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

Supreme Court. U.S.

FILED

NOV 24 20%4

OFFICE OF THE CLERK

RECORD

AND

No. 14-15

Jn the Supreme Court of the Anited

RICHARD ARMSTRONG AND LISA HETTINGER,

PETITIONERS

Vv.

EXCEPTIONAL CHILD CENTER, INC., ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF Or TEXAS, ALABAMA, ALASKA, ARIZONA,

COLORADO, DELAWARE, FLORIDA, GEORGIA,

HAWAII, INDIANA, KANSAS, MARYLAND, MICHIGAN,

MISSISSIPPI, NEBRASKA, NEW HAMPSHIRE,

NORTH DAKOTA, OHIO, OKLAHOMA, OREGON,

PENNSYLVANIA, SOUTH CAROLINA, SOUTH DAKOTA,

TENNESSEE, UTAH, WISCONSIN, AND WYOMING

AS AMICI CURIAE IN SUPPORT OF PETITIONERS

GREG ABBOTT JONATHAN F. MITCHELL

Attorney General of Texas Solicitor General

DANIEL T. HODGE Counsel of &

First Assistant OFFICE OF THE

Attorney Genera! ATTORNEY GENERAL

P.O. Box 12548 (MC 059)

Austin, Texas 78711-2548

jonathan.mitchel@

texasattorneygeneral.gov

(512) 936-1700

Counsel for Amici Curiae

[Additional Counsel Listed

On Inside Cover] aici

(RG eh a uth a nl A aa lateral ch ass SPiN :

han Listy

LUTHER STRANGE

Attorney General of Alabama

MICHAEL C. GERAGHTY

Attorney General of Alaska

THOMAS C. HORNE

Attorney General of Arizona

JOHN SUTHERS

Attorney General of Colorado

JOSEPH R. BIDEN III

Attorney General of Delaware

PAMELA JO BONDI

Attorney General of Florida

SAM OLENS

Attorney General of Georgia

DAVID M. LOUIE

Attorney General of Hawaii

GREGORY F. ZOELLER

Attorney General of Indiana

DEREK SCHMIDT

Attorney General of Kansas

DOUGLAS F. GANSLER

Attorney General of Maryland

BILL SCHUETTE

Attorney General of Michigan

JIM HOOD

Attorney General of Mississippi

JON BRUNING

Attorney General of Nebraska

JOSEPH A. FOSTER

Attorney General of New Hampshire

WAYNE STENEHJEM

Attorney General of North Dakota

MICHAEL DEWINE

Attorney General of Ohio

E. SCOTT PRUITT

Attorney General of Oklahoma

ELLEN F. ROSENBLUM

Attorney General of Oregon

KATHLEEN G. KANE

Attorney General of Pennsylvania

ALAN WILSON

Attorney General of South Carolina

MARTY J. JACKLEY

Attorney General of South Dakota

HERBERT H. SLATERY

Attorney General of Tennessee

SEAN REYES

Attorney General of Utah

J.B. VAN HOLLEN

Attorney General of Wisconsin

PETER K. MICHAEL

Attorney General of Wyoming

QUESTION PRESENTED

Does the Supremacy Clause give Medicaid providers

a private right of action to enforce 42 U.S.C.

§ 1396a(a)(30)(A) against a State when Congress chose

not to create enforceable rights under that statute?

(i)

TABLE OF CONTENTS

Re I sic siscssseseseirntitsiniectitnicininaiiciabatin i

ee I icersinceisuistsiocnsssssisininsiincninsiiinasaniatiinusiiabiiiants iv

EE ee a ee SE 1

Ee ee TE TT 2

I seeiecieccitisiitssinenseniiiaieiiceaieaeiciiitsaiaiasitinilitiiibiiaii 4

I. The Ninth Circuit erred by holding that the

Supremacy Clause authorizes private

litigants to sue state officials who violate

A. Nothing in the language of the

Supremacy Clause purports to authorize

private litigants to sue state officials for

violating federal law................ccsssscereesecsesessesenees 5

B. The Ninth Circuit’s interpretation of the

Supremacy Clause is irreconcilable with

this Court’s rulings in Alexander v.

C. The Ninth Circuit’s interpretation of the

Supremacy Clause disables Congress

from precluding the private enforcement

of federal statutes and treaties against

I caticisinicicrccinnciciensnineinitensiviaiiin ainsi 12

D. Ex Parte Young offers no support for

the Ninth Circuit’s holding .................0cs000e+ 14

(ii)

E. None of the arguzents offered by the

Ninth Circuit or the respondents in

Douglas are Persuasive ...........cccceccossesereesenseees

If. Even if the Supremacy Clause establishes a

“preemption” cause of action, the plaintiffs’

claims must be dismissed because 42 U.S.C.

§ 1896a(a)(30)(A) is incapable of preempting

Il.The doctrine of primary jurisdiction

required the lower courts to abstain and

refer this matter to CMS before enjoining

I ciceiciitninnictianentamnmicseniiseumnminnnies

COLLET LOC, TEE EIFS EN FE ET

(iii)

TABLE OF AUTHORITIES

Cases

Affiliates, Inc. v. Armstrong,

Nos. 1:09-cv-00149-BLW, 1:11-cv-00307-BLW,

2011 WL 3421407 (D. Idaho Aug. 4, 2011)................... 30

Alden v. Maine,

I i euiausenaiundt x

Alexander v. Sandoval,

I ala 2, 8, 9,14

Andrews v. Maher,

hE Lg eee 19-20

Blessing v. Freestone,

IRE ae ae ne eee eta PERSE 25

Brecht v. Abrahamson,

I 17, 26

Burgio & Campofelice v. N.Y. State Dep't of Labor,

ogg | | i _ , Sane 6, 16

California v. Sierra Club,

Re ee I iaicicitetiniiasianesinstcncsisctnicesinasiieniismsaiensnins 14

Cannon v. Univ. of Chi,

i 21

Chase Bank USA, N.A. v. City of Cleveland,

i |, Ye Xt _. . Sense 6, 16

Chisholm v. Georgia,

ee ee I, PI I vibciisnccnicsindcilicicnientttnceinlviion 7

(iv)

City of Burbank v. Lockheed Air Terminal, Inc.,

Se ee etiaiceciieenceineaiintentdeniniceticeniieteniiisesien 17

Dartmouth-Hitchcock Clinic v. Toumpas,

No. 11-cv-358-SM, 2012 WL 4482857 (D.N.H.

