# Amicus Curiae Brief — Douglas v. California Pharmacists Association, (2009) (No. 1158)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2009

## Text

RECORD

“
‘. Nos. 09-958, -1158, and 10-283

Jn the Supreme Court of the Anited States

TOBY DOUGLAS, DIRECTOR, CALIFORNIA DEPARTMENT

OF HEALTH CARE SERVICES, Petitioner,
v

INDEPENDENT LIVING CENTER OF SOUTHERN
CALIFORNIA, INC., Respondent.

TOBY DOUGLAS, DIRECTOR, CALIFORNIA DEPARTMENT
OF HEALTH CARE SERVICES, ET AL., Petitioners,
Vv.

CALIFORNIA PHARMACISTS ASSOCIATION, ET AL.,
Respondents.

TOBY DOUGLAS, DIRECTOR, CALIFORNIA DEPARTMENT
OF HEALTH CARE SERVICES, Petitioner,
Vv.
SANTA ROSA MEMORIAL HOSPITAL, ET AL.,
Respondents.

On Writs of Certiorari to the United
States Courts 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
ROBIN S. CONRAD ALAN UNTEREINER
KATE COMERFORD TODD Counsel of Record
SHELDON GILBERT MARK T. STANCIL
National Chamber ALEX POTAPOV
Litigation Center, Inc. Robbins, Russell, Englert, Orseck,
1615 H Street, N.W. Untereiner & Sauber LLP
Washington, D.C. 20062 1801 K Street, NW, Suite 411
(202) 463-5337 Washington, D.C. 20006
(202) 775-4500
auntereiner@robbinsrussell.com

—————————— eee

Library of Congress
™ Law Library

TABLE OF CONTENTS

Re GHEE FUE BEER OUUE wher cresencctrsccanunsscoctecsessiencese iv
INTEREST OF THE AMICUS CURIAE ..................... 1
I EE shiv ex copes cacncsorsecoboaceecacisespnasnsassuecesnowbeynceinns 3
OR FIUS © COU PRS UPMIIEEE, osc ccsccecccscvsccsostesecesvceseanes 4
INT Srbinsiccbnckichasedceebpkiamainavetseansannetvatnepnsisctsiesenne 7
1. THIS COURT SHOULD UNAMBIGUOUSLY

HOLD THAT A CAUSE OF ACTION EXISTS
UNDER THE SUPREMACY CLAUSE FOR
INJUNCTIVE RELIEF AGAINST PRE-
ee Se FEE Oe BOF scncecessesecnscvesnsenccssconseccsceons

A. This Court’s Decisions And Longstanding

B. The Court Should Reject Petitioners’ Efforts
To Sow Doubt About, And To Limit, This
Important Cause Of Action Based On
Inapposite Case Law Involving Either
Section 1983 Or Implied Rights Of Action
Under Federal Statute ...........ccccccccoccscscccesesees

3s

TABLE OF CONTENTS—Continued
Page

ll. THIS COURTS ESTABLISHED APPROACH
FINDS SUPPORT IN THE HISTORY OF THE
SUPREMACY CLAUSE AND IS NECESSARY
TO EFFECTUATE ITS PURPOSE AND TO
BRING ABOUT THE SIGNIFICANT
BENEFITS OF THE PREEMPTION
SIN Secscinineehoveusescatdcnvsecicanmmertenstuavonseseeunnnes 17

A. The Framers Assigned The Principal
Responsibility To Enforce Federal
Supremacy To The Courts Rather Than To
SII corgi avi sasnausei cigarehaaschadestnaieitancsinsacences 17

B. Petitioners’ Rule Would Harm Businesses
And Consumers And Undermine The
Significant Benefits Flowing From The
IIS GTI occ ccna eueesssepensenbsaentanneietes 24

IIL.PETITIONERS’ ATTEMPTS TO NARROW
THE CAUSE OF ACTION UNDER THE
SUPREMACY CLAUSE TO EXCLUDE THIS
CASE IMPROPERLY IMPORT CONCERNS
THAT ARE NOT GROUNDED IN THE
SURPREMACY CLAUSE, AND ARE
APPROPRIATELY ADDRESSED BY
STANDING RULES AND THE
SUBSTANTIVE LAW OF PREEMPTION ........... 30

A. The Supremacy Clause Does Not Support
Petitioners’ Proposed Limitation, And
Standing Rules Ensure That Preemption
Lawsuits Are Brought, As Here, Only By
pe Bg ar 30

TABLE OF CONTENTS—Continued

B. Whether

Page

Spending Clause Legislation

Should Be Treated Differently Is A
Question Of Preemption Doctrine................... 34

CONCLUSION

iv

TABLE OF AUTHORITIES

Cases
American Nat'l Red Cross v. S.G.,

Ey GUE OC OED vccevescescccnncecscccdccscaccccsesoss

Arkansas Dep’t. of Health & Human Services
v. Ahlborn,

a a cndanaveensusncteseutecsencssene

Arkansas Electric Coop. Corp. v. Arkansas
Public Service Comm'n,

SS

Bethlehem Steel Co. v. New York State Labor
Relations Board,

EE I ME OD iccccssnscsesavscevecescasevecseesecoes

Blum v. Bacon,

EE SE ED vn ocecavccssonsccsasccccascccccoceccee

Carleson v. Remillard,

ED vn dciccncancosesusseen cesesceonecsecove

Chamber of Commerce of the United States v.

Brown,

ET ED edsasikckadescotvocosvesessocsssscconecess

Chamber of Commerce of the United States v.

Whiting,

i Sa CME BD sccsevevcsscsncssscccsscscvsssesccs

City of Los Angeles v. Lyons,

ED oA vinnenedcvancnvscsdeiveinssscesossses

Page(s)

jecwanatss 34

.... 34, 35

Vv

TABLE OF AUTHORITIES—Continued

Page(s)

Cort v. Ash,

imuEus Bune. oe 14, PG, 24
Crosby v. National Foreign Trade Council,

ee a Se I oc ceatdaciiectetecriteiedeees sates eeEe, 2,14
Davis v. Passman,

Te: Se. oe eee 24
Ex parte Young,

es I I i cbanicccntscnasccscdaubeucetateucasebecceceuae: 10
Farricielli v. Holbrook,

ee re ee ee Ss ED ctissncedtdsndecdinicceactnuecuctenc: 12
Foster v. Love,

ee ree We CE iicctecericseisnicccoubeee ache 14
Gade v. Nat Solid Wastes Mgmt. Ass'n,

a ee Mt eT NA 2 2,14
Geier v. American Honda Motor Co.,

RRS a Pa A net SN Ra tts rete 7
Golden State Transit Corp. v. City of Los

Angeles,

I a eC evtrecctenctisncncomsatncecventnnnascadiitcecnas 13, 32
Gonzaga Univ. v. Doe,

ee eee ee I vanaccvsctanctcccnestsneabetenkastcs 14, 16, 24

Green v. Mansour,
er te eI ckccdu siceerndccsvcknoisennntnadans 5, 12, 13, 14

v1

TABLE OF AUTHORITIES—Continued

Page(s)
Guar. Nat’ Ins. Co. v. Gates,
oo § & FF a RR Ae 12
Hughes v. Oklahoma,
ne 17
Indep. Living Ctr. of S. California, Inc. v.
Shewry,
543 F.3d 1050 (9th Cir. 2008)........................... 12, 31
Lorillard Tobacco Co. v. Reilly,
ER RALESS SERS a eS ee Re NO NY PES 14
Morales v. Trans World Airlines,
ee Be I cciiituinisccnbdeiccsicuccstinckintidenbanieuenes 29
NLRB v. Nash-Finch Co.,
I ad cpliimednt iaicnsnina auiaidtianmeenabbiale 28
Osborn v. Bank of the United States,
_ ie ek fy eee 11
Pharm. Research & Mfrs. of Am. v.
Concannon,
ee ee ee Ce Ge TD dacdnceniictiincvenceensiniinndntcidas 12
Pharm. Research & Mfrs. of Am. v. Walsh,
ee I I iii rie iinidecniiicecsiteiiaiinianss 2, 12, 36
Planned Parenthood of Houston and
Southeast Tex. v. Sanchez,
GOB FE BG COR GP. BE oiccvsncccccscccciccccccccsccccccess 12
Ray v. Atlantic Richfield Co.,
ee ee ee I iit itnttaiielintatenntentactdenieiiednbesion 28

vii
TABLE OF AUTHORITIES—Continued
Page(s)

