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Tagged: Supreme Court

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Getting the Facts Right

For those of you following the Medicaid expansion issue before the Court: Sara Rosenbaum and Katherine Hayes, experts on the Medicaid program and health policy at GW, have posted a thoughtful response on the Health Affairs blog to the states’ misleading discription of the Medicaid program (which I also mentioned in my initial impressions of the states’ merits brief).  Briefs supporting the states’ coercion position were just filed, and I will post initial impressions of the amici soon.

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Initial impressions of the states’ brief in Fl. v. HHS

Is the sky falling?  According to Florida et al., which filed their brief regarding PPACA’s Medicaid expansion today, the answer is a resounding yes.  In many respects, this brief rehashes the coercion arguments made in the district court and Eleventh Circuit.  The states continue to argue that they cannot afford the Medicaid expansion that will occur in 2014 (which I discussed on this blog here, here, and here), even though the federal government will pay 100% of the cost initially; and, they cannot afford not to participate in Medicaid because the costs of their medical welfare populations would be too high.  Thus, the states claim to be coerced into accepting this “onerous” new condition on federal funds.  Again, these arguments are not new. 

One aspect of the brief that was new was the inclusion of the severability arguments through describing the Medicaid expansion within the context of the universal insurance aspirations of PPACA (see especially fn. 18).   The states essentially contend that the minimum coverage requirement (“individual mandate”) gives impoverished Americans no option but to be in Medicaid, which in turn makes it so that the states cannot opt out of Medicaid.  The states further assert that this was Congress’s plan – to coerce the states by giving the poor no other options for obtaining minimum insurance coverage.  The fallacious assumptions underlying this argument are too numerous to unpack at this late hour, but at least two thoughts can start the job: first, New York v. U.S. does not require the federal government to offer alternatives to conditional spending programs (unlike, say, when it exercises commerce authority – the insurance exchanges in PPACA, which are a point of contrast in the brief, are an exercise of Commerce Clause authority, and states can either create them with some federal funding or reject them and the federal government will create the exchanges in the states that choose not to act — all of this fits neatly within the New York architecture).  Second, suffice it to say that the impoverished are not seeking private insurance alternatives to Medicaid.

Medicaid’s history is skewed by the brief more greatly than it was at lower court levels.  For example, the brief ignores the fact that Medicaid has always contained mandatory elements; these mandatory elements were one of the major defining features of the program as it was amended from Kerr-Mills, its predecessor program.  The brief also misrepresents the existence of mandatory eligibility and coverage standards and how they serve the aspirations of the program.  Likewise, the brief either misunderstands or misrepresents the minimum essential coverage requirement, which is actually more flexible for states than the mandatory coverage provisions for other Medicaid populations.  Additionally, the brief appears to misunderstand the statutory clarification that Medicaid provides both care and service (Congress here was responding to lower federal courts that had misconstrued certain language in the Medicaid Act).

Also, decisions such as Arlington, Dole, and Pennhurst that have required clear notice of conditions on spending are cited in the brief to support the states’ position that they have not voluntarily agreed to this condition on spending.  Before this point, the states have not argued that any other Dole element was violated, but the states now seem to indicate that these conditions were not unambiguous and thus the ‘contract’ with the federal government is unconstitutional.  In addition, the states offer a limiting principle that adopting their view of the coercion theory does not threaten other federal spending programs because Medicaid is by far the largest federal spending program (echoes of the federal government’s argument that nothing else is like healthcare).

Bottom line, the states want the Court to revive Butler and to expand the theory of coercion that the Court merely acknowledged in Dole and Steward Machine by relying heavily on Justice Kennedy’s concurrences and dissents that have expressed an interest in such an expansion.  The question is whether a majority of the Court is interested in a new limitation on Congress’s power to spend.

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Stanford Law Review Online: How to Reach the Constitutional Question in the Health Care Cases

Stanford Law Review

In a Note just published by the Stanford Law Review Online, Daniel J. Hemel discusses a jurisdictional issue that might delay a ruling by the Supreme Court on the constitutionality of the Patient Protection and Affordable Care Act, and a novel way in which the Solicitor General could bypass that hurdle. In How to Reach the Constitutional Question in the Health Care Cases, he writes:

Although the Supreme Court has agreed to hear three suits challenging the 2010 health care reform legislation, it is not at all clear that the Court will resolve the constitutional questions at stake in those cases. Rather, the Justices may decide that a Reconstruction-era statute, the Tax Anti-Injunction Act (TA-IA), requires them to defer a ruling on the merits of the constitutional challenges until 2015 at the earliest. . . . Fortunately (at least for those who favor a quick resolution to the constitutional questions at stake in the health care litigation), there is a way for the Solicitor General to bypass the TA-IA bar—even if one agrees with the interpretation of the TA-IA adopted by the Fourth Circuit and Judge Kavanaugh. Specifically, the Solicitor General can initiate an action against one or more of the fourteen states that have announced their intention to resist enforcement of the health care law, and he can bring this action directly in the Supreme Court under the Court’s original jurisdiction. Such an action would be a suit for the purpose of facilitating—not restraining—the enforcement of the health care law. Thus, it would open up an avenue to an immediate adjudication of the constitutional challenges.

