166. Medina, 42 U.S.C. § 1983, and the Spending Clause

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.

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Every Monday morning, I’ll be offering an update on goings-on at the Court (“On the Docket”); and we’ll usually have a longer introduction to some feature of the Court’s history, current issues, or key players (“The One First ‘Long Read’”); and some Court-related trivia. If you’re not already a subscriber, I hope you’ll consider becoming one—and upgrading to a paid subscription if your circumstances permit:

I promised in a previous issue to spend some time with the Court’s June 26 (merits docket) ruling in Medina v. Planned Parenthood of South Carolina. In that case, a 6-3 majority (the usual one), in an opinion by Justice Gorsuch, held that the “any-qualified-provider” provision of the Medicaid statute can’t be privately enforced in suits brought under 42 U.S.C. § 1983. In the process, the Court effectively held that this key provision of the Medicaid statute, which is meant to bar states from discriminating against medical providers by requiring coverage for services from “any qualified provider,” can’t actually be enforced by anyone except the federal government—which, for reasons I’ll elaborate upon below, both can’t and won’t ever enforce it itself.

In this case, the upshot is that South Carolina’s clearly unlawful refusal to allow Planned Parenthood to participate in its state Medicaid program (for non-reproductive rights services) goes unremedied. But the even bigger issue is the different analytical steps Justice Gorsuch’s majority opinion takes to get there. Along the way, the Court articulated a new presumption that statutes enacted under Congress’s spending power must be especially clear that they can be enforced by private parties before such enforcement will be allowed. That’s problematic enough in the abstract; it is even more so in light of the sweeping cuts to the Medicaid program that President Trump just signed into law, cuts that are likely to trigger even more violations by states no longer able to satisfy all of the statute’s requirements. But Justice Thomas’s solo concurrence augurs an even more troubling reconceptualization of 42 U.S.C. § 1983 itself—one that could have massive consequences not just for the enforcement of federal statutory rights, but for rights conferred by the Constitution, as well.

Medina may not have gotten the most headlines of any of this term’s merits-docket cases. But in the long run, we may well look back at it as the most important merits ruling of the term.

But first, the news.

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On the Docket

Last week saw exactly two rulings from the Court—both of which came on significant emergency applications.

On Wednesday, the Court granted the Trump administration’s request to freeze a district court injunction in the mass reductions-in-force (RIFs) case—and to put back into place a joint memorandum issued by the Office of Management and Budget and the Office of Presidential Personnel implementing President Trump’s downsizing executive order. The Court’s brief and unsigned order asserts that “the Government is likely to succeed on its argument that the Executive Order and Memorandum are lawful,” albeit without explaining why (ditto the “other factors bearing on whether to grant a stay,” which the Court says “are satisfied” without identifying or saying how).

The unsigned order in Trump v. American Federation of Government Employees then goes out of its way to “express no view on the legality of any Agency RIF and Reorganization Plan produced or approved pursuant to the Executive Order and Memorandum.” In other words, the Court unfroze the government-wide mandate to gear up for mass RIFs, but it’s leaving open the possibility that challenges to agency-specific plans can succeed—as Justice Sotomayor emphasized in a brief concurring opinion.

Justice Jackson once again dissented, arguing that the majority was, yet again, usurping the proper role and function of district courts in a case in which development of the factual record may well make a big difference—and in which the risk of irreparable harm should have tilted decisively in favor of the district court’s injunction. As she put it, the majority’s decision “is not only truly unfortunate but also hubristic and senseless.” Just how big a deal the ruling ends up being may depend upon what happens with one of the still-pending applications from the Trump administration—blocking the agency-specific restructuring plan for the Department of Education.

The only other full Court action last week came on Thursday—when, over no noted dissents, the Court summarily denied Florida’s application to put back into effect provisions of a new state law that purports to creates state-law analogues to a pair of federal immigration crimes. Those provisions, which are almost certainly preempted by federal immigration law (especially while Arizona v. United States remains on the books) will remain on hold for now.

Turning to this week, as noted above, the Court is still sitting on the federal government’s application for relief in McMahon v. New York—which has been fully briefed since June 16(!). Briefing is also now complete on the most recent emergency application from the Department of Justice—seeking to clear the way for President Trump to remove without cause members of the Consumer Product Safety Commission. We could, quite obviously, get decisions in one or both of those cases this week—or not. Nothing formal is due from the Court until the first set of summer housekeeping orders, which we expect next Monday (July 21).

Finally, in Supreme Court clerk-related news, I’ve been asked to post a copy of the letter that Justice Jackson provides to those looking for information about applying to clerk in her chambers. Each justice keeps their own counsel about their clerkship hiring practices, but it sure seems like the more information that’s out there about how interested folks can apply, the better.