Rowe v. New Hampshire Motor Transp. Ass'n,
SEE GER MII I seiteicenecaciucovutece>sanvedsanemuanns pe@ssim

Shaw v. Delta Airlines, Inc.,
ee ie: ee Ge ateiinrcctintenteninsenciicnpeiinisiasindicnnanns 9,10

St. Thomas-St. John Hotel & Tourism Ass'n,
Inc. v. Gov't of U.S. Virgin Islands,

BIS F.Be BSS GS Che. BOG) ....cccccccccscccccccccsccccsccccees 12
Steel Co. v. Citizens for a Better Env't,

I Cr ee CE rinses atistieenccinsiadnperianindeisnnntnidenaunten 31
Transamerica Mortg. Advisors, Inc. v. Lewis,

ND. ee i cccectsbiesenisiatnceinedecissorsniediscamehauiisanieiambiexercieus 15
Verizon Maryland Inc. v. Pub. Serv. Comm'n

of Maryland,

ee Ee: CE MIE cisnneatitisnsacadincideminnansddinntncisontimadiin 10

Watters v. Wachovia Bank, N.A..,
gg | BY, BR ear 2,11

Wilder v. Virginia Hosp. Ass'n,
Ne a, MUI IIT sc ttnscicncisncisiiniciniciieoeicienmintunbeesenusauiontonies 3

Constitutional Provision and Statutes

UTM; COIR, 0008. WE, A, Bsc semecscccsntenernnen 3, 9, 18, 22
Ue CN i 27
7 Se 25

ee Es SAA Rcibiindaintahuidtintniimnsseienaditbenaumecataaduntiamiannes 10

TABLE OF AUTHORITIES—Continued

Page(s)
42 U.S.C. § 1396a(a)(30)(A)......... ssiecinnasliaiassininaleciainaieendaiasiin 4,7
A OI a inciceciesiceeiectnseci sinc ce 13, 23
TE ea TT ee TI ee 27
es Oy Ee cccnintesidevs stpunincheiinutucsenmedetindcerss 25
OF Be eR itncehthictcrbicbaniadicneciemcenbbankes 27
A es Fie re er icicnesnsncnccisseenessubsconsovbaieosaiis 27
GO UIB.G. GE GOTO EOI oossiscsccescrecesscnecssjecssesesssecses. 27
Rs te FI iaiciiehiccsrsttnnidtincinsictindasnantdtivcdintebaeadurans 29

Other Authorities

Samuel Bagenstos, Spending Clause
Litigation in the Roberts Court,
58 DUKE L.J. 345 (2008)...................ccecceceseeceeeseeeeees 34

Michele Bradley, The States’ Role in
Regulating Food Labeling and Advertising:
The Effect of the Nutrition Labeling and

Education Act of 1990,

49 Foop & DRUG L.J. 649 (1994) ..00000 eoosy De
Bradford Clark, Separation of Powers as a

Safeguard of Federalism,

TO TUM Ee, TRV. REBT GOGO) ......cccccccccsccccccccccceccesceece 19

Bradford Clark, Unitary Judicial Review,
72 GEO. WASH. L. REV. 319 (2003) .............. 19, 20, 21

ix

TABLE OF AUTHORITIES—Continued

Page(s)
Viet Dinh, Reassessing the Law of
Preemption,
I a Un i 20

R. FALLON, JR., J. MANNING, D. MELTZER, & D.
SHAPIRO, HART AND WECHSLER’S THE
FEDERAL COURTS AND THE FEDERAL SYSTEM
PPP MINI: SII ix<ssnccmesacencsslnieisiiondsieieedddimeaiesiecsus si. && 23

James Madison,
Vices of the Political System of the United
States (Apr. 1787),
in 9 PAPERS OF JAMES MADISON 345
(R. Rutland & W. Rachal eds. 1975)....................... 18

James Madison, Notes on the Constitutional
Convention (May 29, 1787),
in 1 THE RECORDS OF THE FEDERAL
CONVENTION OF 1787 (Max Farrand,
SUEEA: TINUED dntusndichistdindddisinidiitainamaindinaciibsamnrniunal 19, 20, 21

Michael McConnell, A Choice-of-Law Approach to
Products-Liability Reform,
in NEW DIRECTIONS IN LIABILITY LAW 90
(Walter Olson ed., 1988)..............0..ccccccccccceeeeee 26, 27

Michael McConnell, Federalism: Evaluating the
Founders’ Design,
OG TR, Ca, Bc Bes ROS CID vivciccsccicccccsdsssessccsicss 26

Caleb Nelson, Preemption,
8S BF RE oe ee 18, 22, 23

x

TABLE OF AUTHORITIES—Continued

Page(s)
David Sloss, Constitutional Remedies for
Statutory Violations,
89 IOWA L. REV. 356 (2004) ...................ccccccsesece 15, 16
I BN sete bactiadicsedca crtcicddacacietendicanueiice 21

13D C. WRIGHT & A. MILLER,
FEDERAL PRACTICE & PROCEDURE (3d ed.
MINED icinesiaithniecnocieadbeiincadsnisedin ia tisedandiinbekean tae tee bc taken 10, 12

BRIEF OF THE CHAMBER OF COMMERCE OF
THE UNITED STATES OF AMERICA AS
AMICUS CURIAE IN SUPPORT OF
RESPONDENTS

INTEREST OF THE AMICUS CURIAE'

The Chamber of Commerce of the United States
of America (the Chamber) is the world’s largest
business federation. The Chamber 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 Chamber’s members de-
pend on the robust enforcement of conflict pre-
emption principles as protection against state and
local mandates that interfere or conflict with
requirements imposed by federal law. The
Supremacy Clause of the Constitution, which is the
fountainhead of the doctrine of conflict preemption,

' The parties’ letters of consent to the filing of this brief have
been filed with the Clerk. Under this Court’s Rule 37.6, amicus
curtae states that no counsel for a party authored this brief in
whole or in part, and no counsel or party made a monetary
contribution intended to fund the preparation or submission of
this brief. No person or entity, other than the amicus curiae or
its counsel, has made a monetary contribution to this brief's
preparation or submission.

serves a vital structural role in our WNation’s
government and economy by (a) protecting all federal
laws and- programs against interference by
subordinate governments; and (b)_ eliminating
regulatory burdens placed on the formation and
operation of unified national markets for goods and
services. Those crucial societal benefits depend on
the availability of effective means for injured
businesses and other litigants to enforce the
Supremacy Clause in the courts—the primary
institutions to which the Framers assigned this
important responsibility. In this case, petitioners
seek to weaken or eliminate a significant, time-tested
method for such enforcement: the cause of action for
equitable relief 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., 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). When not acting as a party, the Chamber has
frequently supported such suits as an amicus curiae.
See, e.g., Rowe v. New Hampshire 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); Crosby v.
National Foreign Trade Council, 530 U.S. 363 (2000);
Gade v. Nat’ 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.

3

STATEMENT

The Supremacy Clause provides that “[t]his
Constitution, and the Laws of the United States
which shall be made in Pursuance thereof: and all
Treaties made, or which shall be made, undew 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. The question presented by
this case is whether the Supremacy Clause furnishes
a cause of action for injunctive relief against state
enactments that are preempted by federal law.

The federal statute involved here is the Federal
Medicaid Act, which sets out “a cooperative federal-
state program through which the Federal Govern-
ment provides financial assistance to States so that
they may furnish medical care to needy individuals.”
Wilder v. Virginia Hosp. Ass’n, 496 U.S. 498. 502
(1990). States that choose to accept federal funding
must comply with certain requirements set out in the
statute, as well as in regulations promulgated by the
Secretary of Health and Human Services. California
has accepted funding and is therefore bound by those
requirements in administering the State’s Medicaid
program (known as “Medi-Cal”).

