evolution of

enforcing constitutional claims against state actors—

including, among others, the eras shortly after the

Founding; before and after the Civil War and the

enactment of § 1983; and throughout the Twentieth

Century, both before and after this Court’s decisions

in statutory rights cases such as Gonzaga University

v. Doe, 536 U.S. 273 (2002) and Alexander v.

Sandoval, 532 U.S. 275 (2001).

As early as 1824, in Osborn v. Bank of the United

States, 22 U.S. (9 Wheat.) 738 (1824), the Court held

that an entity could seek equitable relief against a

state official acting under a state law preempted by

the Supremacy Clause. Jd. at 838. The Court

expressly rejected the argument (similar to that

offered by petitioners here, Petrs. Br. 36-39) that an

individual who “perceives the approaching danger” of

an invalid state law “can obtain no protection from

the judicial department of the government.” 22 U.S.

(9 Wheat.) at 847. This Court instead held that it is

the “province of [the judiciary], in such cases, to

arrest the injury, and prevent the wrong.” Jd. at 845,

847.

Subsequent cases continued to adjudicate claims for

equitable relief directly under provisions of the

Constitution, including the Supremacy Clause. See

supra note 4. These include, among others, the

landmark decision in Ex parte Young, 209 U.S. 123

(1908), which upheld an individual’s claim to enjoin

state officials from enforcing an unconstitutional

state law. Id. at 145-65. Indeed, the decision went

out of its way to note the long history of such claims

in the federal courts. Jd. at 145-52. And, of course,

6 See also Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 75-80

(1831) (Thompson, J., dissenting) (a claim for equitable relief

against a preempted state law “presents a case for judicial

13

the very purpose of Young was to preclude States

from deterring potential plaintiffs from protecting

their constitutional rights by threatening to penalize

them for non-compliance with the State's

unconstitutional requirement. See id. By holding

that the private party could go to court to enforce the

Constitution against state officials, this Court

rejected the argument ihat constitutional provisions

are enforceable only as a defense to an enforcement

action.

Through the last century and into this one, and

despite changing views of the meaning and relevance

of the phrase “cause of action,” eg., Davis v.

Passman, 442 U.S. 228, 236-44 (1979), this Court

repeatedly has entertained affirmative claims to

enjoin state officials from i.nplementing preempted

state legislation. E.g., Verizon Md. Inc. v. Pub. Serv.

Comm'n, 535 U.S. 635, 642-43 (2002); see also Va.

Office for Prot. & Advocacy v. Stewart, 131 S. Ct.

1632, 1638-39 (2011).7 In Shaw v. Delta Air Lines,

Inc., 463 U.S. 85 (1983), for example, the Court held

that “[a] plaintiff who seeks injunctive relief from

state regulation[ ] on the ground that such regulation

is pre-empted [under] the Supremacy Clause ...

presents a federal question which the federal courts

have jurisdiction under 28 U.S.C. § 1331 to resolve.”

Id. at 96 n.14. These decisions “reaffirm[] the

general rule” that equitable relief is available in

consideration, arising under the lawe of the United States,” and

“an injunction is a fit and proper writ to be issued, to prevent

the further execution of such [state] law/{ |”).

7 See also supra note 4; Robert Bruce Scott, The Increased

Control of State Activities by the Federal Courts, 3 Am. Pol. Sci.

Rev. 347 (1909); John E. Lockwood et al., The Use of the Federal

Injunction in Constitutional Litigation, 43 Harv. L. Rev. 426

(1930).

14

federal court to enjoin state officers from

implementing preempted state law. Lawrence Cnty.

v. Lead-Deadwood Sch. Dist. No. 40-1, 469 U.S. 256,

259 n.6 (1985).

To be sure, many of these decisions assumed the

existence of a claim under the Supremacy Clause,

while focusing directly on questions of jurisdiction or

the like. See, e.g., Swift & Co. v. Wickham, 382 U.S.

111, 114-29 (1965). But, it cannot be disputed that

these cases reflect an unbroken history of allowing

individuals to “vindicate ... pre-emption claims by

seeking declaratory and equitable relief in the federal

district courts.” Golden State, 493 U.S. at 119

(Kennedy, J., dissenting); cf. Vt. Agency of Natural

Res. v. U.S. ex rel. Stevens, 529 U.S. 765, 773-78

(2000) (concluding that the “long tradition” of

“routinely entertain[ing]” qui tam actions was “well

nigh conclusive” of those claims’ justiciability). To

hold otherwise would cast doubt upon, if not directly

overrule, the holdings of these cases and scores

others. What this history also reveals is that a direct

action under the Supremacy Clause has promoted

rather than interfered with a properly functioning

federalist regime because preemption requires clear

intent to oust state law, e.g., Riegel v. Medtronic, Inc.,

562 U.S. 312, 334 (2008), but when it exists there is a

remedy available to the party injured by that law.

