Two New Articles on the Spending Clause and the Healthcare Cases

As both of my readers know (Hi, Mom!), since the day the Supreme Court decided the healthcare cases, I have been saying that the Court's Spending Clause decision was likely to be the most consequential part of the ruling for disability law and lots of other federal statutes.  That decision decoupled the Affordable Care Act's Medicaid expansion from the rest of the Medicaid program, and it, for the first time, held that a conditional federal spending program unconstitutionally coerced the states. The Court's decision on the Spending Clause issue was fractured; there was no majority opinion on the question.  And Chief Justice Roberts's pivotal opinion itself requires some work to understand.  I expect we'll see a fair amount of litigation and scholarship on the question.

Now up on SSRN are two pieces that will begin that conversation.  One, my own piece entitled The Anti-Leveraging Principle and the Spending Clause after NFIB, forthcoming this spring in the Georgetown Law Journal, tries to assess what the Court's decision means for Spending Clause doctrine generally.  Here's the abstract:

This article offers an initial assessment of the Supreme Court’s Spending Clause holding in National Federation of Independent Business v. Sebelius, which addressed the constitutional challenge to the Affordable Care Act. As Justice Ginsburg pointed out, NFIB marks “the first time ever” that the Court has held that a spending condition unconstitutionally coerced the states. The implications of that holding are potentially massive, and some of the language in the decision, if read broadly, would seriously threaten the constitutionality of a broad swath of federal spending legislation. 

Notwithstanding some of the Court’s language, this article contends that the case is not best read as rendering federal spending conditions unconstitutional simply because they are attached to large amounts of federal money, change the terms of participation in entrenched cooperative programs, or tie together separate programs into a package deal. Rather Chief Justice Roberts’s pivotal opinion is best read as adopting an “anti-leveraging principle” that will find coercion only where all three of these conditions are present at the same time. The anti-leveraging principle both makes the most sense of what the Chief Justice actually said in NFIB and does a better job of accommodating the relevant constitutional values than do alternative readings of the case. Although that principle threatens the constitutionality of far fewer conditional-spending laws than do those alternative readings, it raises challenging questions about the constitutionality of certain spending conditions. And it gives states an important new tool in negotiations with federal administrators.

The other piece, by health law mavens Nicole Huberfeld, Elizabeth Weeks Leonard, and Kevin Outterson, is entitled Plunging into Endless Difficulties: Medicaid and Coercion in the Healthcare Cases.  It focuses more specifically on the implications of the Court's decision for Medicaid.  Here's the abstract:

Of the four discrete questions before the Court in National Federation of Independent Business v. Sebelius, the Medicaid expansion held the greatest potential for destabilization from both a statutory and a constitutional perspective. As authors of an amicus brief supporting the Medicaid expansion, and scholars with expertise in health law who have been cited by the Court, we show in this article why NFIB is likely to fulfill that promise.

For the first time in its history, the Court held federal legislation based upon the spending power to be unconstitutionally coercive. Chief Justice Roberts’ plurality (joined for future voting purposes by the joint dissent) decided that the Medicaid expansion created by the ACA was a “new” program to which Congress could not attach the penalty of losing all Medicaid funding for refusing to participate. NFIB signals the Roberts Court’s interest in continuing the Federalism Revolution. The Court relied on, seemingly modified, and strengthened at least two existing elements of the test for conditional spending articulated in South Dakota v. Dole. Clear notice and germaneness now appear to be folded into the newly fashioned yet undefined coercion doctrine, which relied on quantitative as well as qualitative analysis to determine that the Medicaid expansion was unconstitutionally coercive. The Court is now actively enforcing the Tenth Amendment to protect states from federal spending legislation. 

NFIB raises many questions regarding implementation of the Medicaid expansion as well as the ACA. The dockets will experience the reverberations of these open questions, as well as the Court’s invitation to explore the coercion doctrine. Thanks to their success before the Court, states are no longer plaintiffs claiming coercion, powerless with a “gun to the head.” The Court’s decision grants them the option to expand Medicaid or not, leaving them with the difficult political choice upon which the lives of some of our most fragile, disenfranchised citizens will rely. We are plunged into Justice Cardozo’s “endless difficulties.”

Jost on the Constitutionality of the ACA -- and Medicaid

Tim Jost has a piece up on the New England Journal of Medicine's website entitled "Is Medicaid Constitutional?"  It begins:

Although the media and the U.S. public focused primarily on the minimum-coverage requirement, or individual mandate, during the recent oral arguments in the challenges to the Affordable Care Act (ACA) before the Supreme Court, the most important issue before the Court may well be the constitutionality of the ACA's Medicaid expansion. There are potential alternatives to the minimum-coverage requirement, but a finding that the Medicaid expansion is unconstitutional could threaten all federal spending programs that set minimum participation standards. Indeed, as Justice Stephen Breyer observed during the oral argument, if the plaintiff's argument is accepted, then “Medicaid has been unconstitutional since 1964.”

