No right without a remedy

One lesson for first year law students is “no right without a remedy” – meaning that a right protects you only insofar as you have a remedy for its violation. This principle is old enough to have a Latin version: Ubi jus ibi remedium. But the Obama Administration now says that Medicaid beneficiaries and providers lack both the right and the remedy.

Federal statutes can explicitly grant enforcement powers to private parties, but many times statutes are silent on this question. Before the rise of the conservative Supreme Court, federal courts would occasionally imply private rights of action, arguing that the structure of the statute or some other policy consideration suggested that Congress intended private parties to be able to sue to enforce it. The key federal securities fraud statute – Section10(b)(5) – is an example.  If a private right of action hadn’t been implied by the Supreme Court, then only the SEC could sue to enforce securities fraud in the US.

Medicaid promises many things to beneficiaries, including an adequate network of doctors, hospitals and other providers. As states continued to reduce Medicaid reimbursement, more providers left the system. Advocates for the poor have filed numerous suits over the years alleging that Medicaid wasn’t delivering the package specified in federal law.  Some federal courts acknowledged the private right, while others disagreed.  In 2010, the Supreme Court accepted cert on a group of these cases, now consolidated in Maxwell-Jolly v. Independent Living Center of Southern California (SCOTUS blog here).

A decade ago, the Supreme Court decided in Alexander v. Sandoval that individuals didn’t have the implied private right to enforce the disparate impact anti-discrimination regulations under Title VI. Given the composition of the Court, the decision last spring to grant cert was generally thought to spell the end of private rights of action in Medicaid.

The surprise on May 26, 2011 was that the Obama Administration agreed with the conservatives on the Court. Obama sided with the states and against every left-of-center health care advocacy group in the country. Some lessons:

  • The era of new implied private rights of action is over. Congress must speak clearly in the text.
  • This could have been fixed in the ACA, but wasn’t.  Alexander v. Sandoval could be overturned by Congress, but hasn’t been.
  • This failure to act doesn’t necessarily mean the Supreme Court was right. Political inertia and filibusters in the Senate mean that many US Supreme Court decision will stand for decades, even if a majority of Congress and the President disagrees and could overturn the decision with a statute.
  • The vast terrain where the Supreme Court wields power over legislation is greatly expanded in a deadlocked Congress.

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