Douglas v. Independent Living Center of Southern California, Inc. , 132 S. Ct. 1204 ( 2012 )

(Slip Opinion) OCTOBER TERM, 2011 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
DOUGLAS, DIRECTOR, CALIFORNIA DEPARTMENT
OF HEALTH CARE SERVICES v. INDEPENDENT
LIVING CENTER OF SOUTHERN CALIFORNIA,
INC., ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 09–958. Argued October 3, 2011—Decided February 22, 2012*
Medicaid is a cooperative federal-state program that provides medical
care to needy individuals. To qualify for federal funds, a State must
submit its Medicaid plan and any amendments to the federal agency
that administers the program, the Centers for Medicare & Medicaid
Services (CMS). Before approving a plan or amendments, CMS con-
ducts a review to determine whether they comply with federal re-
quirements. Federal law requires state plans or amendments to “as-
sure that payments are consistent with efficiency, economy, and
quality of care and are sufficient to enlist enough providers” to make
Medicaid “care and services” available. 42 U. S. C. §1396a(a)(30)(A).
After California enacted three statutes reducing the State’s pay-
ments to various Medicaid providers, the State submitted plan
——————
* Together with No. 09–1158, Douglas, Director, California Depart-
ment of Health Care Services v. California Pharmacists Association
et al., Douglas, Director, California Department of Health Care Services
v. California Hospital Association et al. (see this Court’s Rule 12.4),
Douglas, Director, California Department of Health Care Services v.
Independent Living Center of Southern California, Inc., et al. (see this
Court’s Rule 12.4), Douglas, Director, California Department of Health
Care Services v. Dominguez, By and Through her Mother and Next
Friend Brown, et al. (see this Court’s Rule 12.4); and No. 10–283, Doug-
las, Director, California Department of Health Care Services v. Santa
Rosa Memorial Hospital et al., also on certiorari to the same court.
2 DOUGLAS v. INDEPENDENT LIVING CENTER OF
SOUTHERN CAL., INC.
Syllabus
amendments to CMS. Before the agency finished its review, Medi-
caid providers and beneficiaries sought, in a series of cases, to enjoin
the rate reductions on the ground that they were pre-empted by fed-
eral Medicaid law. In seven decisions, the Ninth Circuit ultimately
affirmed or ordered preliminary injunctions preventing the State
from implementing its statutes. The court (1) held that the providers
and beneficiaries could bring a Supremacy Clause action; (2) essen-
tially accepted their claim that the State did not show that its
amended plan would provide sufficient services; (3) held that the
amendments thus conflicted with §1396a(a)(30)(A); and (4) held that
the federal statute pre-empted the new state laws. In the meantime,
agency officials disapproved the amendments, and California sought
further administrative review. The cases were in this posture when
the Court granted certiorari to decide whether respondents could
mount a Supremacy Clause challenge. After oral argument, CMS
approved several of the State’s amendments, and the State withdrew
its requests for approval of the remainder.
Held: The judgments are vacated and the cases are remanded, thereby
permitting the parties to argue before the Ninth Circuit in the first
instance the question whether respondents may maintain Supremacy
Clause actions now that CMS has approved the state statutes. Pp.
5–8.
(a) CMS’ approval does not make these cases moot, but it does put
them in a different posture, since the federal agency charged with
administering Medicaid has now found that the rate reductions com-
ply with federal law. That decision does not change the substantive
question whether California’s statutes are consistent with federal
law, but it may change the answer. It may also require respondents
to seek review of CMS’ determination under the Administrative Pro-
cedure Act (APA) rather than in a Supremacy Clause action against
California. The APA would likely permit respondents to obtain an
authoritative judicial determination of the merits of their legal claim.
And their basic challenge now presents the kind of legal question or-
dinarily calling for APA review. The Medicaid Act commits to a fed-
eral agency the power to administer a federal program, and the agen-
cy has exercised that authority. As CMS is comparatively expert in
the statute’s subject matter, its decision carries weight. And
§1396a(a)(30)(A)’s broad and general language suggests that CMS’
expertise is relevant in determining the provision’s application. Fi-
nally, to allow a Supremacy Clause action to proceed once CMS has
reached a decision threatens potential inconsistency or confusion.
