Armstong v. Exceptional Child Center, Inc. Amici Curiae Brief in Support of Respondents

    14-15

IN THE

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R ic h a r d  A r m s t r o n g , et a l,
Petitioners,

E x c e p t io n a l  C h il d  C e n t e r , In c ., et al.,
Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE NINTH CIRCUIT

AMICI CURIAE BRIEF OF THE AMERICAN CIVIL 
LIBERTIES UNION, THE NAACP LEGAL DEFENSE & 

EDUCATIONAL FUND, THE MEXICAN AMERICAN LEGAL 
DEFENSE & EDUCATIONAL FUND, AND THE LAWYERS’ 

COMMITTEE FOR CIVIL RIGHTS UNDER LAW,
IN SUPPORT OF RESPONDENTS

Sherrilyn Ifill 
Janai S. Nelson 
Christina A. Swarns 
Jin Hee Lee
NAACP L e g a l  D e f e n s e  &  

E d u c a t io n a l  F u n d , I n c . 
40 Rector Street, 5th Floor 
New York, NY 10006
Nina Perales
M e x ic a n  A m e r ic a n  L e g a l  

D e f e n s e  & E d u c a t io n a l  
F u n d , I n c .

110 Broadway, Suite 300 
San Antonio, TX 78205

Steven R. Shapiro 
Counsel o f Record 

Omar C. Jadwat 
A m e r ic a n  C iv il  L i b e r t i e s  

U n io n  F o u n d a t io n  
125 Broad Street 
New York, NY 10004 
(212) 549-2500 
sshapiro@aclu.org
Jon Greenbaum 
La w y e r s ’ C o m m it t e e  F o r  

C iv il  R ig h t s  U n d e r  La w  
1401 New York Avenue, NW, 

Suite 400
Washington, DC 20005

mailto:sshapiro@aclu.org


TABLE OF CONTENTS

TABLE OF AUTHORITIES........................................   iii
INTEREST OF AMICI CURIAE.....................   l
SUMMARY OF ARGUMENT ...................  2
ARGUMENT..............................   5

I. THE JUDICIARY’S LONGSTANDING 
AUTHORITY TO ENFORCE THE 
CONSTITUTION THROUGH DIRECT 
ACTIONS HAS BEEN PARTICULARLY 
CRITICAL FOR CIVIL RIGHTS AND CIVIL
LIBERTIES............................................................... 5

A. Civil Rights Claims Have Long Been
Enforceable Through Direct Actions......... 6

B. Constitutional Claims Outside The Civil
Rights Context Have Also Long Been 
Enforceable Through Direct Actions... . 12

C. The Supremacy Clause As Well May Be
Enforced Through Direct Equitable 
Actions...............................................  16

II. PRECLUDING DIRECT RIGHTS OF ACTION 
UNDER THE SUPREMACY CLAUSE WILL 
HAVE BROAD AND HARMFUL 
CONSEQUENCES FOR MAINTAINING THE 
SUPREMACY OF FEDERAL LAW.................. 25
A. Racial and Ethnic Minorities, Immigrants, 

Persons With Disabilities, And Low-Income 
Individuals Continue To Depend On Direct 
Actions Under The Supremacy Clause 
To Challenge Invalid State And Local 
Laws................................................... ............25

1



B. Precluding Rights Of Action Under The 
Supremacy Clause Would Undermine 
Im portant Federal In terests......................29

CONCLUSION................. ................. ...... ................ . 34

n



TABLE OF AUTHORITIES

CASES
Allen v. Baltimore & Ohio R.R. Co.,

114 U.S. 311 (1884)................................................... 13

Allied Structural Steel Co. v. Spannaus,
438 U.S. 234 (1978)................................................... 14

Arizona u. Inter Tribal Council of Arizona,
133 S. Ct. 2247 (2013).......................................  17, 21

Arizona u. United States,
132 S. Ct. 2492 (2012) ..............................................  17

Arkansas Dep’t of Health & Human Serus. v.
Ahlborn, 547 U.S. 268 (2006).....................  16, 17, 32

Asakura v. City of Seattle,
265 U.S. 332 (1924)................................................... 17

Bell v. Hood,
327 U.S. 678 (1946).................................................... n

Bivens v. Six Unknown Named Agents o f Fed. Bureau 
of Narcotics, 403 U.S. 388 (1971)...........................  11

Bolling v. Sharpe, 347 U.S. 497 (1954)..............  3 , 7, 9

Bond v. United States,
131 S. Ct. 2355 (2011).......................................... 6 , 15

Brown v. Bd. of Educ.,
347 U.S. 483 (1954)...................................................... 8

Cannon v. Univ. of Chi.,
441 U.S. 677 (1979)................................................... 31

Carlson v. Green,
446 U.S. 14 (1980)..................................................... 11

iii



Chamber of Commerce v. Edmondson,
594 F.3d 742 (10th  Cir. 2010) ................................. 26

Chamber of Commerce v. Whiting,
131 S. Ct. 1968 (2011) .... .................... .............. 26, 32

Chambers v. Florida,
309 U.S. 227 (1940) ..................... ................ ............... 7

Chicago Burlington & Quincy R.R. Co. v. City of Chi., 
166 U.S. 226 (1897)............... ......... ..................... . 13

Comacho v. Tex. Workforce Comm’n,
408 F.3d 229 (5th Cir. 2005)...................................  28

Corr. Servs. Corp. v. Malesko,
534 U.S. 61 (2001) .................. .............. ....................  11

Crosby v. City of Gastonia,
635 F.3d 634, 640-641 (4th Cir.) (noting issue), 
cert, denied, 132 S. Ct. 112 (2011).................... . 14