In a series of lawsuits, various entities and
individuals—in«’ading hospitals, pharmacies, phar-
macists, adult day health centers, and individual
Medicaid recipients—challenged several California
statutes, each of which reduced Medicaid payment
rates. The plaintiffs (respondents here) argued that,
by ordering further’ successive reductions’ in
California payment rates that were already the lowest

in the Nation on an average per-enrollee basis, the
California statutes violated Section 30(A) of the
Medicaid Act, 42 U.S.C. § 1396a(a)(30)(A). Section
30(A) provides, in relevant part, that States must
take certain steps to “assure that payments” are not
only “consistent with efficiency, economy, and quality
of care” but also “sufficient to enlist enough providers
so that care and services are available under the plan
at least to the extent that such care and services are
available to the general population in the geographic
area.” In each of the cases, the district court
ultimately entered a preliminary injunction against
the challenged rate reduction, and the Ninth Circuit
affirmed.

The two basic questions facing the Ninth Circuit
were (1) whether the Supremacy Clause provided a
cause of action for the respondents—Medicaid pro-
viders and recipients who face injury from the rate
reductions—to seek injunctive relief on preemption
grounds; and (2) whether the challenged California
statutes imposing the rate reductions were in conflict
with, and thus preempted by, the Medicaid Act. The
Ninth Circuit answered both questions in the
affirmative. This Court granted certiorari with
respect to only the first question. As this case comes
to the Court, then, it is undisputed that the
challenged California statutes violate or directly
conflict with Section 30(A) of the Medicaid Act.

SUMMARY OF ARGUMENT

The question presented is whether this Court
should foreclose (or at least sharply curtail) an
avenue of relief that has long been available: namely,
a cause of action for equitable relief against
preempted state laws. The Court should adhere to its

5

historical practice and continue to recognize the
preemption cause of action. Furthermore, it should
hold explicitly that this cause of action arises under
the Supremacy Clause.

i. This conclusion is dictated by this Ceurt’s
longstanding and consistent practice over almost 200
years. The Court has specifically held that there is
federal jurisdiction over preemption claims.
Moreover, the Court has routinely proceeded directly
to the merits of such claims, frequently granting
relief to plaintiffs requesting injunctive relief against
preempted state or local laws without doubting that
there was a valid cause of action. These decisions
firmly establish the general availability of a private
cause of action for prospective relief on preemption
grounds.

Multiple lower courts and commentators have
correctly recognized that this cause of action is rooted
in the Supremacy Clause. This Court has also
recognized the nexus, explaining that “the. availa-
bility of prospective relief ... gives life to the
Supremacy Clause.” Green v. Mansour, 474 U.S. 64,
68 (1985).

Petitioners mistakenly seek to impair that vitality
by confining this cause of action to the parameters of
the Court’s Section 1983 and implied-cause-of-action
jurisprudence. They cannot account, however. for the
Court’s different approach to preemption cases.
Instead of applying the analytical frameworks it has
developed in the Section 1983 and implied-cause-of-
action contexts, the Court in preemption cases pro-
ceeds directly to the merits. This longstanding and
consistent approach is justified, as the preemption

cause of action is different from these points of
comparison in several crucial respects.

II. The history of the Supremacy Clause
demonstrates that the Framers entrusted enforce-
ment of federal supremacy to the courts, and that
they regarded the Supremacy Clause as the effective
means of accomplishing that objective. The
Supremacy Clause was adopted to prevent States
from flouting federal law. It was chosen over two
alternatives—one that would have placed the
responsibility for ensuring federal supremacy on the
Executive Branch (by authorizing the Union to coerce
noncompliant States with military force), and another
that would have relied on affirmative action by
Congress (by giving it a “negative” over state law).
The Supremacy Clause was ultimately chosen
because it was viewed as an adequate substitute for
the Congressional negative; in other words, it was a
potent, affirmative guarantee of federal supremacy,
to be implemented by the courts. In recognizing the
preemption cause of action, this Court is ensuring
that the judiciary will continue to perform the role
assigned to it by the Supremacy Clause.

Furthermore, this cause of action remains vitally
important as a safeguard against widespread flouting
of federal law by state and local governments. If
credited, the petitioners’ position would undermine
the effectiveness of federal preemption. That, in
turn, would harm businesses and consumers by
undercutting the crucial systemic benefits of
preemption, which include the promotion of
regulatory uniformity, the flourishing of a unified
national marketplace, and the enablement of national
deregulatory policies.

Ill. Petitioners say that a cause of action should
not be available in this case because the challenged
California statutes do not directly regulate the
respondents’ conduct. Such a requirement would add
little, however, because standing rules already ensure
that only appropriate plaintiffs may bring preemption
actions. Moreover, this limitation makes no sense
because it would require courts to treat direct and
indirect regulations differently even if they have the
identical effect on the plaintiffs and are equally
preempted. See Geier v. American Honda Motor Co.,
529 U.S. 861, 873 (2000) (rejecting analysis that
would “further complicat[e] well-established pre-
emption principles that already are difficult to

apply’).

Finally, the petitioners argue that the Supremacy
Clause cause of action should be unavailable with
respect to Spending Clause statutes, because such
statutes resemble contracts more than ordinary
legislation. That is squarely at odds with the Court’s
cases, which treat Spending Clause statutes as
having fully preemptive force. Moreover, that
contention is simply a preemption argument on the
merits, rather than an argument concerning the
existence of a cause of action. As such, it is irrelevant
in this case.

ARGUMENT

The central issue in this case is whether this
Court should decline to recognize an equitable right
of action under the Supremacy Clause to enjoin
California officials from implementing and enforcing
state laws that violate or directly conflict with a
provision of the Federal Medicaid Act, 42 U.S.C.
§ 1396a(a)(30)(A). Petitioners and their amici

correctly acknowledge that this Court's cases
recognize a federal equitable cause of action to enjoin
state laws preempted under the Supremacy Clause,
at least in certain circumstances. See Brief of
National Governors Ass'n et al., at 23-24 (recognizing
“a right in equity to assert an anticipatory defense
against the enforcement of a pre-empted State law’)
(“NGA Br.”); Pet. Br. 43-44 & n.15 (same; recognizing
as well that “the federal government may sue to
enjoin state law that purportedly is preempted by
federal law”); U.S. Br. 21 & n.7. For its part, the
United States further acknowledges that this cause of
action has “considerable historical grounding,” is
“well established,” and “serves an important purpose
in vindicating the supremacy of federal law.” U.S.
Br. 21 n.7.

Despite these concessions, petitioners and their
amici repeatedly seek to cast doubt upon a line of this
Court’s cases that, as respondents demonstrate,
extends back almost 200 years. See Brief of
Respondents Santa Rosa Memorial Hospital et al., at
18-26 (“Santa Rosa Resp. Br.”); Brief of Intervenor
Respondents in No. 09-958 and _ California
Pharmacists Respondents in No. 09-1158, at 20-31
(“California Pharmacists and intervenor Resp. Br.”);
Brief for Dominguez Respondents in Case No. 09-
1158, at 7-11 & App. la-lla (listing 61 decisions of
this Court) (“Dominguez Resp. Br.”). Petitioners’
principal contention is that this cause of action
should not be available when the preemption arises
from a statute enacted under the federal Spending
Clause.

This Court should reject that departure from
longstanding practice. Proper resolution of this

question turns on the nature of the Supremacy
Clause, not the particular statute at issue. The
Supremacy Clause was intended as an affirmative
guarantee that national law will be effective in
displacing inconsistent state and local regulation.
And it is undisputed that responsibility for enforcing
that guarantee was vested in the judiciary; indeed,
petitioners and their amici acknowledge that the
Framers rejected alternative proposals that would
have required Congress to serve as the arbiter of
federal supremacy. Pet. Br. 38; NGA Br. 4, 14-16.
And yet that is precisely what petitioners and their
amici now urge in claiming that there is no cause of
action under the Supremacy Clause (in this statutory
context, at least)—if Congress does not affirmatively
supply a statutory right of action, they say, then the
constitutional guarantee of federal supremacy is
merely hypothetical. But the Supremacy Clause
flatly declares that federal law “shall be the supreme
Law of the Land,” U.S. CONST., art. VI, cl. 2
(emphasis added), not that it “ought” to be supreme if
Congress so provides.

