The New Federalism: ?Strict construction? v. ?Ahistorical literalism"
Provides background on the Eleventh Amendment, sovereign immunity, and the Ex parte Young exception;
Summarizes current precedent; and
Updates ongoing cases raising sovereign immunity defenses to enforcement of Spending Clause enactments
Background on the 11th Amendment, Sovereign Immunity, and Ex parte Young:
The Eleventh Amendment provides:
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
The text applies only to suits filed by the citizens of a state against another state. But see:
Hans v. Louisiana, 134 U.S. 1 (1890), construing the Amendment to apply to suits filed by a state?s own citizens.
By a thin 5-4 majority, the current Supreme Court embraces a broad concept of ?sovereign immunity,? see, e.g.,
Alden v. Maine, 527 U.S. 706 (1999): Private individuals cannot enforce federal laws against unconsenting states in state court to the extent enforcement is barred in federal court by the 11th Amendment.
Federal Maritime Comm?n v. South Carolina State Ports Authority, _ S.Ct. _, 2002 WL 1959457 (May 28, 2002): Congress cannot authorize a federal administrative agency to adjudicate complaints against a state or state agency that are initiated and prosecuted by private parties. Majority brands the dissent, which looks to the text of the Eleventh Amendment, as ?the type of ahistorical literalism we have rejected? (see note 8).
Limits to 11th Amendment/sovereign immunity:
Congress can abrogate immunity pursuant to § 5 of the Fourteenth Amendment. The abrogation must be: (1) clearly and unequivocally stated and (2) exhibit ?congruence and proportionality? between the injury to be prevented and the means adopted to that end (e.g. retroactive relief). See Bd. of Trustees of the Univ. of Alabama v. Garrett; 531 U.S. 356 (2001); City of Boerne v. Flores, 521 U.S. 507 (1997)..
The state can waive immunity. The waiver must be knowing and authorized. The mere acceptance of federal funds does not constitute clear consent. See, e.g., Atascadero State Hospital v. Scanlon, 473 U.S. 234 (1985) (discussing section 504 of the Rehabilitation Act of 1974). But see: Lapides v. Bd. of Regents of the Univ. of Georgia, __ U.S. __, 122 S.Ct. 1640, 70 U.S.L.W. 4425 (May 13, 2002): Voluntary removal of a case from state to federal court, by the attorney general who was authorized to prosecute the litigation, expressly invoked the jurisdiction of the federal court and, thus, constituted a waiver of sovereign immunity with regard to state law claims for which immunity was waived in state court. Lapides overrules Ford Motor Co. v. Dep?t of Treasury of the State of Indiana, 323 U.S. 459 (1945), to the extent it is in conflict. See also Montgomery v. Maryland, 70 U.S.L.W. 3707, 2002 U.S. LEXIS 3586 (May 20, 2002), granting cert., vacating judgment and remanding for further consideration in light of Lapides, 266 F.3d 337 (4th Cir. 2001) (granting sovereign immunity in a case where the state raised the defense before the district court, affirmatively withdrew the defense, and then raised the defense again before the court of appeals).
The Ex parte Young doctrine is an exception to immunity: The Eleventh Amendment does not apply to suits against state officials seeking prospective injunctive relief for ongoing violations of federal law. See Ex parte Young, 209 U.S. 123 (1908). See, e.g., Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 105 (1984) (Ex parte Young is ?necessary to permit the federal courts to vindicate federal rights and hold state officials responsible to ?the supreme authority of the United States??); Idaho v. Coeur d?Alene Tribe of Idaho, 521 U.S. 261, 269, 281 (1997) (?We do not, then, question the continuing validity of the Ex parte Young doctrine … An allegation of an ongoing violation of federal law where the requested relief is prospective is ordinarily sufficient to invoke the Young fiction.?); Alden, 527 U.S. 706, 747, 755 (1999) (?[T]he exception to our sovereign immunity doctrine recognized in Ex parte Young is based in part on the premise … that certain suits for declaratory or injunctive relief against state officers must therefore be permitted if the Constitution is to remain the supreme law of the land?).
Summary of Current Precedent:
The Eleventh Amendment bars suits against a state by any citizen, including a state?s own citizens. Hans v. Louisiana, 134 U.S. 1 (1890).
The Eleventh Amendment bars suits against a state (including agencies, boards, and commissions) or state officials for damages or other retrospective relief that must be paid from the public fisc. Edelman v. Jordan, 415 U.S. 651 (1974).
The Eleventh Amendment bars suits against a state or state official when there is no ongoing violation of federal law. Green v. Mansour, 474 U.S. 64 (1985).
The Eleventh Amendment bars suits against a state or state official when claims seek prospective relief for a violation of state law. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984).
