A popular sport among U.S. Supreme Court watchers is finding a seemingly minor decision and explaining how it actually has profound implications for the country. Simon Lazarus’ recent piece, "‘Supreme Law’—for Medicaid Patients or Just Business?," is a model of the form, purporting to show the profound import of Wos v. E.M.A. But sometimes a case involving "a granular, brow-furrowing question about the federal Medicaid statute" (his words) does little more than resolve a conflict among the lower courts on that "granular, brow-furrowing question."Contrary to Mr. Lazarus’ assertions, Wos did not resolve any of the important and interesting issues left open by the court last term in Douglas v. Independent Living Center.
Douglas v. Independent Living Center was a federal courts professor’s dream, implicating profound questions about the source of private causes of action, the meaning of Ex parte Young actions and the nature of the supremacy clause.The issue was this: Various Medicaid providers and beneficiaries filed suit in federal court alleging that three California statutes reducing state Medicaid payments violated §(30)(A) of the Medicaid Act, which purportedly required the state to "enlist enough providers" to make Medicaid "care and services" sufficiently available. There was a hitch, though. The U.S. Court of Appeals for the Ninth Circuit had previously held that §(30)(A) did not create any rights that were privately enforceable, either through an implied right of action or under §1983.(And the plaintiffs did not contend otherwise.) Where, then, did the plaintiffs’ right of action come from? They argued that the supremacy clause itself creates a right of action through which private parties can challenge state laws as pre-empted by federal law. And they contended that Ex parte Young actions have long been brought to enforce the superiority of federal law.The Ninth Circuit agreed.
Among California’s many arguments in response, the key one was that congressional intent controls. Congress decides who, if anyone, may enforce a federal statute’s mandates. And Congress did not intend that §(30)(A) be privately enforced – which is why the provision is not enforceable under §1983. As Chief Justice John Roberts Jr. explained in his dissent, "to say that there is a federal statutory right enforceable under the Supremacy Clause, when there is no such right in the statute itself, would effect a complete end-run around this Court’s implied right of action and 42 U.S.C. §1983 jurisprudence." Congress intended that the Centers for Medicare & Medicaid Services (CMS) enforce §(30)(A); it makes no sense to override that intent through the supremacy clause, "which simply ensures that the rule established by Congress controls."
In the end, of course, Independent Living Center did not resolve this issue. The four dissenting justices agreed with California, but a five-justice majority punted. After oral argument in the case, CMS approved California’s plan amendment that implemented the reductions contained in its statutes. The Independent Living Center majority therefore vacated the Ninth Circuit’s earlier decision and remanded to allow that court to assess in the first instance whether CMS’s action bears on the right-of-action issue.
Which brings us, finally, to Wos v. E.M.A. Wos was a §1983 action brought by a child and her parents alleging that a North Carolina statute violated the Medicaid Act’s anti-lien provision. The high court, by a 6-3 vote, agreed with them and held that the state law was pre-empted.(I’ll skip over the "granular, brow-furrowing" details.)Mr. Lazarus claims that the high court thereby answered the question it left open in Independent Living Center and adopted the Independent Living Center plaintiffs’ position that the supremacy clause authorizes private pre-emption actions to enforce spending clause provisions that are not otherwise privately enforceable. It did no such thing.
Recall that Independent Living Center addressed a federal provision that did not create any rights privately enforceable under §1983.The question was whether the provision could nonetheless be privately enforced under the supremacy clause. Wos, by contrast, was a § 1983 action. North Carolina never disputed that the Medicaid Act’s anti-lien provision creates privately enforceable rights. The Independent Living Center issue was therefore never in play. E.M.A. and her parents did not have to resort to the supremacy clause for a right of action because § 1983 provided it.The concerns expressed by Roberts’ Independent Living Center dissent were not implicated.
For this reason, Mr. Lazarus is also mistaken when he contends that the solicitor general’s amicus brief supporting E.M.A. implicitly "repudiated" his predecessor’s amicus brief supporting California in Independent Living Center. The solicitor general’s brief in Independent Living Center argued that the court should defer to Congress’ intent to vest sole enforcement authority over §30(A) to CMS. No one in Wos contended that Congress vested sole enforcement authority over the anti-lien provision to CMS.
The most that can be said of Wos is that the court declined to adopt an intriguing argument put forth in the 11-state amicus brief authored by Texas. Texas argued that the Medicaid Act cannot pre-empt state law because the act "does not obligate the States to do anything"—it merely "offer[s] annual reimbursement to States that comply with[its] conditions." For this reason, "[a] State that departs from the Medicaid Act’s reimbursement criteria does not even violate federal law, let alone deprive any person of federally protect ‘rights’ under 42 U.S.C. §1983."Yet the Court in Wos did not question E.M.A.’s right to proceed with her case.
Even here, however, it is a mistake to read too much into Wos. As a general rule, the court does not address issues that were not raised or decided by the lower courts. And as a general rule, the court does not address issues pressed only by an amicus. The Texas argument discussed above falls within both rules. Moreover, the court does not decide major issues sub silentio. Mr. Lazarus’ contention that the court definitively rejected Texas’ argument is nothing more than wishful thinking.
The writer is Supreme Court counsel of the National Association of Attorneys General.