The Ninth Circuit declined to give weight to the Federal Govern-
ment’s interpretation of the federal law, but courts are ordinarily re-
quired to apply deference standards to agency decisionmaking. The
Cite as: 565 U. S. ____ (2012) 3
Syllabus
parties suggest no reasons why such standards should not be applied
here or why, now that CMS has acted, a court should reach a differ-
ent result in an APA action than in a Supremacy Clause action. That
would make the Supremacy Clause challenge at best redundant.
Permitting it to continue would seem inefficient, for the federal agen-
cy is not a participant in the action, which will decide whether
agency-approved state rates violate federal law. Pp. 5–8.
(b) Given the present posture of the cases, the Court does not ad-
dress whether the Ninth Circuit properly recognized a Supremacy
Clause action to enforce the federal law before the agency took final
action. To decide whether these cases may proceed under the Su-
premacy Clause now that the agency has acted, it will be necessary
on remand to consider at least the matters addressed by this Court.
P. 8.
No. 09–958, 572 F. 3d 644 (first judgment), 342 Fed. Appx. 306 (second
judgment), No. 09–1158, 596 F. 3d 1098, 563 F. 3d 847, 374 Fed.
Appx. 690, 596 F. 3d 1087, and No. 10–283, 380 Fed. Appx. 656, va-
cated and remanded.
BREYER, J., delivered the opinion of the Court, in which KENNEDY,
GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. ROBERTS, C. J., filed a
dissenting opinion, in which SCALIA, THOMAS, and ALITO, JJ., joined.
Cite as: 565 U. S. ____ (2012) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 09–958, 09–1158, and 10–283
_________________
TOBY DOUGLAS, DIRECTOR, CALIFORNIA DE-
PARTMENT OF HEALTH CARE SERVICES,
PETITIONER
09–958 v.
INDEPENDENT LIVING CENTER OF SOUTHERN
CALIFORNIA, INC., ET AL.
TOBY DOUGLAS, DIRECTOR, CALIFORNIA DE-
PARTMENT OF HEALTH CARE SERVICES,
PETITIONER
09–1158 v.
CALIFORNIA PHARMACISTS ASSOCIATION ET AL.
TOBY DOUGLAS, DIRECTOR, CALIFORNIA DE-
PARTMENT OF HEALTH CARE SERVICES,
PETITIONER
10–283 v.
SANTA ROSA MEMORIAL HOSPITAL ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[February 22, 2012]
JUSTICE BREYER delivered the opinion of the Court.
We granted certiorari in these cases to decide whether
Medicaid providers and recipients may maintain a cause
of action under the Supremacy Clause to enforce a federal
Medicaid law—a federal law that, in their view, conflicts
2 DOUGLAS v. INDEPENDENT LIVING CENTER OF
SOUTHERN CAL., INC.
Opinion of the Court
with (and pre-empts) state Medicaid statutes that reduce
payments to providers. Since we granted certiorari, how-
ever, the relevant circumstances have changed. The fed-
eral agency in charge of administering Medicaid, the Cen-
ters for Medicare & Medicaid Services (CMS), has now
approved the state statutes as consistent with the federal
law. In light of the changed circumstances, we believe
that the question before us now is whether, once the agen-
cy has approved the state statutes, groups of Medicaid
providers and beneficiaries may still maintain a Suprem-
acy Clause action asserting that the state statutes are
inconsistent with the federal Medicaid law. For the rea-
sons set forth below, we vacate the Ninth Circuit’s judg-
ments and remand these cases for proceedings consistent
with this opinion.
I
A
Medicaid is a cooperative federal-state program that
provides medical care to needy individuals. To qualify
for federal funds, States must submit to a federal agency
(CMS, a division of the Department of Health and Human
Services) a state Medicaid plan that details the nature and
scope of the State’s Medicaid program. It must also sub-
mit any amendments to the plan that it may make from
time to time. And it must receive the agency’s approval of
the plan and any amendments. Before granting approval,
the agency reviews the State’s plan and amendments to
determine whether they comply with the statutory and
regulatory requirements governing the Medicaid program.