More on Conditional Spending and the ACA Medicaid Expansion

Over at Balkinization, I have a guest post responding to some recent discussion regarding the constitutionality of the Affordable Care Act's Medicaid expansion.  If you're interested, head over and check it out!

Supreme Court Denies Cert in IDEA Exhaustion Case

Mark Walsh at EdWeek's School Law Blog picks up something I missed in yesterday's orders list from the Supreme Court: The Court denied cert in Peninsula School District v. Payne, which presented a question regarding when parents must exhaust administrative remedies on non-IDEA claims that are related to issues the parents could raise under the IDEA.  I doubt this is the last the Court will see of this issue, however.

Supreme Court Punts in Douglas v. Independent Living Center

A few minutes ago, the Supreme Court issued its opinion in Douglas v. Independent Living Center.  The case presented a question of great significance to Medicaid and other litigation:  Whether the Constitution's Supremacy Clause provides a basis for suing a state for injunctive relief to challenge an action that conflicts with a federal statute that Congress did not otherwise provide a private right to enforce.  The federal statutory provision at issue here was the provision of the Medicaid Act that requires states to set rates at a sufficient level to enlist enough providers to ensure that services are generally available.  A number of plaintiffs relied on this statutory provision, as implemented by the Supremacy Clause, to argue that certain rate cuts implemented by California were preempted by federal law and should be enjoined.  The Ninth Circuit agreed with the plaintiffs, and the Supreme Court granted cert.  Just after oral argument, though, the federal Center for Medicare and Medicaid Services (CMS) determined that California's rate cut complied with the Medicaid Act.  In a 5-4 decision written by Justice Breyer, the Court today concluded that CMS's approval of the rate cut changes the posture of the litigation sufficiently that the case should be sent back to the Ninth Circuit for further proceedings.  Accordingly, the Court did not decide the question on which it had granted certiorari.  Chief Justice Roberts, joined by Justices Scalia, Thomas, and Alito, dissented.  They would conclude that, where Congress did not otherwise provide a right of action to enforce a federal statute, the Supremacy Clause could not provide an independent cause of action for injunctive relief.

I would put this in the category of:  Bullet dodged.  For now.

Amicus Brief in Supreme Court Health Care Suit

Today, along with co-counsel from the Bazelon Center for Mental Health Law, I filed this amicus brief on behalf of former Surgeon General David Satcher and 78 child welfare, disability, education, health care, women’s sports, veterans, and other organizations in the Supreme Court's case considering the constitutionality of the Affordable Care Act. The brief addresses a piece of the case that hasn't gotten a ton of public attention -- the challenge to the constitutionality under the Constitution's Spending Clause of the ACA's expansion of Medicaid to cover everyone with an income up to 133% of the poverty line. Our brief argues that the challenge to the Medicaid expansion, if accepted, could put in constitutional jeopardy a range of statutes enacted pursuant to the Spending Clause, both inside and outside of the medical care context.

Cert. Papers in Ruiz-Rivera v. Pfizer Pharmaceuticals

Today, I filed this reply brief in support of certiorari in Ruiz-Rivera v. Pfizer Pharmaceuticals, a case involving the ADA's protection of individuals "regarded as having" disabilities. The petition for certiorari, which we filed last month, is here.

Perlin on Panetti

New on SSRN: Michael L. Perlin, Insanity is Smashing Up Against My Soul: Panetti v. Quarterman and Questions That Won't Go Away. The abstract:

In Panetti v. Quarterman, the US Supreme Court expanded upon and clarified its earlier decision in Ford v. Wainwright, barring the execution of persons with mental disabilities who do not have a rational understanding of the reasons he is to be executed. The Panetti decision, however, has a second holding that may be equally important: that the failure to provide a defendant an adequate opportunity to submit expert evidence in response to the report filed by the court-appointed experts thus deprived him of his constitutionally adequate opportunity to be heard.

Both of these holdings leave open multiple questions that will likely be explored in subsequent cases (how severe does a mental illness have to be to qualify under this standard? how closely will it monitor the extent to which lower courts implement the new standard? To what extent does this decision augur a new level of comfort with expert testimony in other sorts of criminal proceedings). However, the Court chose not to address the question that many observers had thought was at the core of the case: whether a defendant can be medicated so as to make him competent to be executed? Does the Court's decision to not confront this question mean that it will never deal with such a case?

In this discussion of Panetti, I offer some possible answers to these questions.

Supreme Court: Parents Have Enforceable Rights Under IDEA

Today, the Supreme Court issued its opinion in Winkelman v. Parma City School District. The case presented the question whether parents can proceed in federal court pro se (that is, without a lawyer) to enforce provisions of the Individuals with Disabilities Education Act relating to their child's education. The Court, in a 7-2 decision, held that parents can proceed pro se in federal court. Justice Kennedy wrote the majority opinion, which concluded that the IDEA gives parents exactly the same rights relating to their children's education as it gives to their children. In an opinion concurring in the judgment in part and dissenting in part, Justice Scalia (joined by Justice Thomas) argued that parents have only two classes of enforceable rights under the IDEA: (1) a right to reimbursement if the school district denied a free appropriate public education and the parents sent the child to private school as a result; and (2) certain procedural rights.