Sovereign immunity bars suits against unconsenting states in state court for violations of federal law. Alden v. Maine, 527 U.S. 706 (1999)
Sovereign immunity bars Congress from authorizing a federal administrative agency to adjudicate complaints initiated and prosecuted by private persons against a state or state agency. Federal Maritime Comm?n v. South Carolina State Ports Authority, _ S.Ct. _ (S.Ct. May 28, 2002.
Ex parte Young is not available if Congress has established a ?detailed remedial? scheme of limited court jurisdiction. Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996). But see also Verizon v. Public Service Comm?n of Maryland, 70 U.S.L.W. 4432, 2002 U.S. LEXIS 3787 (May 20, 2002) (distinguishing the ?intricate procedures? before the Court in Seminole Tribe and holding the mere fact that Congress authorizes federal court review does not, without more, create a scheme of limited court jurisdiction).
Ex parte Young is not available in the unusual case in which particular and special circumstances affect ?special sovereignty interests.? Idaho v. Coeur d?Alene Tribe of Idaho, 521 U.S. 261 (1997).
The Eleventh Amendment does not bar suits seeking prospective, injunctive or declaratory relief to prohibit a state official?s ongoing violations of federal law?even though substantial state expenditures may be required to correct the violation. Milliken v. Bradley, 433 U.S. 267 (1977).
The Eleventh Amendment does not bar a federal court from ordering ?notice relief? that is ancillary to a previously granted injunction when that relief is a mere case-management device for an ongoing violation. Quern v. Jordan, 440 U.S. 332 (1979).
The Eleventh Amendment does not bar suits against local governments (cities, counties). Monell v. New York City Dep?t of Social Services, 436 U.S. 658 (1978).
The Eleventh Amendment does not bar suits against state officials for damages in their personal capacity. Kentucky v. Graham, 473 U.S. 157 (1985).
The Eleventh Amendment does not bar suits by the federal government pursuant to its statutory enforcement powers. E.g., Garrett, 531 U.S. at 374 n.9 (2001).
NOTE: The Eleventh Amendment is a jurisdictional bar and may be raised at any time, e.g., McKay v. Boyd Construction Co., 769 F.2d 1084 (5th Cir. 1985). A district or appellate court may raise the issue sua sponte.
Update on Cases Challenging Enforcement of Spending Clause Enactments
In legislation enacted pursuant to the Spending Clause, Congress conditions the receipt of federal funds on the state?s promise to adhere to the clearly articulated federal requirements attached to the legislation. States do not have to accept the federal funds, but if they do, the Supremacy Clause dictates that they comply with these requirements. The Medicaid Act is an example of a spending clause enactment.
Circuit Courts Hold Private Citizens Can Enforce the Medicaid Act pursuant to Ex parte Young and 42 U.S.C. § 1983
Westside Mothers v. Haveman, No. 01-1494, 2002 U.S. App. LEXIS 9159 (6th Cir. May 15, 2002), rev?g in part and aff?g in part, 133 F. Supp. 2d 549 (E.D.Mich. 2001)
Antrican v. Odom, No. 01-1693, 2002 U.S. App. LEXIS 8910 (4th Cir. May 9, 2002), aff?g, 158 F. Supp. 2d 663 (E.D.N.C. 2001)
The Westside Mothers Decision
The district opinion in Westside Mothers placed a number of novel arguments before the Sixth Circuit Court of Appeals. If accepted, these arguments would have radically altered enforcement of Medicaid and other Spending Clause legislation because only the federal government would have been able to enforce the terms of these enactments.
Medicaid is Supreme Law, not a mere contract. Citing Pennhurst State School and Hosp. v. Halderman, 451 U.S. 1, 17 (1981) (describing spending power legislation as ?much in the nature of a contract?) and Justice Scalia?s concurring opinion in Blessing v. Freestone, 520 U.S. 329, 349 (1997) (describing the person who receives the benefit of the exchange of promises between the state and federal governments as a ?third party beneficiary?), District Judge Cleland decided that Medicaid was merely a contract to pay money, not a federal law. 133 F. Supp. 2d at 558. The Sixth Circuit disagreed: ?[T]he [Supreme] Court ? is using the term ?contract? metaphorically, to illuminate certain aspects of the relationship formed between a state and the federal government?. It does not say that Medicaid is only a contract?. The Supreme Court has held that the conditions imposed by the federal government pursuant to statute upon states participating in Medicaid and similar programs are not merely contract provisions; they are federal laws.? The Circuit Court ?reaffirmed well-established precedent holding that laws validly passed by Congress under its spending powers are supreme law of the land.?