See 42 U. S. C. §§1316(a)(1), (b), 1396a(a), (b); 42 CFR
§430.10 et seq. (2010); Wilder v. Virginia Hospital Assn.,
496 U. S. 498, 502 (1990). And the agency’s director has
specified that the agency will not provide federal funds for
any state plan amendment until the agency approves the
amendment. See Letter from Timothy M. Westmoreland,
Cite as: 565 U. S. ____ (2012) 3
Opinion of the Court
Director, Center for Medicaid & State Operations, Health
Care Financing Admin., U. S. Dept. of Health and Human
Servs., to State Medicaid Director (Jan. 2, 2001), online at
http://www.cms.gov/SMDL/downloads/SMD010201.pdf (as
visited Feb. 17, 2012, and available in Clerk of Court’s case
file).
The federal statutory provision relevant here says that a
State’s Medicaid plan and amendments must:
“provide such methods and procedures relating to the
utilization of, and the payment for, care and services
available under the plan . . . as may be necessary to
safeguard against unnecessary utilization of such care
and services and to assure that payments are con-
sistent with efficiency, economy, and quality of care
and are 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.” 42
U. S. C. §1396a(a)(30)(A) (emphasis added).
B
In 2008 and 2009, the California Legislature passed
three statutes changing that State’s Medicaid plan. The
first statute, enacted in February 2008, reduced by 10%
payments that the State makes to various Medicaid pro-
viders, such as physicians, pharmacies, and clinics. See
2007–2008 Cal. Sess. Laws, 3d Extraordinary Sess. ch. 3,
§§14, 15. The second statute, enacted in September 2008,
replaced the 10% rate reductions with a more modest set
of cuts. See 2008 Cal. Sess. Laws ch. 758, §§45, 57. And
the last statute, enacted in February 2009, placed a cap on
the State’s maximum contribution to wages and benefits
paid by counties to providers of in-home supportive ser-
vices. See 2009–2010 Cal. Sess. Laws, 3d Extraordinary
Sess. ch. 13, §9.
In September and December 2008, the State submitted
4 DOUGLAS v. INDEPENDENT LIVING CENTER OF
SOUTHERN CAL., INC.
Opinion of the Court
to the federal agency a series of plan amendments de-
signed to implement most of the reductions contained in
these bills. Before the agency finished reviewing the
amendments, however, groups of Medicaid providers and
beneficiaries filed a series of lawsuits seeking to enjoin the
rate reductions on the ground that they conflicted with,
and therefore were pre-empted by, federal Medicaid law,
in particular the statutory provision that we have just
set forth. They argued that California’s Medicaid plan
amendments were inconsistent with the federal provision
because the State had failed to study whether the rate
reductions would be consistent with the statutory factors
of efficiency, economy, quality, and access to care. In
effect, they argued that California had not shown that its
Medicaid plan, as amended, would “enlist enough provid-
ers” to make Medicaid “care and services” sufficiently
available. 42 U. S. C. §1396a(a)(30)(A).
The consolidated cases before us encompass five law-
suits brought by Medicaid providers and beneficiaries
against state officials. Those cases produced seven deci-
sions of the Court of Appeals for the Ninth Circuit. See
572 F. 3d 644 (2009); 342 Fed. Appx. 306 (2009); 596 F. 3d
1098 (2010); 563 F. 3d 847 (2009); 374 Fed. Appx. 690(2010); 596 F. 3d 1087 (2010); and 380 Fed. Appx. 656(2010). The decisions ultimately affirmed or ordered
preliminary injunctions that prevented the State from im-
plementing its statutes. They (1) held that the Medi-
caid providers and beneficiaries could directly bring an
action based on the Supremacy Clause; (2) essentially
accepted the claim that the State had not demonstrated
that its Medicaid plan, as amended, would provide suffi-
cient services; (3) held that the amendments consequently
conflicted with the statutory provision we have quoted;
and (4) held that, given the Constitution’s Supremacy
Clause, the federal statute must prevail. That is to say,
the federal statute pre-empted the State’s new laws.
Cite as: 565 U. S. ____ (2012) 5
Opinion of the Court
In the meantime, the federal agency was also reviewing
the same state statutes to determine whether they satis-
fied the same federal statutory conditions. In November
2010, agency officials concluded that they did not sat-
isfy those conditions, and the officials disapproved the
amendments. California then exercised its right to further
administrative review within the agency. The cases were
in this posture when we granted certiorari to decide
whether respondents could mount a Supremacy Clause
challenge to the state statutes and obtain a court injunc-
tion preventing California from implementing its statutes.