Re dissipate idaseenendnacteisei canter secanndianpennaens .29

District of Columbia v. Heller,

i onic scteicieannninnincinaannnntnieonabenienia 5

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

ee | ene 3, 4, 15, 28-29

Ex parte Bollman,

ries Ce IED FOP CIID crccccercicisiernsesncsnseccesenbtcusessesenseed 8

Ex parte Young,

Se I ri rseraiascacncreeatenieniadatbtasatinimtedanantiniie 14, 15

Golden State Transit Corp. v. Los Angeles,

IAT TITITEIT TTI csisccnicis.ancoeitcingiissamesnomnnibscesemuediaenddobateteentt 4

Gonzaga Univ. v. Doe,

I Ns OI saciid 4

Horne v. Flores,

i I ita isincinnaseandteebea neice 9, 10, 16

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

543 F.3d 1050 (9th Cir. 2008) ...............cccescoees .2, 5, 10, 16

JI. Case Co. v. Borak,

IT a ccalalenuiiealie 14

Legal Envtl. Assistance Found., Inc. v. Pegues,

Fe i Le | 19

Legal Servs. Corp. v. Velazquez,

gE | ___, RSE S EE ee LES 17, 26

Lewis v. Alexander,

eg fT ke een 6

Maine v. Thiboutot,

ia accent 10, 11, 19

Medellin v. Dretke,

I sschidseasonabedidbiaombpiadiochanaaeh 19

Medellin v. Texas,

I a a ciicemaltghomseltianl 12-13, 16

Middlesex Cnty Sewerage Auth. v. Nat'l Sea

Clammers Ass’n, 453 U.S. 1 (1981)........cccccccescceeeeeerees 25

Miller ex rel. v. Olszewski,

No. 09-13683, 2009 WL 5201792

Ns, SN, Ts I cnccsneininsoncossensisebonsnnamenngin 29-30

Minnesota v. Northern Securities Co.,

dai leeinneieenibinats 18

Nat Fed’n of Indep. Bus. v. Sebelius,

ee SECRETE DSTA mene omew ce 3, 24

New Orleans & Gulf Coast Railway Co. v. Barrois,

tg & fe R——__ RRERetreet ere .20

P.R. Tel. Co., Inc. v. Mun. of Guayanilla,

eo | i ee 5,6

Pharm. Research & Mfg. of Am v. Walsh,

Be i iis iiiseiethcndicsashicmeniihdbiteahctinebienatetons 17, 27

Planned Parenthood of Hous. and Se. Tex. v.

Sanchez, 403 F.3d 324 (5th Cir. 2005)................0. 2, 6, 24

Planned Parenthood of Ind., Inc. v. State Dep't of

Health, 699 F.3d 962, 983 (7th Cir. 2012)...............002. 15

(vi)

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

Moser, 747 F.3d 814 (10th Cir. 2014) 00... 5, 15

Ray v. Atl Richfield Co.,

Se Se I icctnsersibssevsnbtvibtspienoenstnmssmiiaiesnaiiasians 17

The Wilderness Society v. Kane Cty.,

ee Fae Be Ce Gr, BD crctictcnstcccsensnioncenencserecssevncs 5

Thompson v. Thompson,

Oe i I cin secsdeierstrieititieepenictincnehieniime hpsebciuns 18

United States v. South Carolina,

Be a Ce Gs CN crcintnientcincicnensnttencntmnseninimninal 6

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

RIEU bE nares 15

Wagner & Brown v. ANR Pipeline Co.,

Sy Oe SD IS BI coccnsecincitsenieenenscinneisnsstesnicsneninion 27

Waters v. Churchill,

G11 US. G61 (1906)... ..cecerovescnsosscvennnvssenscesvernscconccces 17, 26

Statutes

Re HT sis cs eantesiescenemeienaisbsatnmeaibenaeadinin 21

aT TTT ccs sccensncenstactgeiseneeoaentsahéaniniubanaadicoeianee 21

a as Se I iecinincensssssnsiiicismsadionpinnloneseicinicapissedinntanel 21

Be a IR ceccnsnrciptncncsineneniictisinmnilienia 3, 21, 22

Be i ie id es nccioeeetesiceetinscntesicttceotamnadeniiabanitaeaaaninia 18

Bs ae I iiccssivsnsissteontasccctniesssbemoninniatinipiniaieiied 19

ee radiate nsctinisiceptpnininstcensoiiinmicichipetaniceanpianiuin 22

AZ U.S.C. § 1396C .--o--ssnesennerenssennenrnnsnnenneneners 3, 22, 23, 24, 26

AD, U.S.C. § 1983 ....or-escveeenveeensesenssennsenssensnennee’ 2, 4, 10, 19, 26

42 U.S.C. § DOCC(A)(Z)(A) sacecenssernnesenseennnsnsnnennnnnennnncnnnste 21

AD, U.S.C. § 2OQO;-nnvvssesssssvsssssssssnsssessnnnnsnnnnennnnnnnnreneneeeseereee 21

U.S. Const. art. WI, Ch. Biccccovcnoveccsnconvevvnssnvenesnsensnnnnononenses 6, 12

Other Authorities

Br. for the Petitioners, Arkansas DHHS v.

Ahlborn, No. 04-1506, 2005 WL 3156905 (2005).......-: 25

Br. for the Petitioner, Delia v. E.M.A., No. 12-98,

9012 WL BSS2211 (2012) ......--eeerrereveeennnnnrersrrnnnrnrnes 25-26

132 S. Ct. 1204 (2012), (Nos. 09-958, 09-1158,

10-283), 2011 WL 3288334 .....cevsnvsnssnssserrerrrreersreerer 17

Oral Argument Transcript, Douglas, Douglas v.

Indep. Living Ctr. of S. Cal.,

132 S. Ct. 1204 (2012).......seeeeeeeerrsnnnnnsensssssssernnnesersenensnnen 13

John C. Harrison,

Ex parte Young, 60 Stan. L. Rev. 989 (2008)... 15

9 Richard J. Pierce, Jr., Administrative Law

Treatise § 14.4 (Ath ed. 2002) ...-.--vvv-seseeernnnerseserreeerneee 27

9° Restatement (Third) of Foreign Relations Law of

the United States § 907, Comment a (1986) ....-----+-000+ 13

(viii)

Cass R. Sunstein, Section 1983 and the Private

Enforcement of Federal Law, 49 U. Chi. L. Rev.

SELES a RED Eres ee aetna .29

1 Charles Warren, The Supreme Court in United

States History (rev. ed. 1926) ..........s.csccsercesessereescesenseees 8

13B Charles A. Wright, Arthur R. Miller, &

Edward H. Cooper, Federal Practice and .

SS I I os eaarettgungeesemnetenbene 15

(ix)

In the Supreme Court of the United States

No. 14-15

RICHARD ARMSTRONG AND LISA HETTINGER,

PETITIONERS

Vv.

EXCEPTIONAL CHILD CENTER, INC., ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF OF TEXAS, ALABAMA, ALASKA, ARIZONA,

COLORADO, DELAWARE, FLORIDA, GEORGIA,

HAWAII, INDIANA, KANSAS, MARYLAND, MICHIGAN,

MISSISSIPPI, NEBRASKA, NEW HAMPSHIRE,

NORTH DAKOTA, OHIO, OKLAHOMA, OREGON,

PENNSYLVANIA, SOUTH CAROLINA, SOUTH DAKOTA,

TENNESSEE, UTAH, WISCONSIN, AND WYOMING

As AMICI CURIAE IN SUPPORT OF PETITIONERS

INTEREST OF AMICI

Several courts of appeals have held that the Suprem-

acy Clause authorizes private lawsuits to enforce every

federal statute against state officials—even when Con-

gress has refused to provide a private right of action to

(1)

2

enforce that federal statute, and even when the statute

does not create federal “rights” enforceable under 42

U.S.C. § 1983. See, e.g., Indep. Living Ctr. of S. Cal. v.

Shewry, 543 F.3d 1050, 1058 (9th Cir. 2008); Planned

Parenthood of Hous. & Se. Tex. v. Sanchez, 403 F.3d

324, 333 (5th Cir. 2005). The amici curiae States have an

interest in this case because they have been subjected to

unwarranted lawsuits on account of this misguided in-

terpretation of the Supremacy Clause.