C. Statutory Authorization Is Not A Pre-

requisite To A Preemption Claim Under

the Supremacy Clause.

In none of the cases discussed above did this Court

demand “rights-creating” or other authorizing

statutory language as a prerequisite to a right of

action under the Supremacy Clause. See supra note

4. Such a requirement would run counter to a large

corpus of cases approving direct claims under other

15

provisions of the Constitution and is not mandated by

statutory rights cases such as Gonzaga and

Sandoval.

1. Constitutional Claims For Equitable

Relief Do Not Require Statutory

Authorization.

Claims arising directly under provisions of the

Constitution have “long been recognized” by this

Court, without need for statutory authorization.

Malesko, 534 U.S. at 74. Whatever role Congress has

in defining and limiting the scope of remedies that

are available in these actions, particularly with

respect to monetary damages, a claim seeking purely

equitable relief to abate an ongoing constitutional

violation arises as a necessary incident of the

Constitution.

a. This principle underlies Bivens v. Six

Unknown Named Agents of Federal Bureau of

Narcotics, 403 U.S. 388 (1971), and its progeny. That

case, and those that followed from it, held that an

individual whose constitutional rights are infringed

by a federal official may bring an action in federal

court for monetary damages. Id. at 392-97; see also

Carlson v. Green, 446 U.S. 14, 19-21 (1980); Davis,

442 U.S. at 245-49. No statute authorized these

actions, and in some cases Congress had provided

alternative remedial schemes for the violations at

issue. E.g., Green, 446 U.S. at 19-21. Nevertheless,

this Court reasoned that a damages remedy should

be available to individuals injured by constitutional

violations committed by federal officials, in part

because 42 U.S.C. § 1983 provides a comparable

remedy for violations committed by state officials. Id.

at 21-22 & n.6, 24-25.

16

The availability of a damages remedy for

constitutional claims has, of course, been

circumscribed in the years since Bivens, and for good

reasons. E.g., Malesko, 534 U.S. at 68. A damages

remedy is retrospective in nature, intended to

compensate the injured party and deter future

violations, and is not strictly necessary to abate an

ongoing constitutional violation. Green, 446 U.S. at

19-21. For those reasons, the Court generally has

limited it to circumstances in which the violation

could not otherwise be addressed, and has held it

unavailable when Congress provided a “meaningful”

and “effective” alternative remedial scheme—even if

the relief available under that scheme is not precisely

the same. E.g., Schweicker v. Chilicky, 487 U.S. 412,

425 (1988); Bush v. Lucas, 462 U.S. 367, 385-86

(1983); see also Hui v. Castaneda, 559 U.S. 799, 808

(2010).

The Court consistently has reaffirmed, however—

even when disallowing a damages claim under

Bivens—that claims for equitable relief remain fully

available. Malesko, 534 U.S. at 74; United States v.

Stanley, 483 U.S. 669, 682-83 (1987); see also, e.g.,

Green, 446 U.S. at 39 (Rehnquist, J., dissenting).

Such claims exist and retain their vitality as a matter

of constitutional structure and necessity. See

Stanley, 483 U.S. at 683 (claims for equitable relief

“{do} not ask the Court to imply a new cause of

action”) (quoting Chappell v. Wallace, 462 U.S. 296,

305 n.2 (1983)). While Congress may by statute

prescribe procedures for the adjudication and review

of constitutional claims, see, e.g., Swift, 382 U.S. at

114-15 (three-judge panels), and justiciability

doctrines may independently restrict their avail-

ability in particular circumstances, see, e.g., Baker v.

Carr, 369 U.S. 186, 217 (1962), prospective equitable

17

relief is “presumed availabfle] ... against threatened

invasions of constitutional interests.” Bivens, 403

U.S. at 404 (Harlan, J., concurring).

b. Cases outside the Bivens context likewise

recognize “direct” constitutional claims seeking

equitable relief for violations of the Constitution.

Malesko, 534 U.S. at 74. Contrary to petitioners’

argument, these claims have been approved not only

for constitutional provisions that represent an

affirmative “source of ... federal rights,” Petrs. Br. 37,

but also those—like the Supremacy Clause—that

define the structural relationship between the state

and federal governments.