Read the full Note, How to Reach the Constitutional Question in the Health Care Cases by Daniel J. Hemel, at the Stanford Law Review Online.

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The inter-branch turmoil continues

After the Supreme Court heard oral arguments in Douglas v. ILC, the Secretary of HHS approved some of California’s deep cuts in Medicaid reimbursement.   The Court requested additional briefing regarding the impact of the rate reduction approval, and the United States responded that the case was not moot because the grant of certiorari was based upon the Supremacy Clause question, not a determination as to the actual sufficiency of the state’s Medicaid payment rates.  As soon as the rate reductions were approved by HHS, the California Hospital Association, the California Medical Association, and other Medi-Cal providers filed additional claims for injunctive relief.  

Yesterday, U.S. District Court Judge Christina Snyder issued an injunction against California preventing the implementation of the HHS-approved rate reductions because they would cause irreparable harm to hospitals’ skilled nursing units (among other problems).  The new injunction keeps the issues in Douglas alive, whether as a matter of payment rate adequacy or as a matter of private enforcement of state violations of the Supremacy Clause.  Thus, even though HHS approved Medi-Cal rate reductions, the conflicts in Douglas have not been resolved. 

There is also a fascinating real-time separation of powers quandry in this case, which is highlighted by the injunction that was just issued.  Federal courts perceive states’ failure to abide by the mandate of the Equal Access provision, but HHS, whose job it is to ensure state compliance, turns a blind eye to state decisions that will limit access to medical care.  In the meantime, Congress does not modify the Equal Access provision to contain stronger language or a clearer private right of action, it merely relies on implied private enforcement actions (see the amicus brief of Members of Congress).  And HHS has issued paltry draft regulations to facilitate enforcement of the Equal Access provision, but the draft regulations do not guide CMS’s enforcement efforts so much as they provide some standards for states to self-report with little federal oversight.  It seems that federal courts are acting because the legislative branch either can’t or won’t, and because the executive branch either can’t or won’t ensure that this federal law is followed.  This makes the Obama Adminstration’s deference to state decisions all the stranger in Douglas, and courts’ patience with Equal Access litigation a bit more understandable.  It also helps to explain the sort of underlying tone of confusion at oral arguments.  The Court is left with the unenviable task of cutting this Gordian knot of inter-branch disfunction.

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The other healthcare case with constitutional implications

Another Medicaid case this term also involves constitutional challenges – Douglas v. Independent Living Center of Southern California That certiorari was granted is notable unto itself, as no circuit split existed, the Acting Solicitor General had recommended that the Court deny the petition, and the Court does not seem to relish hearing healthcare cases.  The conflict in Douglas is whether California violated the Medicaid Act by enacting 10% reimbursement rate reductions, but this is not the question before the Court.  The Court will consider whether the plaintiffs (a group of Medicaid providers and enrollees) may privately enforce the Medicaid Act against the state by claiming the state has violated the Supremacy Clause.  Depending upon the timing of the opinion, Douglas may give us hints as to how the Court will decide Florida v. HHS,  even though the United States has taken notably different positions in the two cases (about which I have written more here.)

Medicaid was intended to mainstream the poor into American medicine.  The Medicaid Act thus informs states that they must pay healthcare providers “sufficient[ly]” to ensure the same access to medicine for Medicaid enrollees as others in the geographic region enjoy.  This “Equal Access” provision is a pillar of Medicaid, and it has been a source of litigation against states that pay providers too little.  In fact, before Gonzaga, lower federal courts were in agreement that the Equal Access provision was enforceable via section 1983.  Through this litigation, the circuits developed varying methods for deciding sufficiency of payment, as the Centers for Medicare and Medicaid Services (CMS) has not enforced the Equal Access provision vigorously against the states.  Despite the lack of agency action, “sufficiency” is key to Medicaid’s success; if states do not pay enough for the medical services they buy, Medicaid enrollees will be forced into substandard care or will not be able to find caregivers at all, and the program would be undermined.  Due to Gonzaga, and because CMS infamously does not monitor the states, Medicaid providers and enrollees have sought to enjoin states from violating the Medicaid Act under the Supremacy Clause.