SUMMARY OF ARGUMENT

The Ninth Circuit’s “preemption” holding should be

reversed for three independent reasons.

First, the Ninth Circuit erred by interpreting the

Supremacy Clause to establish a constitutionally created

private right of action to sue state officials. The Ninth

Circuit’s holding allows any private plaintiff with Article

III standing to sue to enjoin any state law or regulation

alleged to conflict with any federal statute—even when

the federal statute fails to provide a private right of ac-

tion for its enforcement. That approach to the private-

right-of-action issue is incompatible with numerous deci-

sions of this Court, and represents a radical departure

from the notion that “private rights of action to enforce

federal law must be created by Congress.” Alexander v.

Sandoval, 532 U.S. 275, 286 (2001).

Second, even if the Ninth Circuit were correct to rec-

ognize an implied right of action in this case, its holding

should still be reversed because 42 U-S.C.

§ 1396a(a)(30)(A) is incapable of “preempting” state law.

See Pet. Br. 49-54. The Medicaid Act does nothing more

than establish criteria for federal reimbursement. It

3

does not obligate States to comply with the 42 U.S.C.

§ 1396a(a)(30)(A) once they accept federal Medicaid

funds, and it affirmatively permits States to establish

partially compliant Medicaid programs and risk a partial

reduction (or total elimination) of federal reimbursement

in the future. See 42 U.S.C. § 1896c; Natl Fed’n of Indep.

Bus. v. Sebelius, 132 S. Ct. 2566, 2607 (2012). The Medi-

caid Act is no different from the statute that promises to

reduce federal highway funding for States that fail to

maintain a 21-year-old drinking age. See 23 U.S.C.

§ 158(a)(1)(A). It is perfectly lawful for a State to depart

from 42 U.S.C. § 1396a(a)(30)(A) and risk a reduction or

cut-off of federal funds. The State may lose federal funds

on account of that choice, but its choice is not (and cannot

be) “preempted.”

Third, even if the Medicaid Act were capable of

preempting state law, and even if there were a cause of

action to bring “preemption” claims against state offi-

cials, the Court should still reverse the Ninth Circuit’s

preemption holding under the doctrine of primary juris-

diction. Rather than engage in its own de novo interpre-

tation of 42 U.S.C. § 1896a(a)(30)(A), which is rife with

vague and ambiguous language, the Ninth Circuit should

have abstained and waited for the Centers for Medicare

& Medicaid Services (CMS) to opine on the legality of

the State’s policy. Cf Douglas v. Indep. Living Ctr. of S.

Cal., 132 S. Ct. 1204, 1210 (2012) (holding that CMS’s in-

terpretations of the Medicaid Act “carr[y] weight”).

4

ARGUMENT

I. THE NINTH CIRCUIT ERRED BY HOLDING

THAT THE SUPREMACY CLAUSE

AUTHORIZES PRIVATE LITIGANTS TO

SUE STATE OFFICIALS WHO VIOLATE

FEDERAL LAW

The Ninth Circuit’s understanding of the Supremacy

Clause is untenable for many reasons—not least of which

is that it renders 42 U.S.C. § 1983 superfluous and allows

private litigants to make an end-run around the decisions

from this Court that purport to limit state-official liabil-

ity. See Douglas, 132 S. Ct. at 1213 (Roberts, C.J., dis-

senting) (“[T]o say that there is a federal statutory right

enforceable under the Supremacy Clause, when there is

no such right under the pertinent statute itself, would

effect a complete end-run around this Court’s implied

right of action and 42 U.S.C. § 1983 jurisprudence.”); see

also NGA Amicus Br. at 32-34. This Court has long held

that state officials may be sued under section 1983 only

when they violate federally protected rights—not when-

ever they violate some provision of federal law. See

Golden State Transit Corp. v. Los Angeles, 493 U.S. 103,

106 (1989) (“Section 1983 speaks in terms of ‘rights, priv-

ileges, or immunities,’ not violations of federal law.”); see

also Gonzaga Univ. v. Doe, 536 U. S. 273, 286 (2002)

(“(W]here the text and structure of a statute provide no

indication that Congress intends to create new individual

rights, there is no basis for a private suit, whether under

§1983 or under an implied right of action.”). Yet the

Ninth Circuit declared that officials who act under color

of state law may be sued for injunctive relief whenever

5

they violate any provision of federal law—so long as a

litigant can establish Article III standing. See Indep.

Living Ctr., 543 F.3d at 1058 (endorsing “the right of

private parties to seek injunctive relief under the Su-

premacy Clause regardless of whether the allegedly

preemptive statute confers any federal ‘right’ or cause of

action.”); Pet. App. 2-3. This means that Congress’s de-

cision to enact section 1983 was a meaningless gesture,

and that Congress’s decision to limit state-official liabil-

ity to violations of federally protected “rights” has no le-

gal effect.

All of this is well explained in Chief Justice Roberts’s

dissenting opinion in Douglas—and in other scholarly

opinions that reject the Ninth Circuit’s approach. See

Planned Parenthood of Kan. and Mid-Mo. v. Moser, 747

F.3d 814, 822-36 (10th Cir. 2014); The Wilderness Socie-

ty v. Kane Cty., 581 F.3d 1198, 1233-34 (10th Cir. 2009)

(McConnell, J., dissenting). Yet there are even more rea-

sons why the Ninth Circuit’s interpretation of the Su-

premacy Clause should be repudiated.

A. Nothing In The Language Of The

Supremacy Clause Purports To Authorize

Private Litigants To Sue State Officials

For Violating Federal Law

Any analysis of whether the Supremacy Clause au-

thorizes private lawsuits should begin with the text of

that constitutional provision. Cf District of Columbia v.

Heller, 554 U.S. 570, 576-600 (2008). Yet the Ninth Cir-

cuit’s opinion in Independent Living Center never deigns

to analyze the constitutional text that it purports to in-

terpret. Neither do the other federal appellate decisions

-,

6

that claim to have discovered a private right of action in

the Supremacy Clause. See, e.g., P.R. Tel. Co., Ine. v.

Mun. of Guayanilla, 450 F.3d 9, 15 (1st Cir. 2006); Bur-

gio & Campofelice, Inc. v. N.Y. State Dep't of Labor, 107

F.3d 1000, 1006 (2d Cir. 1997); Lewis v. Alexander, 685

F.3d 325, 345-46 (3d Cir. 2012); United States v. South

Carolina, 720 F.3d 518, 526 (4th Cir. 2013); Sanchez, 403

F.3d at 333; Chase Bank USA, N_A. v. City of Cleveland,

695 F.3d 548, 554 (6th Cir. 2012).

There is nothing in the language of the Supremacy

Clause that could possibly establish a private right of ac-

tion to sue state officials. The Supremacy Clause pro-

vides:

This Constitution, and the Laws of the United

States which shall be made in Pursuance

thereof; and all Treaties made, or which shall

be made, under the Authority of the United

States, shall be the supreme Law of the Land;

and the Judges in every State shall be bound

thereby, any Thing in the Constitution or Laws

of any State to the Contrary notwithstanding.

U.S. Const. art. VI, cl. 2.