I. THIS COURT SHOULD UNAMBIGUOUSLY
HOLD THAT A CAUSE OF ACTION EXISTS
UNDER THE SUPREMACY CLAUSE FOR
INJUNCTIVE RELIEF AGAINST PRE-
EMPTED STATE LAWS

A. This Court’s Decisions And Longstanding
Practice Already Establish This Cause Of

Action

Almost thirty years ago, in Shaw y. Delta Air
Lines, Inc., 463 U.S. 85 (1983), this Court addressed
the question of federal jurisdiction over preemption
claims. The Court explained that “[a] plaintiff who

10

seeks injunctive relief from state regulation, on the
ground that such regulation is pre-empted by a
federal statute which, by virtue of the Supremacy
Clause of the Constitution, must prevail, thus
presents a federal question which the federal courts
have jurisdiction under 28 U.S.C. § 1331 to resolve.”
463 U.S. at 96 n.14. That conclusion, which was
emphatically reiterated in Verizon Maryland Inc. v.
Pub. Serv. Comm’n of Maryland, 535 U.S. 635, 642
(2002), is rooted in a long line of authority stretching
back at least to the seminal opinion in Ex parte
Young, 209 U.S. 123 (1908). As a leading treatise
observes: “The entire line of cases beginning with Ex
parte Young establishes that in many circumstances
a person confronted with efforts to apply state law
may invoke federal question jurisdiction to restrain
state officials on the ground of unconstitutionality of
a state enactment. The version of unconstitutionality
that arises from the preemptive effect the Supremacy
Clause gives to federal statutes would seem to be no
different.” 13D C. WRIGHT & A. MILLER, FEDERAL
PRACTICE & PROCEDURE § 3566, at 288 (3d ed. 2008)
(footnotes omitted) (“WRIGHT & A. MILLER”); see also
Shaw, 463 U.S. at 96 n.14 (citing Ex parte Young).

To be sure, the issue of subject matter jurisdiction
may be distinguished from the cause-of-action
inquiry. Verizon, 535 U.S. at 642-43. But it is
noteworthy that in Shaw, where a group of employers
claimed that two New York statutes were preempted
by federal law, the Court proceeded directly to the
merits, without ever questioning whether there was a
valid cause of action. Shaw, 463 U.S. at 95-96.
Indeed, the Court granted relief to the employers,
holding that one of the statutes was at least partially
preempted. Jd. at 108-09. In so doing, the Court

1]

unmistakably indicated that the employers had a
valid cause of action.

Moreover, as respondents persuasively demon-
strate, Shaw is part of a long line of cases in which
the Court has allowed private parties to sgek
prospective relief against state officials on pre-
emption grounds. See Santa Rosa Resp. Br. 18-26;
California Pharmacists and Intervenor Resp. Br. 20-
31; Dominguez Resp. Br. 7-11 & App. 1la-1lla (listing
61 decisions of this Court). Even the United States,
in siding with petitioners, is constrained to admit
that this Court has “decided dozens of preemption
claims against state officials on their merits in cases
brought in federal court.” U.S. Br. 9 (emphasis
added). As respondents persuasively demonstrate,
this line of cases in fact stretches back almost 200
‘years, to the Court’s decision in Osborn v. Bank of the
United States, 22 U.S. (9 Wheat.) 738 (1824). See
Santa Rosa Resp. Br. 18-19 (discussing Osborn);
California Pharmacists and Intervenor Resp. Br. 20-
21 (same); Dominguez Resp. Br. 7-8 (discussing
Osborn and other early cases).?

In short, through its decisions and consistent
practice over almost 200 years, this Court has made
clear that there is a generally available cause of
action for parties who seek to enjoin state action on
the ground that it is preempted. See R. FALLON, JR.,

2

Recent examples include Rowe v. New Hampshire Motor
Transp. Ass'n, 552 U.S. 364 (2008) (Maine tobacco law), Watters
v. Wachovia Bank, N.A., 550 U.S. 1 (2007) (Michigan banking
regulations), and Arkansas Dep't of Health & Human Services v.
Ahlborn, 547 U.S. 268 (2006) (Arkansas law governing liens
asserted against tort settlements by Medicaid recipients).
Earlier examples could be effortlessly multiplied. See
Dominguez Resp. Br. App. 1a-11a (collecting cases).

12

J. MANNING, D. MELTZER, & D. SHAPIRO, HART AND
WECHSLER’S THE FEDERAL COURTS AND THE FEDERAL
SYSTEM 807 (6th ed. 2009) (describing as “well-
established” the “rule” that a cause of action exists “to
enjoin state or local regulation that is preempted by a
federal statutory or constitutional provision—and
that such an action falls within the federal question
jurisdiction”) (“HART AND WECHSLER”).
Unsurprisingly, the lower courts have uniformly
followed suit and recognized such a cause of action.
See Indep. Living Ctr: of S. California, Inc. v. Shewry,
543 F.3d 1050, 1058-59 (9th Cir. 2008) (collecting
cases).

Although this Court has not explicitly identified
the precise source of this cause of action, many lower
courts and commentators have correctly concluded
that it arises under the Supremacy Clause. As the
Wright & Miller treatise notes, this is “[t]he best
explanation of Ex parte Young and its progeny.” 13D
WRIGHT & MILLER, supra, § 3566, at 292. At least five
circuits have adopted this view. See Planned
Parenthood of Houston and Southeast Tex. v.
Sanchez, 403 F.3d 324, 334 & n.47 (5th Cir. 2005);
Pharm. Research & Mfrs. of Am. v. Concannon, 249
F.3d 66, 73 (Ist Cir. 2001), affd sub nom. Pharm.
Research & Mfrs. of Am. v. Walsh, 538 U.S. 644
(2003); St. Thomas-St. John Hotel & Tourism Ass’n,
Inc. v. Gov't of U.S. Virgin Islands, 218 F.3d 232, 241
(3d Cir. 2000); Farricielli v. Holbrook, 215 F.3d 241,
245 (2d Cir. 2000); Guar. Nati Ins. Co. v. Gates, 916
F.2d 508, 511-512 (9th Cir. 1990).

That widespread understanding of the Court's
case law and settled practice make perfect sense in
light of the Court’s observation, in Green, 474 U.S. at

13

68, that “the availability of prospective relief of the
sort awarded in Ex parte Young gives life to the
Supremacy Clause.” In Green, the Court went on to
explain that “[r]jemedies designed to end a continuing
violation of federal law are necessary to vindicate tbe
federal interest in assuring the supremacy of that
law.” Ibid. (emphasis added). In other words, the
Supremacy Clause loses meaning if prospective relief
is unavailable to effectuate it. It therefore stands to
reason that the cause of action for prospective relief is
rooted in the Supremacy Clause itself.

B. The Court Should Reject Petitioners’
Efforts To Sow Doubt About, And To
Limit, This Important Cause Of Action
Based On Inapposite Case Law Involving
Either Section 1983 Or Implied Rights Of
Action Under Federal Statutes

In an effort to call into question a cause of action
that is “well-established” under this Court’s cases
(HART AND WECHSLER, supra, at 807), petitioners
advance various arguments. All are meritless.

First, petitioners seize on a single sentence from
Golden State Transit Corp. v. City of Los Angeles, 493
U.S. 103, 107 (1989), where the Court stated that the
Supremacy Clause “is not a source of any federal
rights” (internal quotation marks omitted). Pet. Br.
35. But that quotation—viewed in context—merely
clarifies that the Supremacy Clause does not create
federal rights under 42 U.S.C. § 1983. See Golden
State Transit Corp., 493 U.S. at 107 (agreeing with
the proposition that “the Supremacy Clause, of its
own force, does not create rights enforceable under §
1983’ (footnote omitted, emphasis added)). In any
event, the quotation is beside the point. Even if the

14

Supremacy Clause does not create “rights,” it does
create a “federal interest in assuring the supremacy
of [federal] law.” Green, 474 U.S. at 68. That interest
can be effectively vindicated only through the sort of
prospective relief that the Court has consistently
made available in cases like this.

Equally unavailing is petitioners’ argument that
no cause of action should be recognized in this case
because the Federal Medicaid Act itself neither
contains an implied cause of action nor gives rise to a
cause of action under Section 1983. Pet. Br. 22-26.
Contrary to petitioners’ submission, this Court’s
preemption decisions cannot be confined to the boun-
daries of the Court’s Section 1983 and implied-cause-
of-action jurisprudence.