California argued that the Medicaid Act does not include private actions, thus the plaintiffs could not seek an injunction because the statute fails to meet the “unambiguous conditions” element of the Dole test for conditional spending.  This argument speaks to clear statement advocates on the Court (such as Justices Alito, Scalia, and Thomas), because it claims that states do not have clear notice of Medicaid enforcement actions in federal court.  To the surprise of many, the United States’ amicus brief not only supported California but also urged that no private right of action exists for beneficiaries of federal spending programs (generally) to enforce federal standards against states.  The Acting Solicitor General’s brief thus took a much bolder position than was expected.  Remarkably, members of Congress and ex-administrators of the Department of Health and Human Services strongly disagreed with the SG’s position.  In fact, the ex-administrators, which represent both sides of the aisle, insist that CMS relies heavily on private enforcement to police the states.

Douglas may lead the Court to articulate a default rule that ends implied private rights of action under the Supremacy Clause, but Medicaid is a flawed vehicle for such a sweeping, federalism-based decision.  [More after the jump.]

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Reviewing The Oral Argument in Hosanna-Tabor (Part Three)

JUSTICE SCALIA: Let’s assume that a Catholic priest is removed from his duties because he married, okay? And, and he claims: No, that’s not the real reason; the real reason is because I threatened to sue the church. Okay? So that reason is just pretextual. Would you allow the government to go into the dismissal of the Catholic priest to see whether indeed it was pretextual?

Assistant Solicitor General Leondra Kruger answered no, apparently because a priest’s employment relationship with his church cannot be outweighed by any government interest. Kruger should have said yes.

Kruger correctly said yes later in the argument when pressed by Justice Samuel Alito about the case of a nun, a canon law professor, who alleged gender discrimination in her denial of tenure. Alito suggested that the case inevitably involved the courts in theological doctrines of canon law. Kruger disagreed:

If on the other hand the plaintiff has evidence that no one ever raised any objections to the quality of her scholarship, but they raised objections to women serving in certain roles in the school, and those roles were not ones that were required to be filled by persons of a particular gender, consistent with religious beliefs, then that’s a case in which a judge can instruct a jury that its job is not to inquire as to the validity of the subjective judgment, just as juries are often instructed that their job is not to determine whether an employer’s business judgment was fair or correct, but only whether the employer was motivated by discrimination or retaliation.

Kruger’s two answers illustrate the confusion about pretext that has bedeviled lawsuits involving employees of religious organizations.

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Reviewing The Oral Argument in Hosanna-Tabor (Part Two)

Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC is the first ministerial exception case to make it to the Supreme Court, even though the Fifth Circuit first recognized the exception in 1972. The ministerial exception is a court-created doctrine that requires the dismissal of lawsuits by ministerial employees against religious organizations. At last Wednesday’s oral argument in Hosanna-Tabor, Justice Samuel Alito asked the church’s lawyer, University of Virginia law professor Douglas Laycock, how the exception has worked since its inception.

Justice Alito’s question arose soon after Justice Sonia Sotomayor had asked Laycock whether the ministerial exception should apply to “a teacher who reports sexual abuse to the government and is fired because of that reporting.” Justice Sotomayor’s question was probably based on Weishuhn v. Catholic Diocese of Lansing, which has a cert. petition pending before the Court. Weishuhn, a teacher at a Catholic elementary school, alleged violations of the Michigan Civil Rights Act and Whistleblowers’ Protection Act in being fired because she reported possible sexual abuse of a student’s friend to the authorities without first informing her principal. Justice Alito asked if there have been “a great many cases, a significant number of cases, involving the kinds of things that Justice Sotomayor is certainly rightly concerned about, instances in which ministers have been fired for reporting criminal violations and that sort of thing?”

Laycock gave a confusing answer by suggesting that Weishuhn would lose her case on the facts. He said there is a “cert. petition pending [undoubtedly Weishuhn] in which a teacher with a long series of problems in her school called the police about an allegation of sexual abuse that did not happen at the school, did not involve a student of the school, did not involve a parent at the school, someplace else; and — and called the police and had them come interview a student without any communication with — with her principal. And the Respondents tried to spin that as a case of discharge for reporting sexual abuse. But if you look at the facts it’s really quite different.”

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Reviewing the Oral Argument in Hosanna-Tabor (Part One)

Lost in the muddled oral argument of Hosanna-Tabor Evangelical Lutheran Church and School v EEOC was the case’s central question: Are religious groups entitled to disobey the law?