This language merely provides a choice-of-law rule

directed to the “Judges in every State.” Those judges

must regard the Constitution, federal statutes, and trea-

ties as “supreme,” while subordinating all other forms of

law (such as state law, international law, and judicial

precedents) to the “supreme Law of the Land.” N othing

in the text of the Supremacy Clause purports to establish

subject-matter jurisdiction for federal courts to adjudi-

cate alleged conflicts between “supreme” and “non-

7

supreme” laws, and it assuredly does not provide a cause

of action authorizing private litigants to sue state officers

(or anyone else) who violate a provision of supreme fed-

eral law. The power of federal courts to adjudicate these

disputes, and the right of private litigants to bring these

claims, must come from some other source.

The Supremacy Clause says nothing about the crucial

issues that define this cause of action that the Ninth Cir-

cuit claims to have found in the Constitution. Who can be

sued under this cause of action? Anyone who violates a

federal law or treaty? Only state officials? The State it-

self? And what relief may be obtained from these alleged

federal lawbreakers? Money damages or only injunctive

relief? Would there be a right to jury trial?’ If the Su-

premacy Clause had been understood to authorize pri-

vate lawsuits by persons seeking to vindicate federal law,

one would expect the Supremacy Clause to say some-

thing about these questions. Its silence on these matters

indicates that it does not authorize lawsuits by private

citizens against state officials.

Indeed, it hard to imagine that the Constitution

would have been ratified if the Supremacy Clause had

been understood to establish a private right of action to

sue state officials. The swift response to Chisholm v.

Georgia, 2 U.S. (2 Dall.) 419 (1793), shows that the notion

of subjecting States to suit in federal court was unac-

! The Seventh Amendment secured the jury right only in cases at

common law; most cases alleging a violation of a federal statute by

state officials would fall outside the scope of the Amendment.

8

ceptable at the time of the founding,’ and a construction

of the Supremacy Clause that would permanently en-

trench a cause of action for private citizens to bring

“preemption” lawsuits against States or state officials

would likely have triggered an equally fierce reaction.

The extent to which individual citizens may sue state of-

ficials for violating federal statutes is an issue that the

Constitution leaves to congressional legislation; it is not

entrenched or resolved in the Constitution itself. See Al-

exander, 582 U.S. at 286 (“Like substantive federal law

itself, private rights of action to enforce federal law must

be created by Congress.”); Ez parte Bollman, 8 U.S. (4

Cranch) 75, 94 (1807) (“T]he power of taking cognizance

of any question between individuals, or between thé gov-

ernment and individuals ... must be given by written

law.”).

B. The Ninth Circuit’s Interpretation Of The

Supremacy Clause Is Irreconcilable With

This Court’s Rulings In Alexander vy.

Sandoval, Horne v. Flores, And Maine v.

Thibotout

The Ninth Circuit’s interpretation of the Supremacy

Clause contradicts no fewer than three decisions of this

Court.

The first is Alexander v. Sandoval, 582 U.S. 275

(2001), which explicitly and emphatically holds that pri-

* See Alden v. Maine, 527 U.S. 706, 719-24 (1999); 1 Charles War-

ren, The Supreme Court in United States History 91-102 (rev. ed.

1926).

9

vate rights of action to enforce federal statutes must be

created by Congress:

Like substantive federal law itself, private

rights of action to enforce federal law must be

created by Congress. The judicial task is to in-

terpret the statute Congress has passed to de-

termine whether it displays an intent to create

not just a private right but also a private rem-

edy. Statutory intent on this latter point is de-

terminative. Without it, 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.

Raising up causes of action where a statute has

not created them may be a proper function for

common-law courts, but not for federal tribu-

nals.

Alexander, 582 U.S. at 286-87 (emphases added) (cita-

tions and internal quotation marks omitted). The Ninth

Circuit’s decision defies Alexander by recognizing a pri-

vate right of action to enforce a federal statute that was

not “created by Congress.” Worse, the Ninth Circuit

turns Alexander on its head by authorizing private liti-’

gants to sue directly under the Supremacy Clause when-

ever Congress declines to create a cause of action to en-

force a federal statute—a regime diametrically opposed

to the holding of Alexander.

The second is Horne v. Flores, 557 U.S. 433 (2009).

Horne holds that there is no private cause of action to

advance a preemption claim under the No Child Left

10

Behind Act (NCLB), because Congress did not provide

for a cause of action to enforce that federal statute:

Whether or not HB 2064 violates § 7902, see

Brief for United States as Amicus Curiae 31-

32, and n. 8 (suggesting it does), neither court

below was empowered to decide the issue. As

the Court of Appeals itself recognized, NCLB

does not provide a private right of action. See

516 F.3¢, at 1175. “Without [statutory intent], 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.” Alexander v. Sandoval, 532

U.S. 275, 286-287 (2001).

Horne, 557 U.S. at 456 n.6 (emphasis added).

The Ninth Circuit’s interpretation of the Supremacy

Clause is incompatible with this discussion in Horne. Ac-

cording to the Ninth Circuit’s opinion in /ndependent

Living Center, any litigant should be allowed to bring an

NCLB “preemption” claim directly under the Constitu-

tion—regardless of whether the NCLB establishes a

cause of action—even though Horne declares that feder-

al courts are not “empowered to decide” these preemp-

tion claims. See id. And there is no possible basis on

which a court can distinguish “preemption” claims

brought under the NCLB from “preemption” claims

brought under the Medicaid Act; both statutes were en-

acted as spending legislation.

The third is Maine v. Thiboutot, 448 U.S. 1 (1980).

Thiboutot held that litigants may use 42 U.S.C. § 1983 to

enforce federal statutes (and not merely constitutional

11

provisions) that create individual “rights,” and defended

this conclusion by noting that previous cases had allowed

litigants to sue to enforce statutory provisions in the So-

cial Security Act (SSA). Writing for the Court, Justice

Brennan insisted that these earlier cases necessarily re-

lied on section 1983 because that was the only possible

source for a cause of action to enforce the SSA:

[Ojur analysis in several § 1983 cases involving

Social Security Act (SSA) claims has relied on

the availability of a § 1983 cause of action for

statutory claims. . In each of the following

eases § 1983 was necessarily the excl.sive

statutory cause of action because, as the Court

held in Edelman v. Jordan, 415 U.S. [651], at

673-674 [(1974)], id, at 690 (Marshall, J., dis-

senting), the SSA affords no private right of

action against a State.

Thiboutot, 448 U.S. at 5-6 (emphasis added). This pas-

sage makes clear that when the Social Security Act (or

any other federal statute) fails to authorize private law-

suits against state officials, the only basis on which a pri-

vate litigant may sue to enforce that statute is section

1983.

If the Ninth Circuit is correct, then Thiboutot is

wrong. The Ninth Circuit held that section 1983 is not

the exclusive cause of action for enforcing the SSA (even

though Thibotout says that it is) because on the Ninth

Circuit’s view private litigants may sue directly under

the Supremacy Clause regardless of whether section

1983 could authorize the suit. That means that Thiboutot

was wrong to state that previous lawsuits brought

12

against state officials for allegedly violating the SSA

necessarily relied on section 1983. Under the Ninth Cir-

cuit’s reasoning, those pre-Thibotout cases could have

relied on the Supremacy Clause to supply a cause of ac-

tion, which means they do not have any implications for

whether section 1983 is available to enforce statutory (as

opposed to constitutional) rights.

