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The inter-branch turmoil continues

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2 Responses

  1. BDG says:

    Nicole, any idea why the administration is so hostile to a private right of action? Presumably, if the case went forward, CMS would get deference to its judgment that the rates are adequate, and so plaintiffs lose anyway. And that doesn’t make law for potential civil-rights plaintiffs. What gives?

  2. Nicole Huberfeld says:

    Hi Brian, It’s a great question. The scuttlebutt is that Neal Katyal/Ed Kneedler filed the merits brief over the protests of Sebelius – in fact, DOJ and HHS had been aligned at the writ stage. To add to the rift, former administrators of HHS have vehemently opposed the SG’s position in their amicus brief. It seemed during oral arguments that at least Justice Breyer, if not others, thought what you do – that primary jurisdiction could take care of the question. But the U.S. has gone so far as to oppose private rights of action in all conditional spending programs because of their ‘contractual nature’ – essentially extending Gonzaga. Very bizarre for this administration, especially in light of the Medicaid expansion. Some would probably say that the U.S. generally tends to approach the states supportively rather than antagonistically in Medicaid cases – but that still does not explain the bigger cooperative federalism argument being made. I’d love to hear others’ thoughts…

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