In fact, there are numerous cases in which this

Court has addressed claims arising directly under

“structural” provisions of the Constitution. These

include, among others, claims under the Qualifi-

cations and Compact Clauses, e.g., U.S. Steel Corp. v.

Multistate Tax Comm'n, 434 U.S. 452, 458 (1978);

Powell vy. McCormack, 395 U.S. 486 (1969), as well as

under more abstract constitutional principles such as

separation of powers, e.g., Youngstown Sheet & Tube

Co. v. Sawyer, 343 U.S. 579, 635 (1952). These cases

confirm that “structural” provisions of the

Constitution, no less than “rights-creating” ones, are

enforceable through direct actions in federal courts.

8 See also, e.g., Hodel v. Irving, 481 U.S. 704 (1987) (Takings

Clause); S.-Cent. Timber, 467 U.S. 82 (Dormant Commerce

Clause); Allied Structural Steel Co. v. Spannaus, 438 U.S. 234

(1978) (Contracts Clause); Foster-Fountain Packing Co. v.

Haydel, 278 U.S. 1 (1928) (Dormant Commerce Clause);

Fallbrook Irrigation Dist. v. Bradley, 164 U.S. 112 (1896)

(Takings Clause); Davis v. Gray, 83 U.S. (16 Wall.) 203 (1873)

(Contracta Clause).

18

This principle was strongly reaffirmed in a pair of

this Court’s recent decisions. In Free Enterprise

Fund vy. Public Co. Accounting Oversight Board, 561

U.S. 477 (2010), the Court expressly upheld “an

implied private right of action directly under the

Constitution to challenge governmental action under

the Appointments Clause or separation-of-powers

principles.” Jd. at 491 n.2. It noted that a right to

equitable relief for a constitutional violation “has long

been recognized” and “[exists] as a general matter,

without regard to the particular constitutional

provisions at issue.” Jd. (quoting Malesko, 534 U.S.

at 74).

In Bond v. United States, 131 S. Ct. 2355 (2011),

this Court similarly held that “structural” con-

stitutional provisions like the Tenth Amendment—

which do not confer individual “rights” but rather

define the relationship between federal and state

governments—are nevertheless intended to

“protect[] the liberty of... persons” and for that

reason may be asserted by an individual in a

challenge to government action. Jd. at 2364-65. In

language particularly relevant here, the Court

explained that, “[jJust as it is appropriate for an

individual, in a proper case, to invoke separation-of-

powers or check-and-balances constraints, so too may

a litigant, in a proper case, challenge a law as

enacted in contravention of constitutional principles

of federalism.” Id.

These opinions reject the distinction that

petitioners would draw between rights-creating and

structural provisions of the Constitution. Petrs. Br.

17-19. On the contrary, they properly recognize that

the Constitution’s structural provisions fundamental

purpose is to protect individual liberties. Bond, 131

S. Ct. at 2363-64. That is equally true of the

19

Supremacy Clause. The Court's decisions also

explicitly recognize that negative restrictions on

governmental power, like the Supremacy Clause, can

support a challenge against government action and a

claim for prospective equitable relief to abate an

ongoing constitutional violation. Free Enter., 561

U.S. at 491 n.2. Im arguing that the Supremacy

Clause “should be treated differently than every

other constitutional claim,” petitioners—like the

parties in Free Enterprise and Bond—“‘offer[] no

reason and cite[ ] no authority why that might be 80.”

Id. That is because no reason exists.

2. The Analysis Applied In Statutory

Right Of Action Cases Does Not Apply

To Constitutional Claims.

“Rights-creating” language is not a prerequisite to

claims asserted directly under the Constitution,

including preemption claims under the Supremacy

Clause. That requirement is applied to claims under

42 U.S.C. § 1983, see Gonzaga, 536 U.S. at 282, and

claims implied under federal statutes, see Sandoval,

532 U.S. at 286, but it has never been—and, contrary

to petitioners’ argument, Petrs. Br. 18-19, cannot

be—applied to constitutional claims.

a. The remedy provided by § 1983 has, since its

enactment, been understood to supplement and

complement—but not to supplant—equitable relief

already available through a claim under the

Constitution _ itself. E.g., Section 1982 and

Federalism, 90 Harv. L. Rev. 1133, 1154, 1170 (1977);

see also Monroe v. Pape, 365 U.S. 167, 173 (1961).

