Anthony Kennedy, what are you thinking?

Photographer: Win McNamee/Getty Images

What Do You Mean, I Can't Sue My State?

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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When your state breaks federal law in a way that affects you, can you sue in federal court to make it do the right thing? On Tuesday, the U.S. Supreme Court made doing so substantially harder. In a case involving private health-care providers in Idaho, the justices held that the health workers can’t sue Idaho -- even though the state was paying them less than required under federal Medicaid law.

If this sounds weird to you, the fault isn’t yours. The problem lies with the version of federalism that underlies the 5-4 decision. Justice Antonin Scalia, who wrote the court’s controlling opinion, bent over backward to say that the Constitution shouldn’t be read to provide an automatic right to sue your state when it violates federal law. Then he over-read the Medicaid statute to say that it actually prohibits the workers from suing their state -- even though all it says is that the Department of Health and Human Services is authorized to enforce the law against a state, not that private parties can’t enforce the law as well.

Let’s start with the juicy part: the Constitution. The supremacy clause of the Constitution says that the Constitution itself and federal laws enacted pursuant to it “shall be the supreme law of the land” and must be enforced by state courts, notwithstanding any state-law provisions to the contrary.

The U.S. Court of Appeals for the Ninth Circuit, which considered the health workers' argument before it reached the Supreme Court, reasoned that the supremacy clause guarantees you the right to go to a federal judge and demand that the state be ordered to follow federal law. In legal jargon, this is called a private right of action. The idea is that you, a private party, have the right to get into court and file a legal action.

As far as the Ninth Circuit was concerned, this right to get into court was implicit in the idea that federal law is supreme over state law. After all, if the state can violate federal law and you can’t do anything about it, in what sense is federal law really supreme?

Scalia rejected this view. In a part of his opinion that was joined by four other justices, and thus is a binding opinion of the court, he said that the supremacy clause doesn’t create any special right to get into court. It just says that if Congress gives you a way to get into court, then you’ll win once you get there.

As a matter of technical constitutional law, Scalia’s view is plausible. But in the real world, it’s certainly wrongheaded. Congress shouldn’t have to say that you have the right to go to federal court to make the state follow federal law.

In a carefully written dissent, Justice Sonia Sotomayor explained that federal courts have the inherent authority to order state officials to follow federal law. That authority has been exercised for well over a century.

Sotomayor conceded that the supremacy clause doesn’t guarantee you the right to get into court. In her view, Congress can choose to block access to the federal courts -- which it wouldn’t be able to do if the Constitution guaranteed access. I’m not at all sure she should have made this concession. Why should Congress have the authority under the Constitution to block parties from going to court to enforce the Constitution itself? But I have to admit that there is a respectable school of constitutional scholarship that thinks Congress can do just that -- even if it seems very troubling to me.

In any case, Sotomayor was striving to make the point that judicial enforcement of federal law should be the norm, not the exception. Scalia strongly hinted that the norm should run the other way.

Then, in the less interesting part of the opinion, Scalia said that the Medicaid statute implicitly prohibits private lawsuits against states -- because the law authorizes HHS to do the enforcing. The remaining conservative justices, less Anthony Kennedy, joined this part of the opinion. The decisive fifth vote came from Justice Stephen Breyer, a former administrative law professor who loves agencies and was pen to the idea that the agency possesses the sole authority to enforce the law against the states. On this point, too, Sotomayor dissented.

The puzzle here is Kennedy. In the 1990s, Kennedy wrote the opinion for the Federalist conservatives in an important 5-4 case known as Alden v. Maine. In it, Kennedy made it harder for individuals to sue states for monetary damages in federal court. There are technical differences that would allow Kennedy to reconcile the votes. But the thought remains: Is Kennedy’s staunch federalism softening as he veers further and further into liberal territory, as he likely will in the gay-rights cases to come in June?

(Corrects 12th paragraph, which originally stated that Justice Anthony Kennedy wrote the opinion in two Supreme Court cases, Seminole Tribe and Alden v. Maine. Kennedy did not write the Seminole Tribe opinion.)

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor on this story:
Brooke Sample at bsample1@bloomberg.net