About a month after we heard oral argument, the feder-
al agency reversed course and approved several of Califor-
nia’s statutory amendments to its plan. See Letter from
Donald M. Berwick, Administrator, CMS, to Toby Douglas,
Director, Cal. Dept. of Health Care Servs. (Oct. 27, 2011);
Letter from Larry Reed, Director, Division of Pharmacy,
Disabled and Elderly Health Programs Group, CMS, to
Toby Douglas, Director, Cal. Dept. of Health Care Servs.
(Oct. 27, 2011). In doing so, the agency also approved a
limited retroactive implementation of some of the amend-
ments’ rate reductions. The State, in turn, withdrew its
requests for approval of the remaining amendments, in
effect agreeing (with one exception) that it would not seek
to implement any unapproved reduction. See Letter from
Michael E. Kilpatrick, Assistant Chief Counsel, Cal. Dept.
of Health Care Servs., to Benjamin R. Cohen, Director,
Office of Hearings, CMS (Oct. 27, 2011). (The exception
consists of one statute for which California has submitted
no amendment and which, by its own terms, cannot take
effect unless and until this litigation is complete, see 2010
Cal. Sess. Laws ch. 725, §25.)
II
All parties agree that the agency’s approval of the en-
joined rate reductions does not make these cases moot.
6 DOUGLAS v. INDEPENDENT LIVING CENTER OF
SOUTHERN CAL., INC.
Opinion of the Court
For one thing, the providers and beneficiaries continue to
believe that the reductions violate the federal provision,
the agency’s view to the contrary notwithstanding. For
another, federal-court injunctions remain in place, forbid-
ding California to implement the agency-approved rate
reductions. And, in light of the agency’s action, California
may well ask the lower courts to set those injunctions
aside.
While the cases are not moot, they are now in a different
posture. The federal agency charged with administering
the Medicaid program has determined that the challenged
rate reductions comply with federal law. That agency
decision does not change the underlying substantive ques-
tion, namely whether California’s statutes are consistent
with a specific federal statutory provision (requiring that
reimbursement rates be “sufficient to enlist enough pro-
viders”). But it may change the answer. And it may
require respondents now to proceed by seeking review of
the agency determination under the Administrative Pro-
cedure Act (APA), 5 U. S. C. §701 et seq., rather than in an
action against California under the Supremacy Clause.
For one thing, the APA would likely permit respondents
to obtain an authoritative judicial determination of the
merits of their legal claim. The Act provides for judicial
review of final agency action. §704. It permits any person
adversely affected or aggrieved by agency action to obtain
judicial review of the lawfulness of that action. §702. And
it requires a reviewing court to set aside agency action
found to be “arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law.” §706(2)(A).
For another thing, respondents’ basic challenge now
presents the kind of legal question that ordinarily calls for
APA review. The Medicaid Act commits to the federal
agency the power to administer a federal program. And
here the agency has acted under this grant of authority.
That decision carries weight. After all, the agency is
Cite as: 565 U. S. ____ (2012) 7
Opinion of the Court
comparatively expert in the statute’s subject matter. And
the language of the particular provision at issue here is
broad and general, suggesting that the agency’s expertise
is relevant in determining its application.
Finally, to allow a Supremacy Clause action to proceed
once the agency has reached a decision threatens potential
inconsistency or confusion. In these cases, for example,
the Ninth Circuit, in sustaining respondents’ challenges,
declined to give weight to the Federal Government’s inter-
pretation of the federal statutory language. (That view
was expressed in an amicus curiae brief that the United
States submitted in prior litigation.) See Independent
Living Center of Southern Cal., Inc. v. Maxwell-Jolly, 572
F. 3d 644, 654 (CA9 2009) (referring to the United States’
certiorari-stage invitation brief in Belshe v. Orthopaedic
Hospital, 522 U. S. 1044 (1998) (denying writ of certiora-
ri)). And the District Court decisions that underlie injunc-
tions that now forbid California to implement its laws may
rest upon similar analysis.
But ordinarily review of agency action requires courts
to apply certain standards of deference to agency deci-
sionmaking. See National Cable & Telecommunications
Assn. v. Brand X Internet Services, 545 U. S. 967 (2005)
(describing deference reviewing courts must show); Chev-
ron U. S. A. Inc. v. Natural Resources Defense Council,
Inc., 467 U. S. 837 (1984) (same). And the parties have
not suggested reasons why courts should not now (in the
changed posture of these cases) apply those ordinary
standards of deference.