Throughout the debates on the bill that would

become § 1983, legislators explained that the statute

would offer “further redress for violations ... of

constitutional rights” and an “additional” remedy for

individuals injured thereby. Cong. Globe, 42d Cong.,

20

lst Sess. app. 315, 460 (1871) (emphasis added); see,

e.g., id. at 374, 429, 653. There is no evidence that

Congress intended § 1983 to limit or disturb the

traditional scope of preemption claims under the

Supremacy Clause. To the contrary, supporters and

opponents of the bill recognized the historical

propriety of claims seeking prospective injunctive

relief for constitutional violations, including actions

to void unconstitutional state laws. E.g., id. at app.

259 (‘[T]he remedy [for a State’s violation of the

Constitution is that t]he Federal courts ... declare| |

the statute null and void.”); see also, e.g., id. at app.

83, app. 221, app. 259, app. 315, 429.

This distinction finds further support in the fact

that § 1983 was deemed necessary precisely because

it addressed a different class of harms—injuries to

federally conferred “rights”—than those remedied by

a claim for injunctive relief under the “negative

limitations” of the Constitution. Jd. at app. 83. As

one of the bill’s sponsors explained:

[Constitutional] prohibitions upon the political

powers of the States are all of such nature that

they can be... enforced by the courts of the

United States declaring void all State acts of

encroachment on Federal powers. Thus, and

thus sufficiently, has the United States

“enforced” those provisions of the Constitution.

But there are some that are not of this class.

These are where the court secures the rights or

the liabilities of persone within the States, as

between such persons and the States.... [T]hese

[are] the only provisions where it was deemed

that legislation was required to enforce the[m] ....

Id. at app. 69; see also id. at app. 70. Prospective

equitable relief often is not an effective remedy for a

completed infringement of an individual's personal

21

“rights,” and for that reason a damages remedy was

provided in § 1983, both to compensate the individual

and to deter future violations.? E.g., id. at app. 50.

This rationale has been understood to justify

limiting claims under § 1983 (and analogous claims

under Bivens) to deprivations of federally conferred

“rights,” Gonzaga, 536 U.S. at 285-90, but it has no

application to direct constitutional claims for

prospective equitable relief. Whereas § 1983 by its

terms protects only “rights” guaranteed to individuals

under federal law, id., the Supremacy Clause

declares broadly that “any Thing in the Constitution

or Laws of any State” contrary to the “Constitution ]

and the Laws of the United States” shall be invalid,

without regard to whether the provisions at issue

confer “rights.” U.S. Const., art. VI, cl. 2; see Golden

State, 493 U.S. at 117 (Kennedy, J., dissenting) (“Pre-

emption [does not] concern[{] ... the securing of

rights, privileges, and immunities to individuals.”).

To be sure, as the United States points out, some

preemption claims might also be brought under

§ 1983 because they implicate a particular “right”

guaranteed by federal law. U.S. Br. 28-29. But the

availability of that particular avenue of relief is no

reason to hold that § 1983 displaces constitutional

® The three statements cited by petitioners’ amicus, far from

showing that the framers of § 1983 “believed that ita equitable

remedies were new,” Br. of Nat'l Gov. Ase’n 33, establish only

that they believed that equitable remedies, in addition to

monetary damages, could and should be provided under § 1983

to protect against a violation of federally guaranteed “rights.”

See Cong. Globe, 42d Cong., lst Sess. at 601 (noting that

Congress has authority to enact § 1983, to provide “an original

action in our Federal courts [for an] injunction [or] recovery of

damages”); see also id. at 577 (referring to need to protect

federally guaranteed “rights”); id. at 376 (same).

22

preemption claims, any more than it displaces the

myriad other constitutional claims that “ha[ve] long

been recognized” to coexist with § 1983 (and Bivens)

claims.'° Malesko, 534 U.S. at 74. And, contrary to

the United States’ assertion, U.S. Br. 28-29, not all

constitutional preemption claims could simply be

restyled as § 1983 claims, or vice versa. See, e.g.,

Golden State, 493 U.S. at 107-08; Loyal Tire & Auto

Ctr., Inc. v. Town of Woodbury, 445 F.3d 136, 149 (2d

Cir. 2006). There is no basis to restrict preemption

claims under the Supremacy Clause to those based on

a “rights-creating” statute.

b. Much the same can be said for petitioners’

argument that constitutional preemption claims

should be allowed only when authorized by the

underlying federal statute, under the rationale of

implied rights of action cases like Sandoval. Petrs.

Br. 18-35. Because the claims at issue in those cases

were brought directly under statutes, the scope and

availability of any cause of action depended on the

statute itself E.g., Sandoval, 532 U.S. at 286.

