The June 26 ruling allowing South Carolina to get away with kicking Planned Parenthood out of Medicaid is based on a troubling new presumption—and includes an even more alarming concurrence.
Wish Marshall maxim would be followed that every right has a remedy, but that would mean SCOTUS jurists that see, recognize, and facilitate equality. We only have 3.
Isn't it also an extraordinary turn around that just two years ago, in Health and Hospital Corporation v. Talevski, the Court upheld 7-2 the enforceability by patients' 1983 actions of the Federal Nursing Home Reform Act's (part of Medicaid) protections of patients' against restraints and transfers. The very same spending clause argument was found unpersuasive there as a reason to find no enforceable right in the statute. Gorsuch joined the Court opinion by Jackson, and in a short concurrence that no one joined, noted that a factor unmentioned by others -- whether the rights were not just clearly stated, but also secured "as against the states." Now he seems to have gotten the whole conservative wing of the Court to act based on that fuzzy distinction.
“hubristic and senseless” is a wonderful polite summation of much of what is wrong with the Conservative justices. Sadly, there is so very much more wrong with the Conservative justices.
It cannot be a coincidence that almost every single SCOTUS majority ruling not only aligns with what the Trump Administration and MAGA-led states are doing, but with everything that the neo-confederates throughout Trump’s brain-trust at the Federalist Society and Heritage Foundation want to do going forward.
I’d be interested in having references to analyses that trace not just the origins and sources of this SCOTUS majority’s calculated recasting of our constitutional order, but where all of this recasting will land us?
Is this about recasting the United States into something more like the European Union? That sure seems possible. Or is it about simply stripping the Congress and the lower-courts and blue states of their roles and powers in anything but a formalistic/ceremonial way so as to provide for the unitary executive and the imperial presidency (modeled on the criminal syndicate) to quickly emerge and consolidate power?
Let's say a future Congress wanted to tackle this. Could they write a statutory rule that flipped the presumption, such that a private right of action is presumed to enforce federal statutes, unless stated otherwise? And if it tried some kind of blanket rule, would that be vulnerable to the SCOTUS saying that it exceeded Congressional power, yadda yadda yadda, under the 14th Amendment or what-not?
I remember that during the EMTALA emergency abortion case last year, Alito and Thomas (and maybe Barrett?) made a suggestion that Spending Clause legislation couldn’t give private parties rights that would preempt State criminal law, based on this contract notion. Effectively, how could state criminal laws be invalid based on a contract between a private party and the Federal Government, to which the State wasn’t a party?
To me that argument was very alarming, and I was disappointed no one else smacked it down. I think the answer is obvious. The contract imposes a duty on a private party running in favor of the Federal Government. A State can’t interfere with a a private party’s duty to the Federal Government. Applying the Idaho abortion statute if EMTALA required an abortion in a a Medicaid hospital would be equivalent to applying a state contract law to void a contract between a private party and the Federal Government. It would obviously be preempted. Spending Clause laws are not contracts, and I hate the Court accepting the suggestion that they are.
Realize this isn't the usual forum for federalism nerds to chime in, but isn't "cooperative federalism" part of the problem here? The federal government should directly administer the program or the states should. Not "both" in a confusing muddle.
"Finally, invoking the contract framing allows the Court to duck the entirely obvious point—that the intended beneficiaries of Medicaid aren’t the states, but the patients and providers who participate in the program. Suggesting that Congress bears an especially heavy burden when it comes to providing for private enforcement of a statute like Medicaid allows the Court to completely ignore the context in which—and for whose benefit—that statute was enacted. Instead, the focus becomes whether the states (as the counterparties to the “contract”) were fully on notice as to the conditions to which they were agreeing. That framing necessarily tilts the scales fairly dramatically in favor of states even in cases in which they are unquestionably violating the underlying spending condition. That’s … a troubling precedent, and one that will reduce the availability of redress when states violate federal spending power statutes going forward—perhaps even incentivizing those violations in cases in which federal government enforcement is unlikely."
In this 42 USC 1983 context, Justice Thomas seems to be repeating the Eeyore view of things he imposed in his opinion for the court in Bruen (the concealed carry permit gun case), requiring that proponents of Second Amendment exceptions point to a historical analog in support of them. The rest of the justices thankfully drew back from that strict approach in Rahimi (the domestic violence order gun case), leaving Thomas alone in dissent. Let's hope they take the same view of his suggestion here.
Well, at least the rest of Americans now understand (including, based on the comments here) what it feels like to have a SCt that, in their view, is just making it up to serve a particular policy agenda. Today, the result is putting limits on “rights;” for most of the time since WW II, it was creating “rights” from Constitutional penumbras and the personal policy impulses of Justices. As this history reveals, smart lawyers can make almost any result seem legally defensible. What comes around . . . .
I was depressed when Medina was handed down, and didn't really want to read your confirmation that there was cause to be discouraged. But I did, and was suitably depressed. What can we do, other than write letters to retiring Republicans asking them to use that decision to free themselves to vote their conscience?
Wish Marshall maxim would be followed that every right has a remedy, but that would mean SCOTUS jurists that see, recognize, and facilitate equality. We only have 3.