Nor have the parties suggested reasons why, once the
agency has taken final action, a court should reach a
different result in a case like this one, depending upon
whether the case proceeds in a Supremacy Clause action
rather than under the APA for review of an agency deci-
sion. Indeed, to permit a difference in result here would
subject the States to conflicting interpretations of federal
8 DOUGLAS v. INDEPENDENT LIVING CENTER OF
SOUTHERN CAL., INC.
Opinion of the Court
law by several different courts (and the agency), thereby
threatening to defeat the uniformity that Congress in-
tended by centralizing administration of the federal pro-
gram in the agency and to make superfluous or to under-
mine traditional APA review. Cf. Astra USA, Inc. v. Santa
Clara County, 563 U. S. ___, ___ (2011) (slip op., at 2)
(noting that the treatment of lawsuits that are “in sub-
stance one and the same” “must be the same, ‘[n]o matter
the clothing in which [plaintiffs] dress their claims’ ” (quot-
ing Tenet v. Doe, 544 U. S. 1, 8 (2005)). If the two kinds of
actions should reach the same result, the Supremacy
Clause challenge is at best redundant. And to permit the
continuation of the action in that form would seem to be
inefficient, for the agency is not a participant in the pend-
ing litigation below, litigation that will decide whether the
agency-approved state rates violate the federal statute.
III
In the present posture of these cases, we do not address
whether the Ninth Circuit properly recognized a Suprem-
acy Clause action to enforce this federal statute before the
agency took final action. To decide whether these cases
may proceed directly under the Supremacy Clause now
that the agency has acted, it will be necessary to take
account, in light of the proceedings that have already
taken place, of at least the matters we have set forth
above. It must be recognized, furthermore, that the par-
ties have not fully argued this question. Thus, it may be
that not all of the considerations that may bear upon the
proper resolution of the issue have been presented in the
briefs to this Court or in the arguments addressed to and
considered by the Court of Appeals. Given the complexity
of these cases, rather than ordering reargument, we va-
cate the Ninth Circuit’s judgments and remand the cases,
thereby permitting the parties to argue the matter before
that Circuit in the first instance.
It is so ordered.
Cite as: 565 U. S. ____ (2012) 1
ROBERTS, C. J., dissenting
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 09–958, 09–1158, and 10–283
_________________
TOBY DOUGLAS, DIRECTOR, CALIFORNIA DE-
PARTMENT OF HEALTH CARE SERVICES,
PETITIONER
09–958 v.
INDEPENDENT LIVING CENTER OF SOUTHERN
CALIFORNIA, INC., ET AL.
TOBY DOUGLAS, DIRECTOR, CALIFORNIA DE-
PARTMENT OF HEALTH CARE SERVICES,
PETITIONER
09–1158 v.
CALIFORNIA PHARMACISTS ASSOCIATION ET AL.
TOBY DOUGLAS, DIRECTOR, CALIFORNIA DE-
PARTMENT OF HEALTH CARE SERVICES,
PETITIONER
10–283 v.
SANTA ROSA MEMORIAL HOSPITAL ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[February 22, 2012]
CHIEF JUSTICE ROBERTS, with whom JUSTICE SCALIA,
JUSTICE THOMAS, and JUSTICE ALITO join, dissenting.
The Medicaid Act established a collaborative federal-
state program to assist the poor, elderly, and disabled in
obtaining medical care. The Act is Spending Clause legis-
2 DOUGLAS v. INDEPENDENT LIVING CENTER OF
SOUTHERN CAL., INC.
ROBERTS, C. J., dissenting
lation; in exchange for federal funds a State agrees to
abide by specified rules in implementing the program.
One of those rules is set forth in §30(A) of the Act, which
requires States to meet particular criteria in establishing
Medicaid reimbursement rates for those providing services
under the Act. 42 U. S. C. §1396a(a)(30)(A). In 2008 and
2009, California enacted legislation reducing the rates at
which it would compensate some providers. Certain pro-
viders and individuals receiving Medicaid benefits thought
the new reimbursement rates did not comply with the
criteria set forth in §30(A). They sued the State to prevent
the new rates from going into effect.
But those plaintiffs faced a significant problem: Nothing
in the Medicaid Act allows providers or beneficiaries
(or anyone else, for that matter) to sue to enforce §30(A).