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The One First “Long Read”: Funky Cold Medina

I’ve written before about the myriad ways in which the Supreme Court has made it more difficult for private parties to enforce federal statutes—especially those that don’t expressly create a “cause of action.” The technical nature of these disputes often obscures their broader significance—because the result can be a whole set of federal rights that end up being practically unenforceable.

One area where this trend has been especially significant—and troubling—has involved lawsuits under 42 U.S.C. § 1983, the modern descendant of a key provision of the Civil Rights Act of 1871, which for the first time sought to open federal courthouse doors to claims that local or state government actors had violated federal rights. § 1983 is not a right unto itself; rather, it creates its own cause of action (that is, a specific authorization for lawsuits) to vindicate existing federal constitutional or statutory rights against anyone acting “under color of state law”—which, one might think, means litigants can use it to enforce federal rights that don’t have their own private enforcement mechanisms. Indeed, that’s still how it works for constitutional claims.

For a long time, that’s also how it worked for claims to enforce various provisions of the Medicaid statute—enacted in 1965 at a time when the Court was not nearly as demanding of Congress when it came to providing express causes of action. Indeed, as former HHS officials have argued in a series of amicus briefs over the years (more on those in the trivia, below),¹ private enforcement is essential to enforcing the Medicaid statute—for at least two reasons: First, the federal government typically lacks the wherewithal to monitor how each of the 56 different state Medicaid plans are complying with the hundreds of procedural and substantive requirements imposed by federal law.²

Second, even if it wanted to enforce those provisions itself, the only remedy available to the federal government is to cut off Medicaid funds—a remedy that would be even worse for Medicaid beneficiaries than the underlying violations of the act. The whole point of Medicaid is to make it worth the states’ while to provide medical care to those without the means of paying for it themselves. Indeed, depending on the state, the federal government ends up covering somewhere between 50% and 5/6 of the state’s Medicaid bill (and an even higher percentage for those made eligible for Medicaid by the Affordable Care Act). If states lose that incentive, they’ll just stop providing that care. (For a good example of all of this in action, here’s a 2002 ruling by the en banc Third Circuit allowing enforcement via § 1983 of Medicaid’s equal access provision, written by then-Judge Samuel Alito.)

But in Gonzaga University v. Doe in 2002, a case argued by John Roberts, the Supreme Court took a serious bite out of § 1983—holding that § 1983 could not be used to enforce federal statutes unless there was some evidence that Congress intended for those statutes to be privately enforceable. In other words, as Justice Stevens pointed out in his dissent, the Gonzaga Court effectively imported the Court’s then-emerging hostility to implied private rights of action into a context in which Congress had provided an express cause of action—requiring Congress to do more than just create a “right,” but to create a right that was meant to be privately enforced. Whatever the merits of holding Congress to such a burden going forward, it’s especially exasperating to hold pre-2002 statutes, enacted when Congress couldn’t have known it had to satisfy that test, to such a standard.

Even still, against that backdrop, Medina could have been a relatively straightforward case—the Court could simply have held that the Medicaid provision at issue (which requires states to allow beneficiaries to use “any qualified provider”) doesn’t meet its post-Gonzaga standard for private enforcement under § 1983. But the majority opinion goes further in one critical respect—and Justice Thomas suggests he may go even further in another.

I. The Majority Opinion and the Force of Spending Clause Statutes

First, in Part II-B of the majority opinion, Justice Gorsuch argues that “Though it is rare enough for any statute to confer an enforceable right, spending-power statutes like Medicaid are especially unlikely to do so.” That’s because, according to Gorsuch, statutes enacted pursuant to Congress’s spending power are more like contracts than they are ordinary legislation—and, like any contract, they should be presumptively un-enforceable by third-party beneficiaries.

This argument has been kicking around since a 2001 district court decision known as Westside Mothers—and it’s been heavily criticized almost since then, for several reasons. First, Congress doesn’t pick and choose which of its powers its using when it enacts legislation. Indeed, there are numerous Supreme Court cases holding that a statute that is not a valid exercise of one of Congress’s regulatory powers (like the power to enforce Section 1 of the Fourteenth Amendment) may be a valid exercise of its other powers. The upshot is that Congress doesn’t—and by all accounts never has—approached its legislative powers differently depending upon which of its powers it thought it was exercising. Holding Congress to a different standard for whether a right is enforceable under the spending power versus any other statute presupposes that Congress draws distinctions amongst its enumerated powers in legislating that it just doesn’t—and never has.

Second, however much exercises of the spending power might look like contracts, they’re not in some pretty fundamental ways. The Supremacy Clause of the Constitution treats all “laws of the United States” equally, reflecting, among other things, the reality that violations of those laws, especially by state actors, are violations of federal supremacy. To treat such statutes as akin to contracts is to allow one party to violate those statutes with impunity until and unless the other party decides to contest the violation—something that’s especially problematic when you consider that a future President may have little interest in enforcing the terms of a bargain entered into by a previous Congress. Indeed, this reading of the spending power gives a heck of a lot of power to presidents at the expense of Congress, and to states at the expense of the federal government.