C. The Ninth Circuit’s Interpretation Of The

Supremacy Clause Disables Congress

From Precluding The Private

Enforcement Of Federal Statutes And

Treaties Against State Officials

The notion that the Supremacy Clause empowers

private litigants to bring “preemption” claims against

state officials who violate “supreme” federal law has rad-

ical and far-reaching implications. The Supremacy

Clause gives treaties the same “supreme” status as fed-

eral statutes. See U.S. Const. art. VI, cl. 2 (“This Consti-

tution, and the Laws of the United States which shall be

made in Pursuance thereof; and all Treaties made, or

which shall be made, under the Authority of the United

States, shall be the supreme Law of the Land ...”). So

under the Ninth Circuit’s reasoning, every treaty obliga-

tion that conflicts with state law should be enforceable

through private lawsuits brought directly under the Su-

premacy Clause. Even when a treaty is non-self-

executing or fails to provide a private right of action, a

litigant could rely on the Supremacy Clause to supply

the cause of action—just as the plaintiffs were permitted

to do here. That would require this Court to repudiate its

observation in Medellin v. Texas, 552 U.S. 491 (2008),

13

that “[e]ven when treaties are self-executing in the sense

that they create federal law, the background presump-

tion is that ‘[iJnternational agreements, even those di-

rectly benefiting private persons, generally do not create

private rights or provide for a private cause of action in

domestic courts.” Jd. at 506 n.3 (quoting 2 Restatement

(Third) of Foreign Relations Law of the United States

§ 907, Comment a, p. 395 (1986)).

The Ninth Circuit’s holding would also leave Con-

gress powerless to preclude “preemption” lawsuits

brought to enforce federal statutes, because the Su-

premacy Clause is part of the Constitution and cannot be

altered through ordinary legislation. At oral argument in

Douglas, counsel for the respondents acknowledged that

a statute explicitly prohibiting private rights of action to

enforce the Medicaid Act would be unable to prevent a

“preemption” lawsuit, because the cause of action is de-

rived directly from the Constitution and therefore im-

mune from congressional revision. See Oral Argument

Transcript at 34, Douglas, 132 S. Ct. 1204. Although

counsel later denied that this claim was “necessary” to

his position, see id. at 34-35, it logically follows from the

Ninth Circuit’s interpretation of the Supremacy Clause.

If a constitutional provision gives private litigants a right

to seek judicial redress against state laws that conflict

with federal statutes, then Congress is powerless to re-

voke or limit that constitutionally conferred right.

Once it is acknowledged that Congress may alter or

abolish the cause of action on which the plaintiffs rely,

then this case is no longer about the meaning of the Su-

premacy Clause, but about the meaning that should be

attributed to congressional silence. When a federal stat-

14

ute—such as the Medicaid Act—neither explicitly au-

thorizes nor explicitly precludes private lawsuits to en-

join conflicting state laws, should that statute be inter-

preted as permitting or foreclosing private lawsuits?

Although there once was a time when this Court

readily inferred private rights of actions from statutes

that were silent on the question, see, e.g., J.J. Case Co. v.

Borak, 377 U.S. 426 (1964), those days have long since

passed. The Court today insists on affirmative evidence

of “statutory intent” to authorize private lawsuits. See,

e.g., California v. Sierra Club, 451 U.S. 287, 297 (1981)

(“As recently emphasized, the focus of the inquiry is on

whether Congress intended to create a remedy. ... The

federal judiciary will not engraft a remedy on a statute,

no matter how salutary, that Congress did not intend to

provide.”); Alexander, 532 U.S. at 286-87. It makes no

sense to apply a general statutory presumption against

private rights of action, while simultaneously applying

the opposite statutory presumption when it comes to pri-

vate rights of action to enforce federal statutes against

state officials acting under color of a preempted state law

or policy.

D. Ex Parte Young Offers No Support For

The Ni.th Circuit’s Holding

Some courts and commentators have argued that Ex

parte Young, 209 U.S. 123 (1908), supports the Ninth

Circuit’s interpretation of the Supremacy Clause. But Fx

parte Young does not establish that private litigants may

sue to enjoin the enforcement of any state law that con-

flicts with a federal statute.

15

Ex parte Young allows litigants to bring preemptive

lawsuits to enjoin state enforcement proceedings against

them. This cause of action does not rest on the Suprema-

cy Clause but on principles of equity that allow potential

defendants at law to assert their defenses preemptively

by seeking the equitable remedy of an anti-suit injunc-

tion. See John C. Harrison, Ex parte Young, 60 Stan. L.

Rev. 989 (2008); NGA Amicus Br. at 26-30. Five mem-

bers of the Court have endorsed this understanding of

Ex parte Young—as have the Seventh and Tenth Cir-

cuits. See Va. Office for Prot. and Advocacy v. Stewart,

131 5S. Ct. 1682, 1642 (2011) (Kennedy, J., concurring)

(“[Ex parte Young’s] negative injunction was nothing

more than the pre-emptive assertion in equity of a de-

fense that would otherwise have been available in the

State’s enforcement proceedings at law.”); Douglas, 132

S. Ct. at 1213 (Roberts, C. J., dissenting) (endorsing Jus-

tice Kennedy’s explanation of Ex parte Young); Planned

Parenthood of Ind., Inc. v. State Dep't of Health, 699

F.3d 962, 983 (7th Cir. 2012) (same); Planned

Parenthood of Kan. and Mid-Mo., 747 F.3d at 829-30

(same).

This view of Ex parte Young is far more sound than

Professors Wright, Miller, and Cooper’s claim that Ex

parte Young authorizes private lawsuits for injunctive

relief whenever a state official is accused of violating any

provision of federal law. See 13B Charles A. Wright, Ar-

thur R. Miller, & Edward H. Cooper, Federal Practice

and Procedure § 3566, at 102 (1984) (“The best explana-

tion of Ex Parte Young and its progeny is that the Su-

premacy Clause creates an implied right of action for in-

junctive relief against state officers who are threatening

16

to violate the federal Constitution or laws.”); see also

Burgio & Campofelice, Inc., 107 F.3d at 1006 (relying on

Wright, Miller, and Cooper’s treatise to support an im-

plied right of action under the Supremacy Clause); Chase

Bank USA, N.A., 695 F.3d at 554 (same). If Professors

Wright, Miller and Cooper’s view of Ex parte Young

were correct, then Horne v. Flores should have permit-

ted the litigants in that case to challenge Arizona’s stat-

ute as “preempted” by the No Child Left Behind Act,

rather than declaring that the federal courts were not

“empowered to decide the issue.” 557 U.S. at 456 n.6; see

also supra at 9-10. And it hard to see how the Wright-

Miller-Cooper understanding of Ex parte Young can be

squared with Medellin’s holding that treaties “generally

do not create private rights or provide for a private

cause of action in domestic courts.” 552 U.S. at 506 n.3;

see also supra at 12-13.

E. None Of The Arguments Offered By The

Ninth Circuit Or The Respondents In

Douglas Are Persuasive

The Ninth Circuit’s opinion in /ndependent Living

Center did not provide any independent analysis of the

implied-right-of-action question. See 543 F.3d at 1055-64.

Instead, the Ninth Circuit acted as if this Court had long

ago resolved the issue. /d at 1065 (“Under well-

established law of the Supreme Court ... a private party

may bring suit under the Supremacy Clause to enjoin

implementation of state legislation allegedly preempted

by federal law.”). The cases on which the Ninth Circuit

relied, however, merely assumed the existence of a cause

of action because the litigants did not contest the issue.