Claims under the Supremacy Clause, by contrast, are

brought under the Constitution and exist as a

necessary incident of the Constitution’s structure.

See, e.g., Free Enter., 561 U.S. at 491 n.2; see also

Malesko, 534 U.S. at 74.

Petitioners’ position rests on the flawed premise

that a preemption claim seeks to “enforce” a federal

statute. E.g., Petrs. Br. 24-27; U.S. Br. 30. Although

10 The statement in Maine v. Thiboutot, 448 U.S. 1 (1980),

that when a statute provides no private right of enforcement

§ 1983 represents the “exclusive statutory cause of action,” id. at

6, does not on ita face suggest that § 1983 is the exclusive

vehicle for non-statutory claims, contra Petrs. Br. 24-25; U.S. Br.

25-26, and Thiboutot never has been read to support

displacement of constitutional claims for equitable relief.

23

a preemption claim commonly relies for its substance

on the scope of a federal statute—to determine, for

instance, whether the challenged state legislation

impermissibly conflicts with federal law, see

Medtronic, Inc. v. Lohr, 518 U.S. 470, 485-86 (1996)—

it does not seek to “enforce” the statute, as would a

claim asserting an implied statutory right of action,

Sandoval, 532 U.S. at 286. Rather, what is

“enforced” in a preemption claim is the structural

constitutional principle of supremacy, as declared in

the Supremacy Clause. E.g., Douglas v. Seacoast

Prods., Inc., 431 U.S. 265, 271-72 (1977) (preemption

is “basically constitutional in nature, deriving its

force from the operation of the Supremacy Clause”);

see also Caleb Nelson, Preemption, 86 Va. L. Rev.

225, 234 (2000).

It is therefore no answer to contend, as petitioners

do, that the equitable relief sought here is

unavailable because “equity follows the law.” Petrs.

Br. 47 (quoting Douglas, 132 S. Ct. at 1213 (Roberts,

C.J., dissenting)). The “law” to be enforced in this

case is not the statute, but the Constitution itself.

See, e.g., PLIVA, 131 S. Ct. at 2579-80 (Thomas, J.);

cf. U.S. Br. 10 (“The question in this case ... does not

concern the States’ substantive [statutory]

obligations .. ”). Because it is the Constitution that

supports a right of action for these claims, the

availability of that right does not depend upon

whether the underlying statute might also provide

one.

Moreover, reaffirming the longstanding rule that

preemption claims may be brought directly under the

Constitution will not undermine congressional

expectations regarding the operation of federal law,

as petitioners suggest. Petrs. Br. 27-35. This is for

the simple reason that courts uniformly have

24

recognized the availability of claims under the

Supremacy Clause for two centuries. See supra notes

4-5. Congress is presumed to legislate against the

settled backdrop of this existing law, see, e.g., Am.

Nat Red Cross v. S.G., 505 U.S. 247, 252, 260 (1992),

and respondents merely ask this Court to confirm

what is already “well-established.” Hart & Wechsler,

supra, at 903. In contrast, it is petitioners who ask

this Court to eliminate an avenue for relief that

Congress must have understood was available when

it chose not to provide an additional statutory

remedy.

For much the same reason, petitioners are

unfounded in their concern that courts, by continuing

to recognize the preemption right of action,

improperly will arrogate to themselves decision-

making authority from the expert agencies. Petrs.

Br. 27-31. Reaffirming a long-extant right of action

works no change on the agencies, which remain free

to exercise the discretion delegated to them

regardless how the courts interpret ambiguous

federal statutes. See Natl Cable & Telecomms. Ass’n

v. Brand X Internet Servs., 545 U.S. 967, 983-84

(2005); see also Douglas, 132 S. Ct. at 1210-11. In all

events, justiciability doctrines properly will limit the

scope of potential plaintiffs able to bring these

challenges.!!

‘1 For example, political questions will be dismissed as non-

justiciable, e.g., Baker, 369 U.S. at 217, and plaintiffs suffering

no injury-in-fact from the challenged government action will

lack standing under Article ITI, e.g., Raines v. Byrd, 521 U.S.

811, 821-26 (1997).

25

Il. THE SUPREMACY CLAUSE SUPPORTS

PREEMPTION CLAIMS BASED ON

FEDERAL STATUTES ENACTED UNDER

THE SPENDING CLAUSE.

Petitioners and the United States argue in the

alternative that, even if preemption claims generally

are available under the Supremacy Clause, they

should be precluded when the underlying federal

statute was enacted to reimburse States’ spending

under authority of the Spending Clause. Petrs. Br.

