by Michael Dorf
One of my favorite games to play when I teach Federal Courts is "what kind of a holding is this?". Let me explain with an example. In Bivens v. Six Unknown Named Agents, the Supreme Court recognized a cause of action for a person alleging that FBI agents violated his Fourth Amendment rights. What was the basis for the Court's holding? The Fourth Amendment? Some general constitutional principle requiring a remedy for every violation of a constitutional right? If so, is that a free-floating principle or is it located in some particular provision, such as the Due Process Clause (here, of the Fifth Amendment)? Or perhaps this is, as later cases indicate, not a constitutional holding at all. But then what is it? The seemingly best answer is federal common law, but true federal common law can be displaced by Congress without Congress providing any substitute. So perhaps Bivens is what is sometimes called constitutional common law, i.e., a set of judge-made doctrines that implement the Constitution and that may not be displaced by Congress unless Congress provides an adequate substitute. I often give students a list of options, typically concluding with "one or more of the above" and then "none of the above." As I said, it's one of my favorite games. I can't say the students enjoy it all that much, especially as I use it when I've cold-called someone.
Nonetheless, I play this game with my students for two main reasons: (1) It exposes how sloppy the Supreme Court itself often is, making pronouncements about what the law requires, often without paying any attention at all to the source and nature of these pronouncements; and (2) analyzing the source and nature of a particular holding is essential to understanding the scope and limits of that holding.
Last week, the SCOTUS played the game with respect to the Supremacy Clause. In Armstrong v. Exceptional Child Center, the Court, 5-4, held that Medicaid providers could not sue Idaho state officials for violating the federal statute establishing reimbursement rates. The plaintiffs, respondents in the Supreme Court, had said that they had a cause of action under the Supremacy Clause to enjoin the state officials to increase the reimbursement rates to comply with federal law. However, the Court found that provisions in the Medicaid Act authorizing the federal government to withhold money from the state were the exclusive remedy for the sorts of violations alleged by the respondents.
En route to that decision, the Court said that the Supremacy Clause itself does not create a cause of action for parties to sue state officials on grounds that they are acting inconsistently with federal law. True, the majority acknowledged, such a cause of action is generally available, but that's not a function of the Supremacy Clause itself--which is just a priority rule.
Nonetheless, the majority acknowledged that absent congressional displacement, there is a cause of action by private parties suing government officials to enjoin their conduct as inconsistent with federal law. Where, if not from the Supremacy Clause, does this cause of action come from? According to the majority, it is a judge-made remedy given by courts of equity.
The SCOTUS doesn't use the term "federal common law" in Armstrong, but it's pretty clear that the general remedy it describes is best understood as federal common law. I suspect the Court abjures the term for two reasons: (1) The author of the Armstrong majority is Justice Scalia, who is skeptical of the legitimacy of federal common law (except when he isn't); and (2) it's awkward to describe a principle of equity as a species of common law, because traditionally courts of equity were distinct from common law courts.
Nonetheless, awkward or not, the majority characterizes the general rule in terms that sound in federal common law: a judge-made rule that may be displaced by Congress.
The dissent disagrees with the majority's conclusion that Congress in fact displaced the cause of action that is usually available to enforce the Supremacy Clause. I don't have a lot to say on that point. Interested readers should check out Steve Vladeck's critique at Prawfsblawg. I would note, however, that despite the disagreement over the outcome of the case, the Armstrong dissenters nonetheless grudgingly agree with the majority's characterization of the displaced cause of action. Writing for the dissenters, Justice Sotomayor says "the Court is correct that it is somewhat misleading to speak of 'an implied right of action contained in the Supremacy Clause' . . . ."
Despite the Court's unanimity with respect to the characterization, I want to argue that all the Justices are wrong, at least in some of their broader language. To my mind, the majority and the dissent lump together two questions that should be treated separately. The questions are: (1) What does Congress need to do to displace an equitable remedy to enforce a federal statute against government officials? and (2) What, if anything, can Congress do to displace an equitable remedy to enforce the Constitution against government officials?
Making clear that the dissenters (like the majority Justices) see these questions as no different, Justice Sotomayor writes: "A claim that a state law contravenes a federal statute is 'basically constitutional in nature, deriving its force from the operation of the Supremacy Clause,' . . . and the application of preempted state law is therefore 'unconstitutional' . . . ." The ellipses indicate omitted citations, which shows that Justice Sotomayor did not originate this conflation of statutory and constitutional injunctive actions. Nonetheless, the Court ought not to perpetuate it.
When Congress creates rights and duties by statute it can (subject to limits arising out of the "procedural due process" doctrine) circumscribe the remedies for those rights and duties. It can, for example, make administrative enforcement the exclusive remedy for a violation. Put differently, we might understand the ostensibly judge-made remedy of a cause of action for injunctive relief against government officials as not really federal common law but really a kind of statutory interpretation. And indeed, Justice Sotomayor's dissent reads in this way in some places, when explaining why Congress oughtn't to be understood to have intended to displace the cause of action for injunctive relief. The basic idea is that Congress, as the creator of the substantive rights and duties, also controls the remedies.
But a cause of action to enforce the Constitution stands on a different footing. Congress has no power to immunize violations of the Constitution. True, the Court has held that states and the federal government enjoy sovereign immunity against certain kinds of lawsuits but the Court has also held that such sovereign immunity does not shield government officials from actions for injunctive relief against future violations of the Constitution. That is the doctrine of Ex Parte Young.
So let's play my game. What kind of a holding is Ex Parte Young? The Armstrong dissent (apparently agreeing with the majority on this point) characterizes it as essentially ordinary federal common law, i.e., as a judge-made rule that can be displaced or even eliminated by Congress. To be sure, the dissenters want a much clearer statement of congressional intent to displace an Ex Parte Young action than the majority requires, but for all of the Justices, a sufficiently clear statement will suffice.
That's clearly right with respect to a case like Armstrong itself because Armstrong is the first kind of Young action--one that seeks to enforce a statute, over which Congress is the master. But what about an Ex Parte Young action to enforce the Constitution? By treating all Ex Parte Young actions as "constitutional"--and then by allowing that they are all subject to being displaced by Congress--the Court unanimously implies that Congress may eliminate an Ex Parte Young action to enforce a genuine constitutional provision, even if Congress does not supply an adequate substitute remedy.
I think that's wrong. In my view, an Ex Parte Young action to enforce a genuine provision of constitutional law (as opposed to a statutory obligation masquerading as the Constitution because it applies via the Supremacy Clause) is not ordinary federal common law. It's constitutional common law. That is, it's the kind of judge-made remedy that Congress cannot eliminate unless Congress provides an adequate substitute.
I don't have the space in a blog post to explain the full scope of this notion of constitutional common law. I refer interested readers to this 2000 article that Barry Friedman and I wrote, in which we elaborate in a different context the notion that the Court can create a remedy that Congress can replace with an adequate substitute but that Congress may not simply eliminate. As we note there, the crucial point is not whether one calls this concept "constitutional common law" or something else. The crucial point is that Congress cannot simply eliminate constitutionally required remedies for constitutional violations. (For other subtle elaborations on the scope of congressional power to adjust remedies for constitutional violations, I recommend a 1991 article by Dick Fallon & Dan Meltzer as well as a 2013 article by Carlos Vazquez and Steve Vladeck.)