17

See, e.g., City of Burbank v. Lockheed Air Terminal,

Inc., 411 U.S. 624 (1978); Ray v. Atl Richfield Co., 435

U.S. 151 (1978); Pharm. Research & Mfg. of Am v.

Walsh, 538 U.S. 644 (2003). When a cause of action is as-

sumed because the parties waived or failed to lock horns

over the issue, the case does not establish that a cause of

action exists. See Brecht v. Abrahamson, 507 U.S. 619,

630 (1993) (“{S]ince we have never squarely addressed

the issue, and have at most assumed [an answer], we are

free to address the issue on the merits.”); Waters v.

Churchill, 511 U.S. 661, 678 (1994) (plurality opinion)

(“These cases cannot be read as foreclosing an argument

that they never dealt with.”); Legal Servs. Corp. v. Ve-

lazquez, 531 U.S. 533, 557 (2001) (Scalia, J., dissenting)

(“Judicial decisions do not stand as binding ‘precedent’

for points that were not raised, not argued, and hence

not analyzed.”). A State that forfeits a no-cause-of-action

defense by failing to argue the issue does not preclude

future States from raising that defense—and it does not

allow a court of appeals to pretend that the binding prec-

edent of this Court forecloses judicial consideration of

that defense.

Some of the respondents in Douglas tried to charac-

terize federal statutory violations as constitutional viola-

tions. See Br. of Resp. Santa Rosa Memorial Hospital at

1-2, 9-10, Douglas, 132 S. Ct. 1204 (Nos. 09-958, 09-1158,

10-283), 2011 WL 3288334. Their argument proceeded as

follows: (1) The Constitution establishes an implied right

of action to seek injunctive relief to remedy all constitu-

tional violations. /d. at 9-10, 22-26. (2) The Supremacy

Clause makes any violation of the Medicaid Act by state

officials into a constitutional violation. Jd. at 10-11, 30—

18

31. (3) Therefore, the Constitution provides an implied

right of action to enforce the Medicaid Act against state

officials.

The syllogism is unsound because the major premise

(1) is wrong. Not all constitutional violations authorize

private litigants to seek injunctive relief under an im-

plied right of action. The Full Faith and Credit Clause,

for example, does not establish an implied cause of action

for injunctive relief—and neither does 28 U.S.C. § 1738,

the statute that implements that constitutional com-

mand. See Thompson v. Thompson, 484 U.S. 174, 182-83

(1988) (“{T]Jhe Full Faith and Credit Clause, in either its

constitutional or statutory incarnations, does not give

rise to an implied federal cause of action. Rather, the

Clause only prescribes a rule by which courts, Federal

and state, are to be guided when a question arises in the

progress of a penditig suit as to the faith and credit to be

given by the court to the public acts, records, and judicial

proceedings of a State other than that in which the court

is sitting.”) (citations and internal quotation marks omit-

ted); see also Minnesota v. N. Sec. Co., 194 U.S. 48, 72

(1904). The Supremacy Clause may be characterized in

much the same way. It “prescribes a rule by which

courts ... are to be guided” in cases of conflict between

federal and state laws. Thompson, 484 U.S. at 182. There

is no basis for asserting that every “constitutional” viola-

tion must give rise to a private judicial remedy for in-

junctive relief.

The minor premise of the syllogism (2) is also mis-

taken. State officials do not violate the federal Constitu-

tion whenever they violate a federal statute or treaty. If

they did, then every violation of a federal statutory right

19

would per se violate a right “secured by the Constitu-

tion.” 42 U.S.C. § 1983. And then there would have been

no need for the Court to resolve in Thiboutot, whether

violations of federal statutory rights are actionable un-

der section 1983, which provides a cause of action for

those deprived of rights “secured by the Constitution

and laws.” 42 U.S.C. § 1983 (emphasis added). Yet the

Court did not even consider it a possibility that it could

bootstrap violations of federal statutory rights into con-

stitutional violations, and instead spent five pages of its

opinion analyzing whether the phrase “and laws” should

extend to federal statutes. See 448 U.S. at 4-8; see also

Medellin v. Dretke, 544 U.S. 660, 666 (2005) (noting that

“a certificate of appealability may be granted only where

there is ‘a substantial showing of the denial of a constitu-

tional right.’ [28 U.S.C.] § 2258(c)(2) (emphasis added).

To obtain the necessary certificate of appealability to

proceed in the Court of Appeals, Medellin must demon-

strate that his allegation of a treaty violation could satis-

fy this standard.”); Legal Envtl. Assistance Found., Inc.

v. Pegues, 904 F.2d 644 (11th Cir. 1990) (“To imply from

the Supremacy Clause a cause of action against a state

official for review of the Administrator’s interpretation

of the federal statute or, as here, to dispute the Adminis-

trator’s interpretation of the regulations the Agency has

promulgated, would be to bootstrap a statutory claim

that should be asserted against the Administrator into a

constitutional issue. Applying [Ex parte] Young in these

circumstances would ignore the important distinction

between remedies implied to redress constitutional viola-

tions and remedies, whether implied or express, for vio-

lations of statutory rights.”); Andrews v. Maher, 525

20

F.2d 113, 118-19 (2d Cir. 1975) (“Plaintiffs also argue

that a claim that state welfare regulations violate the So-

cial Security Act is in fact a claim ... of deprivation of

rights “secured by the Constitution,” because such a

claim cannot succeed without ultimate resort to the Su-

premacy Clause. ... We reject the contention because it

transforms statutory claims into constitutional claims by

verbal legerdemain.”).

The argument also proves too much. If state officials

violate Article VI of the Constitution whenever they fail

to comply with “supreme” federal law, then do so private

actors. The supremacy of federal law declared in Article

VI is as binding on private citizens as it is on state offi-

cials. Yet no one contends that the Supremacy Clause

provides a cause of action against private individuals who

violate federal statutes or treaties. See, e.g., New Orle-

ans & Gulf Coast Ry. Co. v. Barrois, 533 F.3d 321, 330

(5th Cir. 2008) (refusing to interpret the Supremacy

Clause to establish a right of action “against private par-

ties”).

ll. EVEN IF THE SUPREMACY CLAUSE

ESTABLISHES A “PREEMPTION” CAUSE

OF ACTION, THE PLAINTIFFS’ CLAIMS

MUST BE DISMISSED BECAUSE 42 U.S.C.

§ 1396a(a)(30)(A) IS INCAPABLE OF

PREEMPTING STATE LAW

Even if one accepted the Ninth Circuit’s dubious con-

struction of the Supremacy Clause, there is a more fun-

damental problem with the plaintiffs’ lawsuit: A state law

or policy cannot be “preempted” by a federal statute that

does nothing more than specify criteria for federal reim-

21

bursement. As the petitioners’ brief convincingly demon-

strates, the Medicaid Act is no different from the statute

withholding federal highway money from States with a

sub-21 drinking age. See 23 U.S.C. § 158(a)(1)(A).* It

merely promises federal reimbursement to States that

comply with the criteria in the Medicaid Act, and threat-

ens to withhold part or all of that money from noncom-

pliant States. That a State may be docked federal money

for its policy decisions does not make those policy deci-

sions unlawful.‘

$23 U.S.C. § 158(a)(1)(A) provides: “The Secretary shall withhold 10

per centum of the amount required to be apportioned to any State

under each of sections 104(b)(1), 104(bX3), and 104(b)\4) of this title

on the first day of each fiscal year after the second fiscal year begin-

ning after September 30, 1985, in which the purchase or public pos-

session in such State of any alcoholic beverage by a person who is

less than twenty-one years of age is lawful.”