49-54; U.S. Br. 21-23. That rule finds no support in

this Court’s decisions, and is at odds with the

constitutional principle of supremacy.

A. A Preemption Claim Cannot Be Limited

Based On The Constitutional Authority

Under Which The Federal Statute Was

Enacted.

The Supremacy Clause declares simply that “[t}his

Constitution, and the Laws of the United States

which shall be made in Pursuance thereof,” shall be

“the supreme Law of the Land.” U.S. Const. art. VI,

cl. 2. It does not distinguish between federal statutes

based on which constitutional provision authorized

Congress to act, and this distinction has never played

a role in preemption analysis. See, e.g., Crosby, 530

U.S. at 372; see also PLIVA, 131-S. Ct. at 2579-80

(Thomas, J.). It thus would do violence to the

Constitution’s text to import this limitation into the

capacious language the Framers adopted. Nor is this

distinction relevant to whether a preemption claim is

available. Such a claim seeks not to “enforce” the

underlying statute, but to vindicate the federal

structural interest in supremacy. See Golden State,

493 U.S. at 119 (Kennedy, J., dissenting); Bond, 131

S. Ct. at 2365. That constitutional interest is

enforceable in the federal judiciary regardless of the

26

particular authority under which Congress acted, or

intended to act.

To be sure, “the purpose of Congress is the ultimate

touchstone in every pre-emption case.” Wyeth v.

Levine, 555 U.S. 555, 565 (2009). But this inquiry

into congressional intent, to determine “the scope of

the statute’s pre-empti[ve effect],” Medtronic, 518

U.S. at 485-86, goes to the merits of the preemption

question, not to the antecedent question of whether a

cause of action is available to enjoin the operation of

preempted state law. See, e.g., Verizon Md., 535 U.S.

at 642-43 (addressing merits of preemption claim

without expressly resolving validity of the cause of

action). This Court never has held that a state law

may operate in contravention of a valid federal

statute because of the particular power under which

Congress proceeded. To the contrary, so long as the

federal statute is constitutional and applicable, and is

contrary to the state law, the state law is invalid,

Crosby, 530 U.S. at 372, and a preemption cause of

action should be available.

Federal statutes enacted pursuant to Congress's

Article I spending power are no exception. It is well-

established that Congress “may fix the terms on

which it shall disburse federal money to the States,”

Pennhurst State Sch. & Hosp. v. Halderman, 451

U.S. 1, 17 (1981), and once a State accepts federal

money subject to such conditions, a state. law

contravening those conditions “runs afoul of the

Supremacy Clause.” Lawrence Cnty., 469 U.S. at 270;

see Bacon, 457 U.S. at 145-46 (“Because [the state

rules] conflict with a valid federal regulation, they

are invalid under the Supremacy Clause.”).!2. The

12 See also Ahlborn, 547 U.S. at 292; Bennett v. Arkansas, 485

U.S. 395, 397 (1988) (per curiam); Townsend v. Swank, 404 U.S.

282, 285 (1971); King v. Smith, 392 U.S. 309, 333 (1968).

27

only difference between a federal statute enacted

under the Spending Clause and one enacted under

another constitutional provision, such as_ the

Necessary and Proper Clause, is that e Spending

Clause statute is constitutionally applicable to a

State only insofar as the State satisfies the condition

precedent of accepting federal funding.

It is therefore unsurprising that, in PhRMA, seven

Justices agreed that a plaintiff may bring a

preemption claim to challenge a state law as invalid

under the Medicaid Act. While these Justices

differed over whether preemption had been

established on the merits, they agreed on the

threshold issue that the claim was available. 538

U.S. at 662 (plurality); id. at 671 (Breyer, J.,

concurring); id. at 687 (O’Connor, J., dissenting). The

United States suggests that PRARMA arose in a

different context because the plaintiffs there sought

to invalidate a regulation affecting their “primary

conduct,” U.S. Br. 32 n.12. But it is immaterial

under the Supremacy Clause whether state

legislation regulates “conduct” or limits “benefits.” If

the challenged legislation contravenes federal law, it

is invalid. See, eg., Bacon, 457 U.S. at 145-46

(holding state law excluding individuals from benefits

of federal-state program, in violation of program

conditions, “invalid under the Supremacy Clause”).