Isn't it also an extraordinary turn around that just two years ago, in Health and Hospital Corporation v. Talevski, the Court upheld 7-2 the enforceability by patients' 1983 actions of the Federal Nursing Home Reform Act's (part of Medicaid) protections of patients' against restraints and transfers. The very same spending clause argument was found unpersuasive there as a reason to find no enforceable right in the statute. Gorsuch joined the Court opinion by Jackson, and in a short concurrence that no one joined, noted that a factor unmentioned by others -- whether the rights were not just clearly stated, but also secured "as against the states." Now he seems to have gotten the whole conservative wing of the Court to act based on that fuzzy distinction.
“hubristic and senseless” is a wonderful polite summation of much of what is wrong with the Conservative justices. Sadly, there is so very much more wrong with the Conservative justices.
It cannot be a coincidence that almost every single SCOTUS majority ruling not only aligns with what the Trump Administration and MAGA-led states are doing, but with everything that the neo-confederates throughout Trump’s brain-trust at the Federalist Society and Heritage Foundation want to do going forward.
I’d be interested in having references to analyses that trace not just the origins and sources of this SCOTUS majority’s calculated recasting of our constitutional order, but where all of this recasting will land us?
Is this about recasting the United States into something more like the European Union? That sure seems possible. Or is it about simply stripping the Congress and the lower-courts and blue states of their roles and powers in anything but a formalistic/ceremonial way so as to provide for the unitary executive and the imperial presidency (modeled on the criminal syndicate) to quickly emerge and consolidate power?
And if neither of these, then what?
This Medina decision portends bad things from this corrupt Court. It’s very unnerving.
You describe § 1983 as "the modern ancestor of a key provision of the Civil Rights Act of 1871." Do you mean descendant, rather than ancestor?
Is there a way to see the letter from Justice Jackson without a paid Box subscription?
Can you try accessing it again? I changed the security settings (which were wrong).
It works now, thx!
States rights only when Trump and Roberts court agree?
Let's say a future Congress wanted to tackle this. Could they write a statutory rule that flipped the presumption, such that a private right of action is presumed to enforce federal statutes, unless stated otherwise? And if it tried some kind of blanket rule, would that be vulnerable to the SCOTUS saying that it exceeded Congressional power, yadda yadda yadda, under the 14th Amendment or what-not?
"My dad. Bruce Vladeck was the Administration of the Health Care Financing Administration"
Impressive. Just him, huh?
Sigh. Fixed.
I remember that during the EMTALA emergency abortion case last year, Alito and Thomas (and maybe Barrett?) made a suggestion that Spending Clause legislation couldn’t give private parties rights that would preempt State criminal law, based on this contract notion. Effectively, how could state criminal laws be invalid based on a contract between a private party and the Federal Government, to which the State wasn’t a party?
To me that argument was very alarming, and I was disappointed no one else smacked it down. I think the answer is obvious. The contract imposes a duty on a private party running in favor of the Federal Government. A State can’t interfere with a a private party’s duty to the Federal Government. Applying the Idaho abortion statute if EMTALA required an abortion in a a Medicaid hospital would be equivalent to applying a state contract law to void a contract between a private party and the Federal Government. It would obviously be preempted. Spending Clause laws are not contracts, and I hate the Court accepting the suggestion that they are.
AP reports just now, SCOTUS clears Trump to
fire 1,400 Dept.of Education people. 😪
Realize this isn't the usual forum for federalism nerds to chime in, but isn't "cooperative federalism" part of the problem here? The federal government should directly administer the program or the states should. Not "both" in a confusing muddle.
"Finally, invoking the contract framing allows the Court to duck the entirely obvious point—that the intended beneficiaries of Medicaid aren’t the states, but the patients and providers who participate in the program. Suggesting that Congress bears an especially heavy burden when it comes to providing for private enforcement of a statute like Medicaid allows the Court to completely ignore the context in which—and for whose benefit—that statute was enacted. Instead, the focus becomes whether the states (as the counterparties to the “contract”) were fully on notice as to the conditions to which they were agreeing. That framing necessarily tilts the scales fairly dramatically in favor of states even in cases in which they are unquestionably violating the underlying spending condition. That’s … a troubling precedent, and one that will reduce the availability of redress when states violate federal spending power statutes going forward—perhaps even incentivizing those violations in cases in which federal government enforcement is unlikely."
In this 42 USC 1983 context, Justice Thomas seems to be repeating the Eeyore view of things he imposed in his opinion for the court in Bruen (the concealed carry permit gun case), requiring that proponents of Second Amendment exceptions point to a historical analog in support of them. The rest of the justices thankfully drew back from that strict approach in Rahimi (the domestic violence order gun case), leaving Thomas alone in dissent. Let's hope they take the same view of his suggestion here.
Well, at least the rest of Americans now understand (including, based on the comments here) what it feels like to have a SCt that, in their view, is just making it up to serve a particular policy agenda. Today, the result is putting limits on “rights;” for most of the time since WW II, it was creating “rights” from Constitutional penumbras and the personal policy impulses of Justices. As this history reveals, smart lawyers can make almost any result seem legally defensible. What comes around . . . .
It's not just penumbras; it's penumbras formed by emanations. Who can argue with that?
🎯
I was depressed when Medina was handed down, and didn't really want to read your confirmation that there was cause to be discouraged. But I did, and was suitably depressed. What can we do, other than write letters to retiring Republicans asking them to use that decision to free themselves to vote their conscience?