‘ Neither the petitioners nor the amici States are arguing that

spending legislation can never preempt state law. Some spending

legislation, such as Title VI of the Civil Rights Act of 1964 and the

Religious Land Use and Institutionalized Persons Act (RLUIPA),

imposes binding legal obligations on entities that accept federal

funds. These statutes require any “program or activity receiving

Federal financial assistance” to refrain from racial discrimination

and accommodate religious liberties. See 42 U.S.C. § 2000d;

2000cc(a)(2)(A). Under these laws, entities must renounce or return

federal aid before deviating from the specified conditions; otherwise

they become federal lawbreakers by violating conditions imposed on

the receipt of federal funds. See Cannon v. Univ. of Chi, 441 U.S.

677 (1979); Pet. Br. 50-51. The Medicaid Act does not use the lan-

guage of Title VI or RLUIPA; nowhere does the Medicaid Act say

anything akin to: “No State that receives federal Medicaid funds

shall ...” The Medicaid Act does nothing more than promise federal

(continued...)

22

The idea that a State becomes legally bound to com-

ply with 42 U.S.C. § 1396a(a)(30)(A) once it accepts fed-

eral Medicaid money is wrong. A State is not legally re-

quired to maintain a 21-year-old drinking age once it ac-

cepts federal highway money. Idaho could lower its

drinking age tomorrow, wait for the Secretary of Trans-

portation to respond by reducing federal highway funds

on the first day of the next fiscal year, and proceed with

business as usual. If anyone tried to sue Idaho officials

on the ground that 23 U.S.C. § 158(a)(1)(A) “preempts”

their efforts to lower the State’s drinking age, the law-

suit would be dismissed on the ground that State officials

have not violated any federal law—even though the State

is acting in a manner that may cause it to lose federal

money.

The Medicaid Act works the same way. If Idaho of-

fers rates for residential rehabilitation services that de-

part from the criteria in 42 U.S.C. § 1896a(a)(30)(A), then

Idaho may lose some or all of its federal Medicaid reim-

bursement. But Idaho does not violate federal law by

provoking the Secretary of Health and Human Services

to reduce or eliminate its federal funding. It is perfectly

lawful to operate a non-compliant Medicaid program;

nothing in federal law compels the States to permanently

establish a fully compliant Medicaid program once they

accept federal Medicaid money. And 42 U.S.C. § 1396c

removes any doubt on this score by allowing the Secre-

reimbursement to States whose Medicaid programs satisfy the cri-

teria of 42 U.S.C. § 1396a. It is not possible for a State to “violate”

such a statute.

23

tary to continue funding partially compliant States, by

withholding only a portion of their federal Medicaid al-

lotment:

If the Secretary, after reasonable notice and

opportunity for hearing to the State agency

administering or supervising the administra-

tion of the State plan approved under this sub-

chapter, finds—

(1) that the plan has been so changed that it no

longer complies with the pravisiazs of section

1396a of this title; or

(2) that in the administration of the plan there

is a failure to comply substantially with any

such provision;

the Secretary shall notify such State agency

that further payments will not be made to the

State (or, in his discretion, that payments will

be limited to categories under or parts of the

State plan not affected by such failure), until

the Secretary is satisfied that there will no

longer be any such failure to comply. Until he

is so satisfied he shall make no further pay-

ments to such State (or shall limit payments to

categories under or parts of the State plan not

affected by such failure).

42 U.S.C. § 1396c. This statute clearly and unequivocally

gives States the lawful option of accepting @ reduction

(or even elimination) of federal payments and continuing

with their non-compliant Medicaid programs. Yet on the

24

Ninth Circuit’s view, no State could ever opt out of Medi-

caid or choose to accept a partial reduction in federal re-

imbursement—because a private litigant will be able to

sue and enjoin the State’s officials as soon as they devi-

ate from any provision in the Medicaid Act. Only a belief

that Medicaid is forever can support such an approach.°

It has become common for courts to say that States

are legally bound to follow the provisions in the Medicaid

Act once they decide to participate in the program. See,

e.g., Sanchez, 403 F.3d at 337 (“{OJnce a state has ac-

cepted federal funds, it is bound by the strings that ac-

company them.”). That is not a defensible construction of

the Medicaid Act, and in all events that proposition can-

not be sustained after NFJB v. Sebelius. As this Court

recognized in NFIB, the Medicaid Act explicitly permits

the Secretary to continue funding a non-compliant State,

and withhold funding only from the “categories” or

“parts” of the State’s program that fail to comply with

the federal reimbursement criteria. See 42 U.S.C.

§ 1396c; NFIB, 132 S. Ct. at 2607 (opinion of Roberts,

C.J.); id. at 2642 n.27 (Ginsburg, J., concurring in part,

concurring in the judgment in part, and dissenting in

part). Partially compliant Medicaid programs are not on-

® Under the Ninth Circuit’s reasoning, it is not clear how a State

could ever opt out of this supposedly “voluntary” Medicaid program.

Is the State required to return every dollar of federal reimburse-

ment that it haa repeived since the inception of Medicaid? But see

NFIB, 132 S. Ct. at 2603-04 (prohibiting federal officials from im-

posing “coercive” penalties on States that choose not to comply with

Medicaid’s reimbursement criteria).

25

ly acceptable and lawful, they may even continue to re-

ceive federal money if the Secretary chooses to fund the

compliant aspects of the State’s program. Just as every

State may decline to implement the Medicaid-related

provisions in the Affordable Care Act and accept a re-

duced allotment of federal money, so too may a State es-

tablish a partially compliant Medicaid program and wait

to see if the Secretary will defund part or all of the

State’s Medicaid program. A State does not violate any

provision of federal law by acting in this manner.®

Finally, this Court has never rejected the argument

that the Medicaid Act is incapable of “preempting” state

law. Some decisions have assumed that the Medicaid

Act may preempt state law—but only because the state’s

attorneys in those cases failed to argue (and therefore

forfeited) the contention that the Medicaid Act does

nothing more than establish criteria for federal reim-

bursement. See Br. for the Petitioners, Ark. DHHS v.

Ahlborn, No. 04-1506, 2005 WL 3156905 (2005); Br. for

* Neither the petitioners nor the state amici are arguing that with-

holding federal funds represents the exclusive means of “enforcing”

the Medicaid Act against state officials. See, e.g., Middlesex Cnty.

Sewerage Auth. v. Natl Sea Clammers Ass’n, 453 U.S. 1, 28 n.11

(1981); Blessing v. Freestone, 520 U.S. 329, 349-50 (1997) (Scalia, J.,

concurring). The claim is that the Medicaid Act does not impose any

legal obligations on participating States. Like the federal highway

statute and the 21-year-old drinking age, the Medicaid Act merely

offers federal reimbursement to state Medicaid programs that satis-

fy certain criteria. There simply are no federal obligations to “en-

force,” because a State acts legally when it deviates from provisions

in the federal Medicaid Act.