Likewise, a rule limiting constitutional preemption

claims to only those circumstances in which the

plaintiffs assert them as anticipatory defenses to

state enforcement actions, U.S. Br. 20, would run

counter to many of this Court’s decisions. See, e.g.,

Osborn, 22 U.S. at 838 (entering injunction to provide

restitution); Rowe, 552 U.S. at 371-73 (enjoining

enforcement of regulation that directly targeted

retailers rather than plaintiff motor carriers); Engine

28

Mfrs. Ass'n v. S. Coast Air Quality Mgmt. Dist., 541

U.S. 246, 255 (2004) (enjoining enforcement of

regulation that directly targeted car buyers rather

than plaintiff manufacturers); Am. Trucking, 133 S.

Ct. at 2104 (enjoining enforcement of regulation with

sanctions enforceable against terminal operators

rather than plaintiff trucking companies). Moreover,

it would undermine the fundamental purpose of the

Supremacy Clause, by enabling States to violate

federal law with impunity, so long as_ they

implemented them through artful or self-executing

mechanisms.

B. The Structure Of Spending Clause

Legislation Does Not Preclude A

Preemption Claim.

Nor can statutes enacted pursuant to Spending

Clause authority be treated differently merely

because they are “conditional,” and based on a State's

continued participation in the federal program. See

Petrs. Br. 49-54; see also U.S. Br. 21-23.

1. Petitioners argue that a State’s ability to stop

accepting federal money—and thereby escape the

reach of conditions imposed by a Spending Clause

statute—precludes an action under the Supremacy

Clause by parties injured as a result of the State’s

noncompliance. But, although this Court has

analogized federal-state programs such as Medicaid

to a “contract” between sovereigns, Pennhurst, 451

U.S. at 17, that analogy has not been used to limit

the federal statutes’ preemptive reach, e.g., Bennett v.

Ky. Dep't of Educ., 470 U.S. 656, 669 (1985). Indeed,

this Court has specifically counseled against

extending the analogy in that way. E.g., Barnes v.

Gorman, 536 U.S. 181, 186 (2002) (“[Wle have been

careful not to imply that all contract-law rules apply

29

to Spending Clause legislation.”). Petitioners’

argument on this score fails for several reasons.

First, this Court has consistently maintained the

propriety of injunctions that compel a State's

compliance with federal funding conditions, so long as

the State remains subject to those conditions. See,

e.g., King v. Smith, 392 U.S. 309, 333 (1968); Rosado

v. Wyman, 397 U.S. 397, 420-21 (1970); cf. Pennhurst,

451 U.S. at 30 n.23 (noting that the Court “would

have little difficulty” upholding an injunction that

forced the State to choose between “rejecting federal

funds ... or complying with” the conditions placed

upon those funds). A State has no right to accept

federal funding while claiming immunity from the

federal obligations attached to those funds. £.g.,

King, 392 U.S. at 333. If it finds those conditions

unduly burdensome, it may discontinue accepting the

funds to which the burden is attached. See Rosado,

397 U.S. at 420-21 (explaining that an injunction

leaves a State with the “alternative choices of

assuming the additional cost of [complying with the

federal condition] or not using federal funds”).

For this reason, state entities—like petitioners

here—have less rather than more reason to complain

about a cause of action seeking to hold them to

compliance with the federal statute. If the State

wishes to avoid the consequences of acting in a

fashion inconsistent with federal law, including an

action under the Supremacy Clause, it at all times

carries an immunity simply by rejecting further

funding and thereby avoiding future preemption.

Second, there is no basis for allowing only

“intended” “third-party beneficiaries” of the statute to

bring a preemption claim when a State violates that

statute. U.S. Br. 22-23. Although contract law

generally allows a third party to “enforce [a] contract”

30

only when it was “made for his benefit,” 9 John E.

Murray, Jr., Corbin on Contracts § 44.1, at 45 (rev.

ed. 2007), that principle—even if it were properly

applied by analogy in this context—would affect only

actions brought under the quasi-contractual statute

itself. It would not affect preemption actions brought

under the Supremacy Clause, seeking not to “enforce”

the statute, but to prevent injury caused by operation

of a constitutionally invalid state law.

If anything, the analogy to contract law supports

the availability of preemption claims based on

Spending Clause enactments. Contracting parties

operate against a backdrop of default legal rules that

govern the interpretation of their agreement. See,

e.g., Restatement (Second) of Contracts § 5(2) & cmt.

b (1981). When a State accepts federal funding and

agrees to be bound by certain conditions, the terms of

the relevant “contract” include the constitutional

provisions that structure relations between the

federal and state governments—including the

Supremacy Clause. And, because the Supremacy

Clause has for two centuries been treated as

providing a cause of action for individuals aggrieved

by a preempted state law, supra Part I.B, a State that

accepts funding under a federal statutory program

undeniably does so recognizing that a cause of action

under the Supremacy Clause will be available to

enjoin state action that violates the federal law.