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.

It is certainly true, as Justice Gorsuch notes multiple times in the majority opinion, that the Court had previously nodded toward this view in prior decisions. But Medina is the first time that a majority of the Court has specifically held that provisions of statutes enacted pursuant to Congress’s spending power must be especially clear that they intend private enforcement before they can be enforced through § 1983. That’s a very big deal, especially for statutes Congress has already enacted—even if the writing might have been on the wall.

II. Justice Thomas and the Purpose(s) of § 1983

As I teach my Federal Courts students every year, for as much as the Court has made it more difficult to use § 1983 to enforce federal statutes, it is still a frequent (and critically important) mechanism for enforcing the Constitution against state or local officers. The majority opinion in Medina doesn’t do anything overtly to undermine that practice, but Justice Thomas’s concurrence suggests that maybe the Court should.

Specifically, Justice Thomas calls for a “fundamental reexamination of our § 1983 jurisprudence” because, in his view, the “history of § 1983 makes clear that the statute has exceeded its original limits.” In Thomas’s view, suits under § 1983 may only be available to enforce rights that would’ve been understood as “rights” when the statute was enacted in 1871. As Congress and the Supreme Court have taken a more expansive view of what can count as a “right,” in other words, Thomas is arguing that § 1983 wouldn’t allow for enforcement of those protections. (The point is not that § 1983 can’t be used to enforce rights recognized after 1871; it is that the right has to be the kind of legal protection that would have counted as a “right” when the statute was first enacted.)

Of course, Thomas’s concurrence is only on behalf of a single justice. But as problematic as it is to make it harder for a range of important federal statutes to be enforced through § 1983, limiting the broader understanding of which “rights” can be enforced through that provision at all could have potentially massive ramifications for the ability of victims of constitutional violations by local or state officers to obtain redress—especially for violations that have ended, where damages under § 1983 are often the only available legal remedy (injunctive relief to halt ongoing violations raises a different set of questions).

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Justice Thomas wrote that he thinks only that the Court should “consider” the scope of § 1983 in a future case. But re-opening the scope of a statute that has long served as perhaps the primary means of ensuring fidelity to the federal Constitution by local and state officers would be a profoundly fraught maneuver, as Justice Jackson points out at the end of her lengthy dissent on behalf of herself and Justices Sotomayor and Kagan. Medina is a big enough deal for what it portends for enforcing federal statutes enacted under the spending power; needless to say, it would be even more important if it portends a reconsideration of enforcing constitutional rights against local and state government officers writ large. Either way, the result is to make federal rights that all agree exist (and that most agree have been violated by the relevant government actor) that much harder to enforce. In Marbury v. Madison, Chief Justice Marshall famously invoked the Latin maxim "ubi jus ibi remedium" (for every right there is a remedy). That really hasn’t ever been true in the U.S. federal courts; and it’s getting less true by the year.

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SCOTUS Trivia: Me and My Dad

Medina is just the latest in a slew of cases the Supreme Court has had over the last 13 years raising questions about how different provisions of the Medicaid statute can (and, usually, can’t) be enforced. I’ve always found these cases fascinating from a Federal Courts perspective, but there’s also a more personal reason for my interest: My dad. Bruce Vladeck was the Administrator of the Health Care Financing Administration (the agency now known as CMS) from 1993–97 (this is why, even though I grew up in New York, I went to high school in Silver Spring, MD). Dad’s the one non-lawyer in his family (both of his parents were lawyers; both of his siblings are lawyers; two of his three kids … well, you get the picture). Instead, he’s a political scientist by training, and one of the leading national experts on health care financing (and the author of a really important 1980 book, Unloving Care, on the plight of nursing homes in the United States and the public policy failures that helped to create those conditions.) But even as a teenager, it was hard not to be drawn in, even involuntarily, to the mid-1990s debates over health care reform.

Anyway, the trivia piece of this is that, because it was the one place where our professional interests most directly overlapped, dad and I have always jumped at chances to work together on Medicaid enforcement questions—dating back to the very first of these cases, Douglas v. Independent Living Centers of Southern California, in 2012. (The brief in Douglas came about after the Department of Justice during the Obama administration controversially rejected the position taken by its own Department of Health and Human Services.) Among other things, that gave us an excuse to write an op-ed together; to file a series of amicus briefs on behalf of former HHS officials in which he was one of my “clients”; and so on.

It’s pretty cool to have had the chance to work on Supreme Court-related issues with my non-lawyer dad. The trickier part, as it turns out, has been getting the Court to listen. :-)

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1. I was co-counsel on each of the former HHS officials’ briefs—including the brief in Medina.

2. In case you blinked at the number “56,” there are “state” Medicaid plans for each of the 50 states and each of the six inhabited federal territories.