Academic journal article Michigan Law Review

Who Is Responsible for the Stealth Assault on Civil Rights?

Academic journal article Michigan Law Review

Who Is Responsible for the Stealth Assault on Civil Rights?

Article excerpt

WHO IS RESPONSIBLE FOR THE STEALTH ASSAULT ON CIVIL RIGHTS?

NO DAY IN COURT: ACCESS TO JUSTICE AND THE POLITICS OF JUDICIAL RETRENCHMENT. By Sarah Staszak. Oxford and New York: Oxford University Press. 2015. Pp. x, 222. $29.95.

INTRODUCTION

On March 31, 2015, the Supreme Court decided Armstrong v. Exceptional Child Center, Inc.1 In Armstrong, the Court barred Medicaid providers from obtaining injunctive relief against states that have set reimbursement rates too low to comply with the Medicaid Act's requirement that rates be "sufficient to enlist enough providers."2 The decision set offan immediate flurry of commentary among lawyers and academics. In a blog post on the afternoon of the ruling, for example, leading health law scholar Timothy Jost described the Court's ruling as "a momentous decision."3

Yet the New York Times did not publish an article about the Court's decision in Armstrong. Its only Supreme Court coverage in the next day's paper was a summary, on page three of the business section, of an oral argument the Court heard in a patent case.4

Why the absence of coverage? It was not for lack of drama and division on the Court. The Armstrong Court divided 5 to 4, and the lineup was unusual: Justice Kennedy, often the swing vote, joined Justice Sotomayor's dissent, along with Justices Ginsburg and Kagan. If Justice Breyer had stuck with his three other more liberal colleagues, the Medicaid providers would have prevailed. But Justice Breyer defected from his usual allies, and joined the Court's four most conservative Justices in Justice Scalia's majority opinion- though Justice Breyer issued his own concurrence explaining that he would not go quite as far as those four on one of the issues before the Court.

Nor was it for lack of real-world importance. Medicaid accounts for a quarter of the average state's budget and a significant fraction of every state's economy.5 In a report issued the same day as the Armstrong decision, the Kaiser Family Foundation found that, "[a]s of January 2015, 70.0 million people were enrolled in Medicaid or CHIP [the related Children's Health Insurance Program]."6 Whether those 70 million Americans will receive the health care they need-and to which the law entitles them-depends crucially on whether states set reimbursement rates that are sufficient to attract enough providers to serve them. And the opportunity for providers to go to court to force states to comply with the sufficient-rates requirement is important to ensuring that states do in fact comply with that requirement. Although Justice Breyer suggested in his concurrence that the Department of Health and Human Services could adequately enforce that requirement (by cutting offMedicaid funds to, and perhaps suing, offending states),7 administrative remedies are not a realistic option in most cases. The department has limited resources (and uncertain authority) to bring enforcement actions. 8 And, like all funding agencies, the department is loath to use the one tool that it unquestionably possesses-the power to cut offfederal funds- because doing so is likely to harm Medicaid beneficiaries even more than the state's failure to comply with the sufficient-rates requirement.9

Armstrong offered plenty of Supreme Court intrigue, not to mention enormous real-world impact. So why did the Court's opinion draw such little attention beyond a narrow circle of experts? Armstrong drew such little attention, I would argue, because it was a decision that focused on remedies. At least as a formal matter, the Court did not deny that the Medicaid Act gave states an obligation to ensure that their rates were sufficient to attract enough providers. It simply decided that provider-initiated lawsuits were not the proper means of enforcing that obligation.10 Remedies decisions are yawners, seemingly of interest only to lawyers and other specialists.

As Armstrong shows, however, this perception is misguided. Decisions about the scope of available remedies can be exceptionally important in determining whether the rights and obligations created by the law are actually meaningful to those they purport to protect and regulate. …

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