This Court approaches preemption cases
differently from cases involving enforceable “rights”
under Section 1983 and implied rights of action under
federal statutes. As noted above, instead of applying
the frameworks it has developed for analyzing
implied statutory causes of action and Section 1983
claims, see Cort v. Ash, 422 U.S. 66, 78 (1975),
Gonzaga Univ. v. Doe, 536 U.S. 273, 282 (2002), the
Court simply proceeds to the merits in preemption
cases. See, e.g., Lorillard Tobacco Co. v. Reilly, 533
U.S. 525, 540 (2001); Crosby v. National Foreign
Trade Council, 530 U.S. 363, 372-73 (2000); Foster v.
Love, 522 U.S. 67, 70-72 (1997); Gade v. Natl Solid
Wastes Mgmt. Ass’n, 505 U.S. 88, 96 (1992).
Moreover, if the Court had applied those tests, in

3 While the Supremacy Clause is the most plausible source of
the preemption cause of action, other possibilities do exist. For
instance, the United States suggests that it may be rooted “in
the courts’ historical exercise of equitable powers.” U.S. Br. 20.

15

many preemption cases it would have found no cause
of action. See David Sloss, Constitutional Remedies
for Statutory Violations, 89 IOWA L. REV. 355, 391-98
(2004) (demonstrating that the federal statutes at
issue in Lorillard and Crosby did not create express,
implied, or Section 1983 causes of action).
Nevertheless, the Court routinely decides such cases
on the merits, making it clear that the Cort and
Gonzaga tests are simply inapposite.

This approach is entirely justified. The
preemption context is different in several crucial
respects from the Cort and Gonzaga contexts, making
_ different treatment not just rational but imperative.
For starters, the Cort and Gonzaga lines of cases
concern statutory causes of action (and, typically,
efforts to secure retrospective relief in the form of
compensatory or punitive damages). In that setting,
the Court was understandably deferential to
Congress in defining the precise contours of any
available remedy. See Transamerica Mortg.
Advisors, Inc. v. Lewis, 444 U.S. 11, 15 (1979) (noting
tuat “[t]he question whether a statute creates a cause
of action, either expressly or by implication, is
basically a matter of statutory construction”). By
contrast, the Supremacy Clause cause of action
vindicates the Constitutional interest in the
supremacy of federal law in the face of conflicting
state action; therefore, it is entirely appropriate for
the judiciary to take a more prominent role in
fashioning it. See also Santa Rosa Resp. Br. 22-26
(discussing the Court’s decisions recognizing claims
arising directly under various other provisions of the
Constitution without need of statutory
authorization).

16

Moreover, Section 1983 is targeted at a different
class of violations and provides a different set of
remedies. Unlike the Supremacy Clause cause of
action, which is limited to injunctive relief, Section
1983 allows for monetary damages. As a
consequence, the former is necessarily targeted at
ongoing or recurring violations, while the latter has
no such limitation. The two mechanisms, therefore,
have quite different functions: The Supremacy
Clause cause of action operates to prevent systemic
violations of federal law, while Section 1983 redresses
individual injuries in appropriate circumstances. See
Sloss, supra, at 413-15.

Finally, it should be noted that the Court’s
consistent concern with Congressional intent in the
statutory right of action context, see Cort, 422 U.S. at
78, Gonzaga, 536 U.S. at 280, actually militates in
favor of the Supremacy Clause cause of action.
Because the Court has consistently allowed private
parties to sue for injunctive relief against state
officers without a finding that the statute contains a
cause of action, Congress has had no reason to
provide for such lawsuits explicitly. See American
Natt Red Cross v. S.G., 505 U.S. 247, 252, 260 (1992)
(Congress is presumptively aware of settled backdrop
of existing law). Far from effectuating congressional
intent, petitioners’ position would § frustrate
Congress’s reliance on this well-established legal

regime.

17

II. THIS COURT'S ESTABLISHED APPROACH
FINDS SUPPORT IN THE HISTORY OF THE
SUPREMACY CLAUSE AND IS NECESSARY
TO EFFECTUATE ITS PURPOSE AND TO
BRING ABOUT THE SIGNIFICANT BENE-
FITS OF THE PREEMPTION DOCTRINE

The Court’s recognition of a cause of action for
prospective relief under the Supremacy Clause is
entirely consistent with the Clause’s original
meaning. A review of the history surrounding its
adoption reveals two crucial principles: (1) the
Framers entrusted the enforcement of federal
supremacy to the courts; and (2) they regarded the
Supremacy Clause as the means of effectively
accomplishing that objective. A state of affairs where
federal supremacy is flouted without recourse is
repugnant to the Supremacy Clause. The cause of
action for preemption actions is therefore essential.

A. The Framers Assigned The Principal
Responsibility To Enforce Federal
Supremacy To The Courts Rather Than
To Congress

The Supremacy Clause was intended to address
glaring shortcomings in the Articles of Confederation.
See Hughes v. Oklahoma, 441 U.S. 322, 325 (1979)
(the Framers believed that “to succeed, the new
Union would have to avoid the tendencies toward
economic Balkanization that had plagued relations

. among the States under the Articles of Con-
federation”). One legal scholar has aptly summarized
the shortcomings of the Articles of Confederation:

In the absence of something like the Supremacy
Clause, state courts might have sought to analo-

18

gize federal statutes to the laws of a foreign
sovereign, which they could ignore under prin-
ciples of international law.... [Moreover,] [t]he
Articles had not been ratified by conventions of
the people in each state; states had manifested
their assent merely by passing ordinary statutes
authorizing their delegates to sign the
Articles .... James Madison fretted that as a
result, “whenever a law of a State happens to be
repugnant to an act of Congress,” it “will be at
least questionable” which law should take priority

Caleb Nelson, Preemption, 86 VA. L. REV. 225, 247-48,
251 (2000) (quoting James Madison, Vices of the
Political System of the United States (Apr. 1787), in 9
PAPERS OF JAMES MADISON 345, 352 (R. Rutland & W.
Rachal eds. 1975)).

To address these structural deficiencies in the
Articles, the Framers included the Supremacy
Clause, which broadly provides that “the Laws of the
United States ... shall be the supreme Law of the
Land ... any Thing in the Constitution or Laws of
any State to the Contrary notwithstanding.” U.S.
CONST., art. VI, cl. 2 (emphasis added). By its terms,
the Supremacy Clause makes all federal laws
automatically preemptive of state and local laws to
the extent that the latter impose _ conflicting
obligations or requirements. It declares that federal
law “shall” be supreme, not that it “may” displace
inconsistent state and local regimes—that is, it states
an affirmative constitutional guarantee that federal
law will control; it is not a statement that federal law
has the mere potential to trump in case of conflict.

19

That affirmative guarantee reflects a deliberate
choice by the Framers. During the Constitutional
Convention, the Founders’ considered “three
mechanisms for resolving conflicts between federal!
and state law.” Bradford Clark, Separation of Powers
asa Safeguard of Federalism, 79 Tex. L. REv. 1321,
1348 (2001). Compare NGA Br. 14-19 (discussing
only two of the three mechanisms). Significantly for
present purposes, each of the three proposed
mechanisms relied on different institutions of
government to enforce the principle of federal
supremacy, each with markedly different conse-
quences for what the Clause would accomplish in
practice.

First, the Virginia (or Large State) Plan proposed
“authorizing the Union to use military force to coerce
the states to comply with federal law.” Bradford
Clark, Unitary Judicial Review, 72 GEO. WASH. L.
REV. 319, 325 (2003). This plan would have placed
authority in the hands of the Executive Branch. But
“(tlhe delegates were immediately opposed to the use
of force” and “[t]he Convention tabled the proposal
and never seriously entertained this alternative.” Id.
at 325-26 & nn.44-47.