Ex parte Young applies. The Sixth Circuit went on to hold that private individuals can enforce the Medicaid Act against states by using the Ex parte Young exception to sovereign immunity, which ?gives life to the Supremacy Clause? by allowing private individuals to bring actions against state officials for prospective injunctive relief to halt ongoing violations of federal law. In reaching this holding, the Court rejected a number of arguments for dismissal, including defenses that Medicaid involves ?special sovereignty interests? and that it includes a ?detailed remedial scheme.?
The EPSDT provisions are enforceable through § 1983. The Sixth Circuit concluded that the Medicaid beneficiaries and provider organizations that filed Westside Mothers could enforce the specific Medicaid Early and Periodic Screening, Diagnosis and Treatment (EPSDT) provisions that form the basis for the suit. The court found these provisions were enforceable through a civil rights statute,42 U.S.C. § 1983, because they: (1) are intended to benefit the plaintiffs; (2) are not so vague and amorphous as to be unenforceable by a court; and (3) create binding obligations on the state. The decision was unanimous.
The Antrican Decision
Antrican involves Medicaid-eligible children in North Carolina who have been unable to obtain dental care, due in large part to a lack of Medicaid-participating dentists. The children also claim violations of the EPSDT provisions. After District Judge Malcolm Howard rejected the state's motion to dismiss, the case was appealed to the Fourth Circuit Court of Appeals. In a unanimous opinion written by Judge Niemeyer, the Court rejected each of the Attorney General's numerous arguments.
Medicaid is Supreme Law, not a mere contract. The Court decided that Medicaid is the supreme law of the land. As in Michigan, the state argued that Medicaid and other Spending Clause enactments are not enforceable through Ex parte Young because, lacking the power of compulsion, these statutes are mere contracts, not supreme federal law. The Court quickly dispensed with this argument, finding the ?novel position? argued by the state and accepted by the Westside Mothers district judge to be "at odds with existing, binding precedent."
Special sovereign interests do not exist. The Attorney General also argued that an Ex parte Young action should be precluded because the state has a ?special sovereignty interest? in determining how its limited Medicaid funds will be spent. The Court rejected this argument, saying: ?North Carolina elected to participate in the federal Medicaid program and, therefore to be bound by the requirements of the Medicaid Act. If the State did not want to face this federal involvement, it was free to decline federal funds and operate a State program for medical assistance using its own standards or to decline to operate such a program at all."
Medicaid does not contain a detailed remedial scheme. The Court found "no merit" to the state?s argument that the Medicaid Act includes a ?remedial scheme? that precludes resort to Ex parte Young?s injunctive relief: : "[I]n designing an act in which a State could participate entirely or not at all, such as the Medicaid Act, Congress has not prescribed a detailed remedial scheme for dealing with noncompliance with the Act once a State elects to participate. On the contrary, the Supreme Court has concluded that the Medicaid Act does not provide this type of detailed remedial scheme that would supplant an Ex parte Young action."
Additional cases rejecting the Westside Mothers district court:
Rancourt v. Concannon, 175 F. Supp. 2d 60 (D. Me. 2001) (finding Westside Mothers to be a ?didactic exercise in historical legal formalisms?)
Bryson v. Shumway, 177 F. Supp. 2s 78 (D.N.H. 2001) (on appeal to the First Circuit Court of Appeals)
Memisovski v. Patla, No. 92 C 1982, 2001 U.S. Dist. LEXIS 16963 (N.D. Ill. 2001)
Markva v. Haveman, 168 F. Supp. 2s 695 (E.D. Mich. 2001) (on appeal to the Sixth Circuit Court of Appeals)
Boudreau v. Ryan, No. 00 C 5392, 2001 U.S. Dist. LEXIS 22780 (N.D. Ill. 2001), injunction denied by, 2002 U.S. Dist. LEXIS 3294 (N.D. Ill. Feb. 25, 2002)
See also Frew v. Gilbert, 109 F. Supp. 2d 579 (E.D. Tex. 2000) on appeal as Frazar v Gilbert, Nos. 00-41112, 01-40667 (5th Cir) (raising the ?Westside Mothers? claims). This case was argued and submitted in April 2002.
But see Bonnie L. v. Bush, 180 F. Supp. 2d 1321 (S.D. Fla. 2001). This case finds the Adoption and Safe Families Act to contain a detailed remedial scheme, thus foreclosing application of Ex parte Young. In so ruling, the court included an extensive quote from a Tenth Circuit case, Joseph A. v Ingram, 262 F.3d 1113 (10th Cir. 2001), that had cited the Westside Mothers district court opinion with favor. However, this Tenth Circuit opinion was withdrawn and replaced by a substituted opinion, 275 F.3d 1253 (10th Cir. 2002), which rejects the sovereign immunity claims and omits citation to Westside Mothers.