The Act instead vests responsibility for enforcement
with a federal agency, the Centers for Medicare & Medicaid
Services (CMS). See, e.g., 42 U. S. C. §1316(a)(1). That is
settled law in the Ninth Circuit. See Sanchez v. Johnson,
416 F. 3d 1051, 1058–1062 (2005) (“[T]he flexible, admin-
istrative standards embodied in [§30(A)] do not reflect a
Congressional intent to provide a private remedy for their
violation”). And it is the law in virtually every other cir-
cuit as well. See, e.g., Long Term Care Pharmacy Alli-
ance v. Ferguson, 362 F. 3d 50, 57–59 (CA1 2004) (holding
that it would be inconsistent with this Court’s precedent to
find that §30(A) creates rights enforceable by private
parties). The respondents have never argued the contrary.
Thus, as this case comes to us, the federal rule is that
Medicaid reimbursement rates must meet certain criteria,
but private parties have no statutory right to sue to en-
force those requirements in court.
The providers and beneficiaries sought to overcome that
difficulty by arguing that they could proceed against the
State directly under the Supremacy Clause of the Consti-
tution, even if they could not do so under the Act. They
Cite as: 565 U. S. ____ (2012) 3
ROBERTS, C. J., dissenting
contended that the new state reimbursement rates were
inconsistent with the requirements of §30(A). The Su-
premacy Clause provides that a federal statute such as
§30(A) preempts contrary state law. Therefore, the pro-
viders and beneficiaries claimed, they could sue to enforce
the Supremacy Clause, which requires striking down the
state law and giving effect to §30(A). The Ninth Circuit
agreed with this argument and blocked the new state
reimbursement rates.
During briefing and argument in this case, the parties
have debated broad questions, such as whether and when
constitutional provisions as a general matter are directly
enforceable. It is not necessary to consider these larger
issues. It is not even necessary to decide whether the
Supremacy Clause can ever provide a private cause of
action. The question presented in the certiorari petitions
is narrow: “Whether Medicaid recipients and providers
may maintain a cause of action under the Supremacy
Clause to enforce [§30(A)] by asserting that the provision
preempts a state law reducing reimbursement rates.” To
decide this case, it is enough to conclude that the Suprem-
acy Clause does not provide a cause of action to enforce
the requirements of §30(A) when Congress, in establishing
those requirements, elected not to provide such a cause of
action in the statute itself.
The Supremacy Clause operates differently than other
constitutional provisions. For example, if Congress says in
a law that certain provisions do not give rise to a taking
without just compensation, that obviously does not resolve
a claim under the Takings Clause that they do. The Su-
premacy Clause, on the other hand, is “not a source of any
federal rights.” Chapman v. Houston Welfare Rights
Organization, 441 U. S. 600, 613 (1979); accord, Dennis v.
Higgins, 498 U. S. 439, 450 (1991) (contrasting, in this
regard, the Supremacy Clause and the Commerce Clause).
The purpose of the Supremacy Clause is instead to ensure
4 DOUGLAS v. INDEPENDENT LIVING CENTER OF
SOUTHERN CAL., INC.
ROBERTS, C. J., dissenting
that, in a conflict with state law, whatever Congress says
goes. See The Federalist, No. 33, p. 205 (C. Rossiter ed.
1961) (A. Hamilton) (the Supremacy Clause “only declares
a truth which flows immediately and necessarily from the
institution of a federal government”).
Thus, if Congress does not intend for a statute to supply
a cause of action for its enforcement, it makes no sense to
claim that the Supremacy Clause itself must provide one.
Saying that there is a private right of action under the
Supremacy Clause would substantively change the federal
rule established by Congress in the Medicaid Act. That is
not a proper role for the Supremacy Clause, which simply
ensures that the rule established by Congress controls.
Indeed, to say that there is a federal statutory right
enforceable under the Supremacy Clause, when there is no
such right under the pertinent statute itself, would effect
a complete end-run around this Court’s implied right of
action and 42 U. S. C. §1983 jurisprudence. We have em-
phasized that “where the text and structure of a statute
provide no indication that Congress intends to create
new individual rights, there is no basis for a private suit,
whether under §1983 or under an implied right of action.”