Second, the Virginia Plan alternatively
recommended “that the National Legislature ought to
be impowered ... to negative all laws passed by the
several States, contravening in the opinion of the
National Legislature the articles of Union.” Madison,
Notes on the Constitutional Convention (May 29,
1787), in 1 THE RECORDS OF THE FEDERAL
CONVENTION OF 1787, at 21 (Max Farrand, ed. 1911)
(“FARRAND’S RECORDS”). Under this “congressional
negative” as originally proposed, Congress alone

20

would have had the power to “negative” all state laws
that, in Congress's judgment, violated the federal
Constitution. Importantly, the delegates apparently
envisioned the congressional negative (by analogy to
the Crown’s prerogative to approve Colonial laws) as
operating to prevent state laws from going into effect
until Congress acted (except in special
circumstances). Indeed, James Madison argued that
anything other than this powerful congressional
negative would be ineffective because it would allow
the States to “pass laws which will accomplish their
injurious objects before they can be repealed” by
Congress or invalidated by the federal courts. 2
FARRAND’S RECORDS 27.

Third, the New Jersey Plan included a resolution
that “was in substance and concept, if not in form,
similar to the current language of the Supremacy
Clause.” Viet Dinh, Reassessing the Law of
Preemption, 88 GEO. L.J. 2085, 2089 (2000). _ It
“would have required state courts (subject to federal
appellate review) to enforce the Laws of the United
States ... as ‘the supreme law of the respective
States.” Clark, supra, 72 GEO. WASH. L. REV. at 327
(quoting 1 FARRAND’S RECORDS 245).

The Convention initially approved the “con-
gressional negative” in its original form. Id. at 326.
But Charles Pinckney “moved to expand the
negative” by giving Congress the power to negate any
state law that Congress regarded as “improper”
(rather than merely contrary to the federal Constitu-
tion). At that point, the small-State delegates
strongly objected, and the Convention not only
rejected Pinckney’s proposal but also “subsequently
reconsidered and _ rejected even the _ original

21

congressional negative.” Jbid. The congressional
negative was unacceptable to a majority of States
because it “would have allowed Congress to determine
for itself the scope of its powers vis-a-vis the states.”
Ibid. (emphasis added).

“(T]he Convention subsequently adopted the
Clause immediately after rejecting the congressional!
negative.” Jd. at 327. In so doing, the Convention
rejected the arguments of James Madison (who had
been the primary drafter of the Virginia Plan) that
adoption of the congressional negative was “essential
to the efficacy & security of the Genl. Govt.” 2
FARRAND’S RECORDS 27. Disagreeing with Madison,
Gouverneur Morris explained that any “law that
ought to be negatived will be set aside in the
Judiciary departmt. and if that security should fail:
may be repealed by a Nationl. law.” Id. at 28
(emphasis added). Similarly, Roger Sherman argued
that the congressional negative was “unnecessary”
because the state courts “would not consider as valid
any law contravening the Authority of the Union, and
which the legislature would wish to be negatived.”
Id. at 27. ,

All of this makes clear that the Convention
delegates who opposed the congressional negative did
so because, among other things, they viewed it as
unnecessary once the Supremacy Clause had been
included in the Constitution. In other words, the
Supremacy Clause was viewed as an adequaie means
of addressing the problem the congressional negative
was meant to solve—namely, the possibility that
States would flout federal law. See The Federalist
No. 15 (Hamilton) (noting that “in practice [the
resolutions of the Continental Congress] are mere

22

recommendations which the States observe or
disregard at their option” (emphasis added)). The
Supremacy Clause was not understood as a mere
aspiration, but rather as an affirmative guarantee
that would accomplish this defining objective of the
constitutional scheme.

Furthermore, the Supremacy Clause assigned to
the courts in the first instance the duty to ensure that
state laws that were inconsistent with federal laws
would be accorded no effect (and thus preempted).
Indeed, the specific language of the Supremacy
Clause confirms the Framers’ intent that it be
enforced by the Judiciary. See U.S. CONST., art. VI,
cl. 2 (“This Constitution, and the Laws of the United
States ... and all Treaties ... 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.”).
The first clause establishes a hierarchy of federal law
and authority; the second is expressly directed at
“Judges.”

As for the third clause—‘any Thing in the
Constitution or Laws of any State to the Contrary
notwithstanding’—scholarship has established that
its form would have been understood by the Framers
(and late-Eighteenth-Century judges) as a so-called
“non obstante” clause. Such clauses were specifically
directed at courts and understood as a directive
concerning the rules of interpretation to apply to
federal statutes alleged to conflict with state law.
See Nelson, supra, 86 VA. L. REV. at 232, 235-44, 291-
303. The non obstante form of the Supremacy Clause,
then, confirms the Framers’ plan _ to vest
responsibility for interpreting and enforcing the

23

Supremacy Clause in the judiciary. /d. at 232, 245-
64.

In short, the Framers expected the Supremacy
Clause to prevent widespread defiance of federal law,
and they expected the courts to have primery
institutional responsibility for effectuating that
result. As respondents demonstrate, this expectation
was amply justified by the contemporary practice of
suits in equity to restrain officials from unauthorized
actions. Dominguez Resp. Br. 11-17. In allowing a
cause of action for prospective relief on the grounds of
preemption, this Court is simply facilitating and
performing the role assigned to the judiciary by the
Supremacy Clause—namely, preventing systematic
violations of federal law by state officials.

While petitioners and their amici acknowledge
that the Framers vested this responsibility in the
judiciary—and specifically rejected the congressional!
negative proposal—they fail to apprehend the
perverse consequence that rejecting a cause of action
for preemption would have. In the absence of such a
cause of action, asserting federal supremacy would
require congressional action. As illustrated by this
case (and the numerous examples detailed above),
there are numerous instances in which federal law
conflicts with state law but does not provide a
statutory cause of action or an individual “right”
within the ambit of 42 U.S.C. § 1983. Petitioners
- would require Congress to take affirmative action to
supply a means to assert federal supremacy, by
creating (or, in the case of § 1983, triggering) a cause
of action. Petitioners would, in short, require action
by the very institution (Congress) that the Framers
passed over before the courts could discharge their

24

assigned duties under the Supremacy Clause. That
is exactly backward.*

Indeed, many statutes do not expressly provide for
a private cause of action, and this Court has been
appropriately cautious in finding implied causes of
action and allowing statutory claims to be brought
under Section 1983. See Cort, 422 U.S. at 78;
Gonzaga Univ., 536 U.S. at 282. As noted above,
these statutory causes of action are necessarily
circumscribed by congressional intent. See Davis v.
Passman, 442 U.S. 228, 240-41 (1979) (noting that “it
is entirely appropriate” for Congress to determine
who may enforce statutes, and drawing a contrast
with the Constitution, where “the judiciary is clearly
discernible as the primary means” of enforcement).
This makes the statutory causes of action poorly
suited, however, to vindicate the Constitutional
interest in federal supremacy.

B. Petitioners’ Rule Would Harm Businesses
And Consumers And Undermine The
Significant Benefits Flowing From The
Preemption Doctrine

Preemption is a pervasive and highly beneficial
feature of our system of government. By virtue of the
Supremacy Clause and the doctrine of preemption
that flows directly from it, state and _ local
governments may not impose requirements that
conflict with federal law. Both Congress and
regulatory agencies also rely on preemption as a

* Relying on the Executive Branch to enforce the Supremacy
Clause (see Pet. Br. 44 n.15) similarly ignores the history of the
Supremacy Clause and the institutional choices made by the
Framers.

25

crucial tool in reducing or eliminating the burdens
that flow from multifarious (and even conflicting)
legal and regulatory requirements imposed by 50
States and thousands of municipal and _ local
governments. In significantly limiting the
effectiveness of federal preemption, petitioners’
position would undermine three crucial benefits that
flow from an effective preemption regime: (1)
promotion of regulatory uniformity; (2) promotion of a
unified national marketplace for goods and services;
and (3) enablement of national deregulatory policies.
These benefits reach far beyond the statutory scheme
at issue here.

1. Regulatory uniformity. Without the protection
of preemptive federal laws, companies may be subject
to inconsistent and indeed incompatible regulation by
thousands of state, municipal, and local entities. Not
surprisingly, Congress has repeatedly invoked the
benefits of regulatory “uniformity” in enacting
preemption provisions in a variety of settings—
especially with regard to nationally distributed
products. See, e.g., Federal Railroad Safety Act, 49
U.S.C. § 20106(a)(1) (““Laws, regulations, and orders
related to railroad safety ... shall be nationally
uniform to the extent practicable.”).