2. A preemption claim under the Supremacy

Clause is no less available when, as here, the State’s

13 For this reason, the decision in Astra USA, Inc. v. Santa

Clara County, 131 S. Ct. 1342 (2011), is inapposite. There, the

plaintiffs sought to enforce the terms of the statute itself, as

embodied in a form contract through which the statute was

implemented. Jd. at 1345. Here, the claims at issue arise under

the Constitution.

31

noncompliance with federal law might also trigger a

withdrawal of funding by the federal government.

Whatever authority Congress might have to displace

particular constitutional remedies for certain

constitutional violations, this Court never has held

that an administrative funding-withdrawal mechan-

ism, without more, is sufficient to demonstrate

congressional intent to displace a right of action

under the Constitution. To the contrary, this Court

repeatedly has held that the possibility of federal

funding withdrawal does not preclude judicial relief

for parties injured by non-complying States. See, e.g.,

Rosado, 397 U.S. at 420 (“We have considered and

rejected the argument that a federal court is without

power to... prohibit the use of federal funds by the

States in view of the fact that Congress has

[delegated] the power to cut off federal funds for

noncompliance with statutory requirements.”); see

also Ark. Dep't of Health & Human Servs. v. Ahiborn,

547 U.S. 268, 272 (2006) (state law “contravened

federal [Medicaid provision] and was therefore

unenforceable”). '4

These cases confirm that the possibility of funding

withdrawal does not substitute for, and cannot

14 These decisions are consistent with this Court's approach to

claims under § 1983, which are not displaced by funding-

withdrawal provisions. See, e.g., Wilder v. Va. Hosp. Ass’n, 496

U.S. 498, 622 (1990); Wright v. City of Roanoke Redevelopment

& Hous. Auth., 479 U.S. 418, 428 (1987). Similarly, the

possibility of administrative funding withdrawal, without more,

is insufficient to override evidence that Congress intended to

provide a private right of action under a statute. See Cannon,

441 U.S. at 704-06. In this latter category of cases, of course,

the relevant inquiry is not whether Congress intended to

preclude an action otherwise available, but whether it intended

to create a right of action in the first instance. See, e.g.,

Sandoval, 532 U.S. at 286.

32

displace, a constitutional preemption claim. Whereas

a preemption claim seeks to declare a state law void,

the withdrawal of funding effectively accomplishes

the opposite, eliminating the applicability of federal

requirements. See Rosado, 397 U.S. at 420. And,

although the threat of funding withdrawal may be a

useful tool in inducing compliance, its actual

implementation ultimately harms, rather than helps,

those who would bring a preemption cause of action

under the Supremacy Clause—the individuals who

depend upon or otherwise benefit from federal

regulatory programs. Cf. Cannon, 441 U.S. at 704-06

(explaining that funding withdrawal is a “severe” tool

that “often may not provide an appropriate means” of

addressing “isolated violation[s}”).

More fundamentally, petitioners’ argument that the

mere possibility of funding withdrawal might displace

a preemption claim reflects a_ critical

misunderstanding of the Supremacy Clause. That

Clause renders void state law that is inconsistent

with any currently applicable federal statute,

whether or not that inconsistency might at some later

date be resolved. This Court recently recognized

precisely this point, refusing to uphold a preempted

state law based on “conjectures” regarding

“hypothetical federal action{s}” that might later

validate that law. PLIVA, 131 S. Ct. at 2579 & n.6.

Likewise here, although there is always a possibility

that a withdrawal of federal funding may render the

federal statute inapplicable, that imagined possibility

cannot validate state laws that currently conflict with

a federal statute. Nor can they preclude a right of

action to challenge those laws as void under the

Supremacy Clause.

33

CONCLUSION

For the foregoing reasons, the judgment of the court

of appeals should be affirmed.

Respectfully submitted,

KATE COMERFORD TODD CARTER G. PHILLIPS*

TYLER R. GREEN PETER D. KEISLER

U.S. CHAMBER QUIN M. SORENSON

LITIGATION CENTER, INC. LOWELL J. SCHILLER

1615 H Street, N.W. SIDLEY AUSTIN LLP

Washington, D.C. 20062 1501 K Street, N.W.

Washington, D.C. 20005

(202) 736-8000

cphillips@sidley.com

Counsel for Amicus Curiae

December 24, 2014 * Counsel of Record