26

the Petitioner, Delia v. E.M.A., No. 12-98, 2012 WL

5532211 (2012). These cases do not and cannot establish

a precedential holding that the Medicaid Act is capable

of preempting state law—any more than the cases that

assumed a private right of action because the issue went

uncontested by the litigants can establish a precedential

holding that a cause of action exists. See supra at 16-17;

see also Brecht, 507 U.S. at 630-31 (“(S]ince we have

never squarely addressed the issue, and have at most

assumed (an answer], we are free to address the issue on

the merits.”); Waters, 511 U.S. at 678 (plurality opinion)

(“These cases cannot be read as foreclosing an argument

that they never dealt with.”); Legal Servs. Corp., 531

U.S. at 557 (Scalia, J., dissenting) (“Judicial decisions do

not stand as binding ‘precedent’ for points that were not

raised, not argued, and hence not analyzed.”). Neither

Idaho nor the amici States can be precluded from mak-

ing this argument simply because lawyers from other

States omitted this claim in past Medicaid disputes.’

" Nothing in this argument precludes Medicaid providers or benefi-

ciaries from asserting federally protected “rights” under 42 U.S.C.

§ 1983. Title VI’s prohibition on race discrimination imposes binding

legal obligations on all entities that receive federal funds, which in-

cludes state Medicaid agencies. And there may be provisions in the

Social Security Act that establish federal “rights” under the test in

Gonzaga. But the statutory provision at issue in this case is nothing

more than a condition for receiving continued federal reimburse-

ment, and it neither imposes legal obligations on participating

States nor creates federal rights. See 42 U.S.C. §§ 1396a(a)(30)(A),

1396c.

27

Ill. THE DOCTRINE OF PRIMARY

JURISDICTION REQUIRED THE LOWER

COURTS TO ABSTAIN AND REFER THIS

MATTER TO CMS BEFORE ENJOINING

THE STATE’S OFFICIALS

Even if this Court believes that the plaintiffs have a

cause of action, and even if this Court further believes

that the Medicaid Act is capable of “preempting” state

law, the court of appeals’ judgment should still be re-

versed under the doctrine of primary jurisdiction. “Pri-

mary jurisdiction is a judicially créated doctrine whereby

a court of competent jurisdiction may dismiss or stay an

action pending a resolution of some portion of the action

by an administrative agency.” Wagner & Brown v. ANR

Pipeline Co., 837 F.2d 199, 201 (5th Cir. 1988); see also

Pharm. Research & Mfg. of Am., 588 U.S. at 673-74

(Breyer, J., concurring in part and concurring in the

judgment) (noting that “the legal doctrine of ‘primary

jurisdiction’ permits a court itself to ‘refer’ a question to

the Secretary” and that “courts may raige the doctrine

on their own motion”); 2 Richard J. Pierce, Jr., Adminis-

trative Law Treatise §14.4, at 946 (4th ed. 2002)

(“(Cjourts frequently hold that an issue of federalism—

an arguable conflict between the goals of a statute ad-

ministered by a federal agency and the effects of a state

action—should be referred to the federal agency for ini-

tial resolution under the primary jurisdiction doctrine.”).

The language of 42 U.S.C. § 1396a(a)(30)(A) is couched in

vague and general terms that cry out for agency elabora-

tion. See, eg., 42 U.S.C. § 1396a(a)(30)(A) (requiring a

State’s Medicaid plan to provide reimbursement “con-

sistent with efficiency, economy, and quality of care and

28

are sufficient to enlist enough providers so that care and

services are available under the plan at least to the ex-

tent that such care and services are available to the gen-

eral population in the geographic area”). The court of

appeals should have abstained and referred this matter

to CMS before enjoining the State’s officials.

CMS has never disapproved or complained of Idaho’s

reimbursement rates for residential habilitation services.

See Pet. Br. 7 (“At no time relevant to this case has CMS

ever initiated any compliance action or otherwise com-

plained about the State’s rates or its compliance with the

DD Waiver.”). Nor has CMS opined on whether Idaho’s

policy comports with 42 U.S.C. § 1396a(a)(30)(A). In the-

se situations, a federal court should give CMS an oppor-

tunity to express its views and defer to those views be-

fore embarking on a de novo interpretation of the Medi-

caid Act.

Douglas: holds that CMS’s interpretations of the

Medicaid Act—and its judgments whether a State plan

complies with the Medicaid Act—“carr[y] weight.” The

- Court explained:

The Medicaid Act commits to the federal agen-

cy the power to administer a federal program.

And here the agency has acted under this

grant of authority. That decision carries

weight. After all, the agency is comparatively

expert in the statute’s subject matter. And the

language of the particular provision at issue

here is broad and general, suggesting that the

agency's expertise is relevant in determining

its application.

29

132 S. Ct. at 1210. Douglas did not resolve whether pri-

vate litigants could ever challenge a CMS-approved state

Medicaid plan by suing the State’s officials (as opposed

to suing the Secretary in an APA lawsuit), and left this

issue for the Ninth Circuit to resolve on remand. Jd. at

1211. But Douglas unequivocally holds that CMS’s views

are relevant in determining whether a lawsuit brought

against state Medicaid officials can proceed, and in de-

termining whether a State’s policies comply with the re- °

imbursement criteria in the Medicaid Act.

The court of appeals’ approach permits private liti- ©

gants to push aside CMS’s interpretive role by filing 2

lawsuit before the agency has an opportunity to addréss

the legality of the State’s policy. That is incompatible

with the role that Douglas establishes for CMS in inter-

preting the Medicaid Act. See generally Cass R. Sun-

stein, Section 1983 and the Private Enforcement of Fed-

eral Law, 49 U. Chi. L. Rev. 394, 395 (1982) (noting that

when a statute “has imposed duties on the states, but has

delegated to a federal agency the authority to enforce

those duties against the relevant state officials ... [the]

recognition of a private cause of action ... could disrupt

the statatory enforcement scheme and undermine the

agency's ability to make law and policy.”)

When litigants challenge a Medicaid policy that CMS

has neither approved nor disapproved, the federal court

should stay its hand and solicit the agency’s views before

plowing ahead with its de novo views of what the Medi-

caid Act requires. See, e.g., Dartmouth-Hitchcock Clinic

v. Toumpas, No. 11-cv-358-SM, 2012 WL 4482857, ai *1

(D.N.H. Sept. 27, 2012) (relying in part on Douglas);

Miller ex rel. v. Olszewski, No. 09-13683, 2009 WL

30

5201792, at *8-*9 (E.D. Mich. Dec. 21, 2009); Affiliates,

Inc. v. Armstrong, Nos. 1:09-cv-00149-BLW, 1:11-cv-

00307-BLW, 2011 WL 3421407, at *7 (D. Idaho Aug. 4,

2011). This is especially true when interpreting a provi-

sion as ambiguous as 42 U.S.C. § 1396a(a)(30)(A).

CONCLUSION

The judgment of the court of appeals should be re-

versed.

Respectfully submitted.

GREG ABBOTT JONATHAN F. MITCHELI,

Attorney General of Texas Solicitor General

Counsel of Record

DANIEL T. HODGE

First Assistant OFFICE OF THE

Attorney General ATTORNEY GENERAL

7 P.O. Box 12548 (MC 059)

Austin, Texas 78711-2548

jonathan.mitchell@

xg texasattorneygeneral.gov

November 2014 7 (512) 936-1700

oi