The principal advantages flowing from regulatory
uniformity are economic efficiencies in the manufac-
turing and distribution processes. As one commen-
tator has explained in describing the origins of the
preemption clause of the Nutrition Labeling and
Education Act of 1990, 21 U.S.C. § 343-1, “[p]reparing
different labeling, advertising, and food formulations
for different states is costly” and “[i]nconsistent
labeling laws can slow food manufacturing and

26

distribution, raise prices, and confuse consumers
confronted with different information and warnings.”
Michele Bradley, The States’ Role in Regulating Food
Labeling and Advertising: The Effect of the Nutrition
Labeling and Education Act of 1990, 49 FooD & DRUG
L.J. 649, 653 (1994). Modern manufacturing pro-
cesses and distribution networks must be altered,
and invariably are made less efficient, to account for
regulatory variations in the markets for which the
products are bound. This is further complicated
where the products themselves are mobile and apt to
be used in multiple jurisdictions. As a general
matter, then, regulatory uniformity has the effect of
decreasing the costs of production, distribution, and
regulatory compliance, and thus has the potential to
lower the price of goods and services for consumers.

2. Promotion of a unified national market. In
certain cases the costs of complying with a welter of
diverse or inconsistent regulatory requirements
become so large that manufacturers may elect either
not to serve particular markets at all or to “conform”
their products “with the most restrictive applicable
law.” Bradley, 49 Foop & DRUG L.J. at 654.5 In the

5 Commentators have recognized the possibility of this occurring
as a result of modern product liability litigation. Thus, as
Professor Michael McConnell has explained: “[S]tate-by-state
determination of the law of products liability seems to have
created a liability monster. This is because each state can
benefit in-state plaintiffs by more generous liability rules, the
costs being exported to largely out-of-state defendants; while no
state can do much to protect its in-state manufacturers from
suits by plaintiffs in the other states. Thus, competition among
the states in this arena leads to one-sidedly pro-plaintiff rules of
law.” Michael McConnell, Federalism: Evaluating the Founders’
Design, 54 U. CuI. L. REV. 1484, 1499 (1987); see also Michael
McConnell, A Choice-of-Law Approach to Products-Liability

27

latter scenario, the net result is that “[s]tate
enforcement activities” in several or even in a single
jurisdiction can have the extraterritorial effect of
“regulat([ing] . .. manufacturers nationally.” Ibid.

In enacting many preemption clauses, Conggess
appears to have acted out of a concern over the
potential burdens imposed on the national market—
and on interstate commerce—by divergent state and
local regulations. Thus, Congress has allowed for
limited waivers or exemptions from _ express
preemption schemes where state or local laws that do
“not unreasonably burden interstate commerce.”
Federal MRailroad Safety Act, 49 U.S.C.
§ 20106(a)(2)(C); see also Hazardous Materials
Transportation Act, 49 U.S.C. § 5125(e)(2); Consumer
Product Safety Act, 15 U.S.C. § 2075(c)(2). The desire
to protect interstate commerce against disparate
state rules also undergirds various preemption
clauses enacted by Congress to regulate the channels
and instrumentalities of interstate commerce (such
as trains, airplanes, trucks, boats, and cars). See,
e.g., Safety Appliance Acts, 49 U.S.C. §§ 20301-20306;
Locomotive Inspection Act, 49 U.S.C. §§ 20701-20703.

Preemption of divergent and _ potentially
conflicting state and local requirements thus plays an
important role in ensuring and protecting the
development of a unified national marketplace for
goods and services. Indeed, only through preemption
by the federal government may the problem of

Reform, in NEW DIRECTIONS IN LIABILITY LAW 90, 92 (Walter
Olson ed., 1988) (discussing the reasons why “the cost of a given
siate's liability laws, as they apply to mass-marketed products,
is borne by consumers nationwide’).

28

incompatible state and local commands be effectively
addressed and remedied.

3. Deregulation. Whenever the federal
government wishes to pursue a_i deregulatory
approach to some area of the economy, the federal
power to legislate preemptively is critically important.
Without such authority, a nationwide program of
deregulation will fall flat (except in the unlikely event
that there is nationwide unanimity). Accordingly,
this Court has recognized that “a federal decision to
forgo regulation in a given area may imply an
authoritative federal determination that the area is
best left unregulated, and in that event would have
as much pre-emptive force as a decision to regulate.”
Arkansas Electric Coop. Corp. v. Arkansas Public
Service Comm’n, 461 U.S. 375, 384 (1983). This
Court has applied that principle in various settings.
See, e.g., Ray v. Atlantic Richfield Co., 435 U.S. 151,
178 (1978) (holding preempted Washington state ban
on large oil tankers in Puget Sound).

Moreover, Congress has repeatedly decreed this
type of preemption under the federal labor laws. See
NLRB v. Nash-Finch Co., 404 U.S. 138, 144 (1971)
(“For a state to impinge on the area of labor combat
designed to be free is quite as much an obstruction of
federal policy as if the state were to declare picketing
free for purposes or by methods which the federal Act
prohibits.”) (internal quotation marks omitted);
Bethlehem Steel Co. v. New York State Labor
Relations Board, 330 U.S. 767, 774 (1947)
(preemption occurs “where failure of the federal
officials affirmatively to exercise their full authority
takes on the character of a ruling that no such

29

regulation is appropriate or approved pursuant to the
policy of the [federal labor] statute”).

Congress has also relied on this rationale in
enacting preemption provisions that target certain
modes of transportation. For example, the apély-
named Airline Deregulation Act of 1978 (ADA), which
regulates air carriers (49 U.S.C. § 41713(b)),
preempts state laws that regulate “price[s], route[s],
or service.” See Morales v. Trans World Airlines, 504
U.S. 374 (1992). In enacting that statute, “Congress’
overarching goal” was to “help[] assure trans-
portation rates, routes and services that reflect
‘maximum reliance on competitive market forces,’
thereby stimulating ‘efficiency, innovation, and low
prices,’ as well as ‘variety’ and ‘quality.” Rowe, 552
U.S. at 371 (quoting Morales, 504 U.S. at 378).
Congress has taken similar steps in deregulating the
trucking industry. See id. at 367-68.

In sum, a well-functioning preemption regime is
crucially important to businesses and consumers. By
preventing widespread disregard of federal law by
state officials, the Supremacy Clause cause of action
vindicates the Constitutional interest in federal
supremacy while also securing the considerable
benefits of uniform regulation, integrated markets,
and effective deregulation.

30

(il. PETITIONERS’ ATTEMPTS TO NARROW
THE CAUSE OF ACTION UNDER THE
SUPREMACY CLAUSE TO EXCLUDE THIS
CASE IMPROPERLY IMPORT CONCERNS
THAT ARE NOT GROUNDED IN THE
SUPREMACY CLAUSE, AND ARE APPRO-
PRIATELY ADDRESSED BY STANDING
RULES AND THE SUBSTANTIVE LAW OF
PREEMPTION

A. The Supremacy Clause Does Not Support
Petitioners’ Proposed Limitation, And
Standing Rules Ensure That Preemption
Lawsuits Are Brought, As Here, Only By
Appropriate Plaintiffs

Faced with the reality that this Court routinely
entertains preemption challenges by private parties,
petitioners and the United States struggle to limit
this line of authority in a way that would exclude the
present case. In addition to relying on inapposite
lines of cases involving Section 1983 and statutory
rights of action (see pages 13-16, supra), they contend
that, if the pertinent federal statute does not
specifically confer “rights” on private parties, then a
cause of action should be allowed only when
preemption is used “solely as a defense to state
regulation of a defendant’s (or putative defendant’s)
conduct.” Pet. Br. 44; see also U.S. Br. 22 (arguing
that the challenged regulations “do not regulate
respondents’ primary conduct”). This restriction is
not grounded in the Supremacy Clause, and, in any
event, it is both unnecessary and inconsistent with
the Court’s approach to preemption cases.

For starters, petitioners and the United States
provide virtually no support for this “prmmary

31

conduct” test, presumably because neither the text
nor the purpose of the Supremacy Clause admits of
such a limitation. By its terms, the Supremacy
Clause makes all federal law supreme—there is no
suggestion that only “federal affirmative rights” or
“federal defenses” have such force. The absence of
such a textual distinction is fully consistent with the
clause’s purpose, which was to guarantee the priority
of federal law across the board. See supra pp. 17-23.
Nothing in the Supremacy Clause itself suggests that
federal law only “sometimes” trumps inconsistent
state and local regimes.