The contested issue in Hosanna-Tabor is whether Lutheran elementary schoolteacher Cheryl Perich can sue her former employer, Hosanna-Tabor Evangelical Lutheran Church and School, for retaliation under the Americans With Disabilities Act. The school fired Perich after she threatened to report the school’s disabilities discrimination against her to the EEOC. The specific legal question is whether the ministerial exception, a court-created doctrine that holds that the First Amendment requires the dismissal of many employment discrimination cases against religious employers, applies to schoolteacher Perich because the church considers her to be a minister.

Justice Sonia Sotomayor identified the important legal issue early in the oral argument when she asked the church’s lawyer, University of Virginia Professor Douglas Laycock, “doesn’t society have a right at some point to say certain conduct is unacceptable, even if religious?” That is what the ministerial exception is all about: at what point do religious organizations have to obey the law?

Justice Sotomayor was concerned about “a church whose religious beliefs centered around sexually exploiting women and children,” which Laycock did not defend. But how can courts determine which laws must be obeyed and which may be flouted? In the past, lower courts have held that Baptist churches’ religious, Scripture-based belief that men are heads of households and therefore entitled to higher pay than women did not allow them to violate the equal pay laws; that the Shiloh True Light Church of Christ’s religious belief in children’s vocational training did not permit it to violate the child labor laws; and that the Quaker tradition of hospitality to the stranger did not allow Quakers to ignore the alien worker requirements of the immigration laws. Those cases focused on how strong the government’s interest was in enforcing the laws. The courts concluded that the government’s interest in enforcing the equal pay, child labor and immigration laws was strong enough to overcome important religious beliefs.

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Vanderbilt Law Review En Banc Golan Roundtable

Vanderbilt Law Review En Banc is pleased to present our current Roundtable on Golan v. Holder, which is to be argued at the Supreme Court on October 5, 2011. In Golan, the Court will consider whether Congress may constitutionally confer copyright on works that have fallen into the public domain. Congress created a new class of “restored” works in 1996 in order to fulfill its obligations under the Berne Convention, an international copyright treaty. Professor Tyler T. Ochoa introduces the case, discusses the history of the Berne Convention, and analyzes how the Court’s decision will affect the idea of the public domain. Professor Daniel Gervais takes a closer look at the Berne Convention. He argues that Berne is a flexible document and that Congress provided greater protection to restored works than is actually required by the treaty. Dale Nelson, Senior Intellectual Property Counsel at Warner Bros., questions whether restoration has had as significant an effect on the public domain as its detractors believe. She argues that the benefits of restoring foreign works to copyright greatly outweigh the burdens to users. Professor David Olson looks at Golan’s constitutional questions from a perspective not emphasized in the parties’ briefs. He argues that, because restoration is in violation of the Progress Clause, the Government can assert no legitimate interest to support its claim that restoration does not unconstitutionally restrict the Petitioners’ First Amendment speech rights. Finally, Professor Elizabeth Townsend Gard takes a detailed look at the mechanics of the statute enacting copyright restoration. In her view, the statute does not achieve the Government’s stated interests and transgresses the traditional contours of copyright. She provides several recommendations for statutory amendments that would make determination of public domain status a more manageable exercise.


Tyler T. Ochoa, Is the Copyright Public Domain Irrevocable? An Introduction to Golan v. Holder, 64 Vand. L. Rev. En Banc 123 (2011).

Daniel Gervais, Golan v. Holder: A Look at the Constraints Imposed by the Berne Convention, 64 Vand. L. Rev. En Banc 147 (2011).

Dale Nelson, Golan Restoration: Small Burden, Big Gains, 64 Vand. L. Rev. En Banc 165 (2011).

David S. Olson, A Legitimate Interest in Promoting the Progress of Science: Constitutional Constraints on Copyright Laws, 64 Vand. L. Rev. En Banc 185 (2011).

Elizabeth Townsend Gard, In the Trenches with § 104A: An Evaluation of the Parties’ Arguments in Golan v. Holder as It Heads to the Supreme Court, 64 Vand. L. Rev. En Banc 199 (2011).

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Lack of Civil Gideon and Unauthorized Practice of Law Rules — Are They Consistent?

The recent focus on Civil Gideon triggered by the pending US Supreme Court case, Turner v. Rogers (please track the Turner Symposium here on Concurring Opinions, when the decision comes down), has set me thinking about the relationship between Civil Gideon and our current unauthorized practice of law (UPL) rules. By UPL rules, I mean the current sets of laws that generally fence off large areas of legal activity, making it unlawful for anyone without a law degree to provide services in those areas in any context at all.  I do not mean the general concept that legal services of different kinds can be regulated.