Gonzaga Univ. v. Doe, 536 U. S. 273, 286 (2002). This
body of law would serve no purpose if a plaintiff could
overcome the absence of a statutory right of action simply
by invoking a right of action under the Supremacy Clause
to the exact same effect. Cf. Astra USA, Inc. v. Santa
Clara County, 563 U. S. ___, ___ (2011) (slip op., at 7)
(rejecting contention that contract incorporating statutory
terms could be enforced in private action when statute
itself could not be; “[t]he absence of a private right to
enforce the statutory ceiling price obligations would be
rendered meaningless if [contracting] entities could over-
come that obstacle by suing to enforce the contract’s ceil-
ing price obligations instead”).
The providers and beneficiaries argue, however, that the
Cite as: 565 U. S. ____ (2012) 5
ROBERTS, C. J., dissenting
traditional exercise of equity jurisdiction supports finding
a direct cause of action in the Supremacy Clause. This
contention fails for the same reason. It is a longstand-
ing maxim that “[e]quity follows the law.” 1 J. Pomeroy,
Treatise on Equity Jurisprudence §425 (3d ed. 1905). A
court of equity may not “create a remedy in violation of
law, or even without the authority of law.” Rees v. Water-
town, 19 Wall. 107, 122 (1874). Here the law established
by Congress is that there is no remedy available to private
parties to enforce the federal rules against the State. For
a court to reach a contrary conclusion under its general
equitable powers would raise the most serious concerns
regarding both the separation of powers (Congress, not
the Judiciary, decides whether there is a private right of
action to enforce a federal statute) and federalism (the
States under the Spending Clause agree only to conditions
clearly specified by Congress, not any implied on an ad hoc
basis by the courts).
This is not to say that federal courts lack equitable
powers to enforce the supremacy of federal law when such
action gives effect to the federal rule, rather than con-
travening it. The providers and beneficiaries rely heavily
on cases of this kind, most prominently Ex parte Young,
209 U. S. 123 (1908). Those cases, however, present quite
different questions involving “the pre-emptive assertion in
equity of a defense that would otherwise have been avail-
able in the State’s enforcement proceedings at law.” Vir-
ginia Office for Protection and Advocacy v. Stewart, 563
U. S. ___, ___ (2011) (KENNEDY, J., concurring) (slip op., at
1). Nothing of that sort is at issue here; the respondents
are not subject to or threatened with any enforcement
proceeding like the one in Ex parte Young. They simply
seek a private cause of action Congress chose not to
provide.
6 DOUGLAS v. INDEPENDENT LIVING CENTER OF
SOUTHERN CAL., INC.
ROBERTS, C. J., dissenting
* * *
The Court decides not to decide the question on which
we granted certiorari but instead to send the cases back to
the Court of Appeals, because of the recent action by CMS
approving California’s new reimbursement rates. But the
CMS approvals have no impact on the question before this
Court. If, as I believe, there is no private right of action
under the Supremacy Clause to enforce §30(A), that is the
end of the matter. If, on the other hand, the Court be-
lieves that there is such a cause of action, but that CMS’s
recent rate approvals may have an effect on that action
going forward, then the Court should say just that and
then remand to the Ninth Circuit for consideration of the
effect of the agency approvals.
I am not sure what a remand without answering the
preliminary question is meant to accomplish. The major-
ity claims that the agency’s recent action “may change the
[lower courts’] answer” to the question whether the partic-
ular state rates violate §30(A). Ante, at 6. But that fact-
specific question is not the one before us; we chose not to
grant certiorari on the question whether California’s rates
complied with §30(A), limiting our grant to the cause of
action question. 562 U. S. ___ (2011).
The majority also asserts that the lower courts must
“decide whether these cases may proceed directly under
the Supremacy Clause now that the agency has acted.”
Ante, at 8. The majority contends that the parties have
not “fully argued this question.” Ibid. But the agency
proceedings that ultimately led to the CMS approvals
were well underway when this Court granted certiorari.
The parties debated the import of the parallel adminis-
trative proceedings in their initial briefs and at oral ar-
gument. See, e.g., Brief for Petitioner 28–29 (“Private
lawsuits . . . interfere with . . . CMS’s own enforcement
procedures,” as is “vividly demonstrated in the present
cases”); Brief for Respondents Santa Rosa Memorial Hos-
Cite as: 565 U. S. ____ (2012) 7
ROBERTS, C. J., dissenting
pital et al. in No.10–283, p. 46 (“This case vividly illus-
trates why the [administrative] enforcement scheme . . .
cannot substitute for a constitutional preemption claim”).