It's nice to see the Court rule for the parents in an IDEA case, and the Court's holistic approach to reading the statute will be probably be helpful in future cases.

Supreme Court Denies Cert. in Univ. of Puerto Rico v. Toledo

In Monday's orders list, the Supreme Court denied cert. in University of Puerto Rico v. Toledo. The University of Puerto Rico sought cert. to review a decision of the First Circuit, which held that Title II of the ADA validly abrogates state sovereign immunity in the context of public education. Four circuits have so held; none has come out the other way since the Supreme Court's decision in Tennessee v. Lane.

Selmi on the Supreme Court's ADA Jurisprudence

Via Paul Secunda, I see that Mike Selmi's piece on the ADA, Interpreting the Americans with Disabilities Act: A Case Study in Pragmatic Judicial Reconstruction, is on SSRN. The abstract:

This article challenges the prevailing academic consensus regarding the Supreme Court's interpretation of the Americans With Disabilities Act ("ADA"). In a series of cases over the last decade, the Supreme Court has sharply limited the scope of the statute by narrowly defining what constitutes a disability, and most commentators have attributed the cases to a judicial backlash or a lack of empathy for the disabled. This article offers a counter narrative.

Although the Supreme Court's interpretations have plainly narrowed the scope of the statute, and without regard to congressional intent, I suggest that the decisions are largely consistent with congressional expectations, as well as social norms regarding who ought to be defined as disabled. The ADA was passed under unusual circumstances. Despite overwhelming congressional support, there was broad indifference to the substance of the legislation, and the absence of a substantial social movement led to a broadly worded statute that lacked a strong commitment to expanding the definition of disability. The Supreme Court has subsequently rewritten the statute to protect its own institutional interests and to bring the statute in line with public expectations. In the last part of the paper, I analyze the cases in the context of various theories of statutory interpretation, including positive political theory which identifies the Supreme Court as a strategic player seeking to impose its own preferences whenever it can. In the context of the ADA, these preferences were primarily institutional rather than political, although they also have furthered the interests of the business community, and the absence of a strong disability rights social movement has allowed the Court's decisions to avoid a congressional override.

NYT on Winkelman

Here's Linda Greenhouse's story on yesterday's Winkelman argument in the Supreme Court. The nose-counting, such as it is:

The justices were attentive to both sides’ arguments. While several justices tipped their hands, it was difficult to read the court as a whole. Justice Stephen G. Breyer said Mr. Bergeron would have an “uphill battle” to persuade him that despite the statute’s numerous references to parents, the phrase “party aggrieved” should be interpreted as applying only to children and not to parents.

And Justice David H. Souter told Mr. Bergeron that the statutory right to a “free appropriate public education” appeared to be “a right of the family group, the parents and the child together, rather than the right of the child alone.”

On the other hand, Justice Antonin Scalia told Mr. André, the Winkelmans’ lawyer, that lawyers “protect the court from frivolous suits.” When suits are brought without lawyers, “we make a lot more work for federal district judges,” he added.

Mr. André’s response that “a capable district judge can look at the case and decide whether the school should have complied with the statutory mandate” did not satisfy Justice Scalia.

“And do it right after reading pro se prisoner petitions, right?” the justice said, using the legal term for a case filed without a lawyer. “You’d have a nice evening’s work,” he added.

“We think that pro se parents are quite different from pro se prisoners,” Mr. André replied.

NY Sun on Tuition Reimbursement Case

The NY Sun has this very interesting article on the IDEA tuition-reimbursement case the Supreme Court took yesterday.

Winkelman Argument Coverage

Today, the Supreme Court hears arguments in Winkelman v. Parma School District, which presents the question whether parents can represent themselves and their children in IDEA cases. SCOTUSBlog has this preview. The AP has this article on the case.

Supreme Court Grants IDEA Case, Denies Cert. in ADA/Parental Rights Case

In today's orders list, the Supreme Court granted cert. in Board of Education v. Tom F., No. 06-637, a case that presents the question whether private-school tuition reimbursement is available under the Individuals with Disabilities Education Act for students with disabilities who never attended public school.

The Court also denied cert. in Irving N. v. Rhode Island Department of Children, Youth, and Families, No. 06-603, which presented the question whether Title II of the ADA applies to state termination of parental rights proceedings. I represented petitioners, so obviously I'm disappointed. Many state courts have held -- in conflict with the plain text of the ADA -- that the statute doesn't apply to termination of parental rights proceedings, even though there's widespread discrimination against parents with disabilities in those proceedings. I hope we can at some point find an appropriate vehicle to get the Court to decide this issue.