Underlying petitioners’ proposed restriction is the
notion that such a test would somehow serve to
restrict the cause of action to an appropriate set of
plaintiffs. This function, however, is already
performed by standing doctrine. See Jndep. Living
Ctr. of S. California, Inc., 543 F.3d at 1057 (noting
that a similar argument made by the district court
appeared simply to “reflect traditional standing
doctrine”). The three “irreducible constitutional
minimum” elements of standing—injury in fact,
causation, and_ redressability—already enforce
appropriate limits on those who may assert a
constitutional interest in a preemption action. Steel
Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102-103
(1998) (internal quotation marks omitted).

In preemption cases, the injury-in-fact and
causation requirements ensure that suit can be
brought only by plaintiffs who have suffered a
concrete injury (such as the reductions in payments.
suffered by respondents in these cases) that is fairly
traceable to the defendants’ enforcement of allegedly
preempted laws (such as petitioners’ enforcement of

32

California’s rate reductions). Importantly, because
the Supremacy Clause cause of action is for
prospective relief (not retrospective relief such as
damages), plaintiffs can demonstrate redressability
only if their injury is either ongoing or likely to recur.
See City of Los Angeles v. Lyons, 461 U.S. 95, 105
(1983). This also tends to restrict preemption
lawsuits to cases like this one, where the plaintiffs
are (or, in the absence of injunctive relief, will be)
repeatedly and systematically injured by government
action they claim is in violation of federal law.

There is simply no indication that the Court
intended to restrict the class of potential preemption
plaintiffs any further than this. For example, there is
no reason to believe that when Shaw speaks of
“plaintiff[s] who seek[] injunctive relief from state
regulation,” it means to import a “primary conduct”
restriction that would exclude the respondents here,
who will suffer enormous financial losses and may
ultimately be forced to limit the availability of crucial
health services to beneficiaries. See Golden State
Transit Corp., 493 U.S. at 114 (Kennedy, J.,
dissenting) (explaining that an “injured party does
not need § 1983 to vest in him a right to assert that
an attempted exercise of jurisdiction or control
violates the proper distribution of powers within the
federal system” (emphasis added)).

This Court's recent decision in Rowe is a
particularly vivid illustration of the illogic of
petitioners’ position. The plaintiffs there were
transport carrier associations. They argued that two
provisions of Maine tobacco law were invalidated by
the Federal Aviation Administration Authorization
Act of 1994, which preempted state trucking

33

regulations. 552 U.S. at 367-68. One of these
provisions regulated carriers directly, by restricting
transport of tobacco into Maine. Id. at 369, 372. The
Court held that it was preempted. Jd. at 373. The
second provision, however, did not directly regulate
trucking; imstead, it directed the state’s toBacco
retailers to employ only those delivery services that
followed certain provisions. Jd. at 372. The Court
took note of this distinction: “We concede that the
regulation here is less ‘direct’ than it might be, for it
tells shippers what to choose rather than carriers
what to do.” Jbid. The Court went on, however, to
explain the distinction was without a difference:
“Nonetheless, the effect of the regulation is that
carriers will have to offer tobacco delivery services
that differ significantly from those that, in the
absence of the regulation, the market might dictate.
And that being so, treating sales restrictions and
purchase restrictions differently for pre-emption
purposes would make no sense.” Ibid. (emphasis
added, internal quotation marks omitted).

In other words, the direct and indirect regulations
were identical for preemption purposes, and there
was no reason to treat them differently. But
according to the petitioners, courts must treat them
differently for purposes of defining the preemption
cause of action. In petitioners’ world, the truckers in
Rowe would have had a cause of action with respect
to one provision but not the other, equally preempted
provision. That makes no sense: Indirect regulation
can be just as injurious to affected parties and just as
inimical to federal supremacy as direct regulation.
Accordingly, there is no justification for exempting
indirect regulation from preemption lawsuits.

34

- Whether Spending Clause Legislation
Should Be Treated Differently Is A
Question Of Preemption Doctrine

Petitioners’ final effort at restricting the scope of
the Supremacy Clause cause of action is their
contention that the cause of action disappears in the
Spending Clause context. See Pet. Br. 46. In
particular, petitioners maintain that, because
Spending Clause legislation resembles a contract, any
remedy for noncompliance must be supplied by the
“terms of the ... contract.” Jd. at 47. This argument
is confused conceptually and groundless doctrinally.
Its most basic defect, however, is that it is totally out
of place: It goes to whether there is preemption, not
to the existence of a cause of action to enforce the
Supremacy Clause.

Conceptually, the contract argument has little to
recommend it. “Conditional spending statutes are no
less ‘law’ than any other kind of federal legislation.”
Samuel Bagenstos, Spending Clause Litigation in the
Roberts Court, 58 DUKE L.J. 345, 391 (2008). The
Supremacy Clause itself certainly contains no
exception for laws enacted under the Spending
Clause. Even though Spending Clause statutes
impose obligations only on States that accept the
conditional offer of funds, “that fact does not make
their obligations any less binding (or any less a
product of ‘law’) than the obligations imposed by any
other federal statute.” Ibid. This Court’s
jurisprudence has been entirely consistent with this
principle. In particular, this Court has repeatedly
held that Spending Clause statutes preempt
inconsistent state legislation. See, e.g., Blum v.
Bacon, 457 U.S. 132, 138 (1982): Carleson v.

Remillard, 406 U.S. 598, 604 (1972). That is
precisely what petitioners claim cannot happen. Pet
Br. 47-48.

Moreover, while petitioners style this argument as
a question of whether the preemption cause of action
is available with respect to Spending Clause statutes,
really their argument is that Spending Clause
statutes are not preemptive. Indeed, petitioners give
the game away right off the bat by arguing that
“[p]rinciples of supremacy, and of preemption
generally, have no application to allegations that a
state has failed to satisfy a federal funding
condition.” Pet. Br. 46 (emphasis added); see also
U.S. Br. 21 (claiming that respondents use the term
preemption “in a rather special sense” (internal
quotation marks omitted)). Whether or not
preemption principles suggest that Spending Clause
statutes should be treated differently is simply a
question of the substantive law of preemption, to be
resolved on the merits. In other words, petitioners’
argument goes to the existence and extent of an
actual conflict between federal and state law
sufficient to trigger preemption. But the Supremacy
Clause cause of action does not leap in and out of
existence depending on whether the preemption
claim is ultimately successful—the existence of a
cause of action is logically antecedent to and
conceptually distinct from the merits. Nor does the
cause of action switch on and off depending on the
Constitutional provision under which the relevant
federal statute was enacted. If a statute is not
preemptive, the courts can and will make that
determination (by contrast, in this case, courts have
definitively ruled that the relevant state and federal
laws do stand in conflict). There is no reason to

36

anticipate that scenario by creating carve-outs in the
Supremacy Clause cause of action.

Notably, this was precisely the approach taken by
seven Members of the Court in Pharm. Research &
Mfrs. of Am. v. Walsh, 538 U.S. 644 (2003). Although
seven Justices split 4-3 over the question of whether
the Medicaid Act preempted Maine’s rebate program,
id. at 661-668, 669-74, 682-90, all seven recognized
that this was properly a preemption issue—none
questioned the availability of the private cause of
action. There is no reason for the Court to adopt any
other approach to this case.

CONCLUSION

The judgment of the Ninth Circuit should be
affirmed.

Respectfully submitted.

ROBIN S. CONRAD ALAN UNTEREINER

KATE COMERFORD TODD Counsel of Record

SHELDON GILBERT MARK T. STANCIL

National Chamber ALEX POTAPOV

Litigation Center, Inc. Robbins, Russell, Englert, Orseck,
1615 H Street, N.W. Untereiner & Sauber LLP
Washington, D.C. 20062 1801 K Street, NW, Suite 411
(202) 463-5337 Washington, D.C. 20006

(202) 775-4500
auntereiner@robbinsrussell.com

August 5, 2011

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA43085015_0578%3A24. Public record. Not legal advice.