No party—nor the United States as amicus curiae—
argued that any action by CMS would affect the answer to
the question we granted certiorari to review. See, e.g., Tr.
of Oral Arg. 53–54 (counsel for respondents) (arguing that,
“to be sure,” there would be a cause of action under the
Supremacy Clause even after the agency took action on
the challenged rates).
Once the CMS approvals were issued, this Court di-
rected the parties to file supplemental briefs to address
“the effect, if any, of the [CMS approvals] on the proper
disposition of this case.” 565 U. S. ___ (2011). Again, no
one argued on supplemental briefing that the CMS ap-
provals affected the answer to the question before this
Court. See, e.g., Supp. Letter Brief for Certain Respond-
ents 6 (“The CMS findings do not directly resolve whether
the Constitution supports a right of action”); Supp. Letter
Brief for Petitioner 6 (agreeing that “if a preemption cause
of action may be stated here against the State, [CMS]
approval may affect its merits but not its existence”). It
seems odd, then, to claim that the parties have not had the
opportunity to fully address the impact of the agency
action on the question that we granted certiorari to re-
view: whether the Ninth Circuit correctly recognized a
private cause of action under the Supremacy Clause to
enforce §30(A).
So what is the Court of Appeals to do on remand? It
could change its view and decide that there is no cause of
action directly under the Supremacy Clause to enforce
§30(A). The majority itself provides a compelling list of
reasons for such a result: “The Medicaid Act commits to
the federal agency the power to administer a federal pro-
gram”; “the agency is comparatively expert in the statute’s
subject matter”; “the language of the particular provision
8 DOUGLAS v. INDEPENDENT LIVING CENTER OF
SOUTHERN CAL., INC.
ROBERTS, C. J., dissenting
at issue here is broad and general, suggesting that the
agency’s expertise is relevant”; and APA review would
provide “an authoritative judicial determination.” Ante, at
6–7. Allowing for both Supremacy Clause actions and
agency enforcement “threatens potential inconsistency or
confusion,” and imperils “the uniformity that Congress
intended by centralizing administration of the federal
program in the agency.” Ante, at 7–8; see Gonzaga, 536
U. S., at 291–293 (BREYER, J., concurring in judgment)
(explaining that Congress often means to preclude a pri-
vate right of action in statutes where it employs an ad-
ministrative enforcement scheme that achieves “expertise,
uniformity, widespread consultation, and resulting admin-
istrative guidance,” while “avoid[ing] the comparative risk
of inconsistent interpretations and misincentives that can
arise out of an occasional inappropriate application of the
statute in a private action for damages”).
The majority acknowledges, in light of all this, that the
Supremacy Clause challenge appears “at best redundant,”
and that “continuation of the action in that form would
seem to be inefficient.” Ante, at 8. Still, according to the
majority, the Court of Appeals on remand could determine
that the Supremacy Clause action may be brought but
then must abate “now that the agency has acted,” ibid.—
as everyone knew the agency would. A Court concerned
with “inefficien[cy]” should not find that result very pal-
atable, and the majority cites no precedent for a cause of
action that fades away once a federal agency has acted.
Such a scenario would also create a bizarre rush to the
courthouse, as litigants seek to file and have their Su-
premacy Clause causes of action decided before the agency
has time to arrive at final agency action reviewable in
court.
Or perhaps the suits should continue in a different
“form,” by which I understand the Court to suggest that
they should morph into APA actions. The APA judicial
Cite as: 565 U. S. ____ (2012) 9
ROBERTS, C. J., dissenting
review provisions, however, seem to stand in the way of
such a transformation. To convert the litigation into an
APA suit, the current defendant (the State) would need to
be dismissed and the agency (which is not currently a
party at all) would have to be sued in its stead. 5 U. S. C.
§§701–706. Given that APA actions also feature—among
other things—different standards of review, different
records, and different potential remedies, it is difficult to
see what would be left of the original Supremacy Clause
suit. Or, again, why one should have been permitted in
the first place, when agency review was provided by stat-
ute, and the parties were able to and did participate fully
in that process.
I would dispel all these difficulties by simply holding
what the logic of the majority’s own opinion suggests:
When Congress did not intend to provide a private right of
action to enforce a statute enacted under the Spending
Clause, the Supremacy Clause does not supply one of its
own force. The Ninth Circuit’s decisions to the contrary
should be reversed.