Here’s my question:  In the end, isn’t a ruling that there is no right to civil Gideon assistance in a case really the same as a ruling, at least in significant stake state deprivation cases, that the case is simple enough that people can do it on their own – even if technically the court is more likely to use a balancing test saying that the case is easy enough that it is unfair to make the state pay for counsel.  See, e.g. Lassiter v. Dept of Social Services, 452 U.S. 18, 33 (1981) (analyzing, in Part III, limited impact on the outcome on the specific facts, of lack of counsel); Turner v. Rogers, Transcript of Oral Argument, at 20-21, (Associate Justice Alito questioning petitioner’s counsel Seth Waxman as to whether it would be sufficient if the Court were to require judicial engagement when determining the issue of whether defendants are in civil contempt for having “willfully” refused to pay, except in harder cases — “And then if you run into some of these complicated legal problems or arguably complicated legal problems that you referred to, maybe in particular cases there would be need for the appointment of counsel.”)

Insofar as the Court denies a right to counsel for matters that are too simple, wouldn’t that also eliminate any basis for UPL rules?  After all, the premise of UPL rules is that a matter is too complex to be handled by non-attorneys. The main other argument for ULP rules is that there is a need for the activity to be regulated as to the “character” of the person helping and the quality of the service, but that is really a different matter, that could be taken care of in many ways other than requiring a legal education and the passing of the bar exam — see below.)

Put another way, where is the justification for the legal system to say, in any important matter that triggers due process concerns, that it is OK to require that a lawyer, and only a lawyer be allowed to help, and then to refuse to make one available?  Either the case is simple enough for non-lawyers to help, in which case the UPL prohibitions make no sense (and are arguably unconstitutional in such circumstances), or it is too complicated for a non-lawyer.  If it is too complicated, there must be help from a lawyer, and one should be provided to those unable to pay.  Indeed Professor Tribe points out the unconstitutionality of requiring the use of a legal path, and then making it financially impossible, Boddie v. Connecticut, 401 U.S. 371 (1971) (holding that if state prescribes only one method of dissolving marriage – judicial divorce, it can not deny the route to those who can not afford it; here the state is requiring that help must come from an admitted lawyer, and then refusing to provide one to the indigent.)

Any claimed middle group of cases — that a case is complicated enough that you can not allow non-lawyers to help, but simple enough that people can not do it on their own, just makes no ultimate sense.  I suppose one could assert that there is so much easier for a self-represented litigant to handle their own case than for a non-lawyer to help them that you can require people to handle their own cases.  But the only reason I could think of for this would be that the process of drawing out what someone else’s actual problem is, is so difficult that you need a law degree to do it. But we all know that the skill of drawing out from someone what their problem is, is hardly taught in law school at all — more likely in social work school.

As to the skill of legal “issue spotting,” that would be just as much needed by the self-represented as by any helper, and if needed in a case, should move it into the category of those needing counsel. Remember too, at least in this country, the structure of UPL rules cannot be justified as preventing unregulated commercial exploitation of the vulnerable.

In this country those rules reach to any activity that is substantively considered the practice of law, regardless of the relationship between the helper and the helped, regardless of whether provided by a non-profit or one in business, and regardless of whether money changes hands.  So the rigor and comprehensiveness of ULP rules can not be justified in such ethical and protective terms, but only in skill terms.  There are, of course, legitimate concerns about the ethics and quality of services provided by non-lawyers (as by lawyers), but there are many regulatory ways of taking care of this.  Abolishing or modifying the rules governing UPL is not the same as having no consumer protection regime.  Such an appropriate protective regime might potentially include registration, an insurance requirement, a complaint mechanism, and/or limitation to certain activities, including possibly to non-profit practice. Moreover, getting the line right would make it easier for appropriate consumer protection enforcement.

You could also argue, I suppose, that UPL rules do no harm, because, after all, you can always represent yourself, and a lawyer is denied only in cases where it would make no difference.  But surely that is a matter for the person providing or receiving the help to decide, and, to the extent we might be talking about associational or commercial relationships, that relationship can only be reasonably, not unreasonably, regulated.  (Indeed the prohibition, particularly in the associational non-commercial contest, might raise First Amendment questions.  It may well be that these First Amendment implications and the over and under inclusiveness of the current structure of UPL are what might doom the current bright line between lawyers and non-lawyers and between legal practice and non-regulated activities.)

In the end, I would hope that this insight — if it is that — will help us all focus more comprehensively on the whole access issue with its many components, and on the need not to focus on battles about small parts of it.

Final Note:  Although I have focused this early pre-post on the possible UPL implications of Turner, this is, of course, just one aspect of the much larger conversation we are anticipating once Turner comes down.