Crosby v. National Foreign Trade Council,
530 U.S. 363 (2000) .......... ......... ............ 18, 20 , 22

Dennis v. Higgins,
498 U.S. 439 (1991).................. ...............................  13

District of Columbia v. Carter,
409 U.S. 418 (1973) ......................................... ....... . 7

Douglas v. Independent Living Center of S. Cal.,
132 S. Ct. 1204 (2012) ..................... ................. .......  19

Ex Parte Young,
209 U.S. 123 (1908)..................... ............. 14, 15, 16

Florida Lime & Avocado Growers, Inc. v. Paul,
373 U.S. 132 (1963)......................................... 17

Foster v. Love,
522 U.S. 67 (1997) ....... ........................... ..................  18

IV



Free Enter. Fund u. Public Co. Accounting Oversight
Bd., 130 S. Ct. 3138 (2010)......................................  15

Georgia Latino Alliance for Human Rights v. Deal, 
691 F.3d 1250 (11th Cir. 2012) .............................. . 27

Golden State Transit Corp. v. City of Los Angeles,
493 U.S. 103 (1989)............................................  18, 19

Green v. Mansour,
474 U.S. 64 (1985)..................................................... 15

Guinn v. United States,
238 U.S. 347 (1915)................................................... 9

Hays v. Port of Seattle,
251 U.S. 233 (1920) ...................................................  13

Hines v. Davidowitz,
312 U.S. 52 (1941)..............................................  17, 22

Kemp v. Chicago Housing Authority,
No. 10-cv-3347 (N.D. 111. July 21, 2010)............... 27

Lankford v. Sherman,
451 F.3d 496 (8th  Cir. 2006)................................... 28

League of United Latin Am. Citizens v. Wilson,
997 F. Supp. 1244 (C.D. Cal. 1997)............... ........  27

Lorillard Tobacco Co. v. Reilly,
533 U.S. 525 (2001)........... ....................................... 18

Lozano v. City of Hazleton,
724 F.3d 297 (3d Cir. 2013), cert, denied, 134 S. Ct. 
1491 (Mar. 3, 2014).............................................  27, 32

Maine v. Thiboutot,
448 U.S. 1 (1980)....................................................... 17

Marbury v. Madison,
5 U.S. (1 Cranch) (1803)........................................  5, 6



McLaurin v. Okla. State Regents for Higher Educ.,
339 U.S. 637 (1950).................................................... 8

Monroe v. Pape,
365 U.S. 167 (1961)  .......................... ...................... • • 7

New York v. United States,
505 U.S. 144 (1992) ......................................... .........  15

Osborn v. Bank of United States,
22 U.S. (9 Wheat.) (1824)................ ........ ....... . 13, 16

Patsy v. Bd. of Regents of Fla.,
457 U.S. 496 (1982).............. ............... .......... ......... 23

Pharm. Research & Mfrs. of America v. Walsh,
538 U.S. 644 (2003) ...............................  16, 18, 21, 30

Pierce v. Society of Sisters,
268 U.S. 510 (1925).............. .......... ....................  3, 10

Printz v. United States,
521 U.S. 898 (1997) .................................................. 15

Raich v. Truax,
219 F. 273 (D. Ariz. 1915......................................... 12

Rowe v. New Hampshire Motor Transp. A ss’n,
552 U.S. 364 (2008)..................................................  17

Scott u. Donald,
165 U.S. 107 (1897).......... ..................... ................ 13

Shaw v. Delta Air Lines, Inc.,
463 U.S. 85 (1983).................... ................................  18

Soc’y of Sisters v. Pierce,
296 F. 928 (D. Or. 1924)...........................................  10

South Carolina v. Baker,
485 U.S. 505 (1988) ........................... ....................... 15

vi



South Dakota v. Dole,
483 U.S. 203 (1987)..................................................  15

Terrace v. Thompson,
263 U.S. 197 (1923)..................................................  10

Terry v. Adams,
345 U.S. 461 (1953)................................................  3, 9

Toll u. Moreno,
458 U.S. 1 (1982)................................................ 21, 22

Truax v. Raich,
239 U.S. 33 (1915)............... ............................3, 9, 12

United States v. Alabama, ll-cv-02746 (N.D. Ala. 
Aug. 1, 2011), preliminary injunction a ff’d in part 
and rev’d in part, 691 F.3d 1269 (11th  Cir. 2012), 
cert, denied, 133 S. Ct. 2022 (2013)........................  20

United States v. Arizona, 10-cv-01413 (D. Ariz. July 
6 , 2010), preliminary injunction a ff’d in part and 
rev’d in part, 132 S. Ct. 2492 (2012)......................  20

United States v. Locke,
529 U.S. 89 (2000)....................................................  18

United States v. South Carolina,
720 F.3d 518 (2012).............................. ................... 27

Valle del Sol Inc. v. Whiting,
732 F.3d 1006 (9th Cir. 2013), cert, denied, 134 S. 
Ct. 1876 (Apr. 21, 2014).... ......................................26

Vicksburg Waterworks Co. v. Mayor & Aldermen of 
Vicksburg, 185 U.S. 65 (1902)................................. 13

Villas at Parkside Partners v. City of Farmers 
Branch, 726 F.3d 524 (5th Cir. 2013), 
cert, denied, 134 S. Ct. 1491 (Mar. 3, 2014)..........27

vii



Webster v. Doe,
486 U.S. 592 (1988).............. ......................................6

Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579 (1952) ........................... ........................ 15

STATUTES
U.S. Const.

Art. I, § 8 , cl. 1 (Spending Clause)...................passim

Art. I, § 10 (Contracts Clause)......................... passim
Art. I, § 8 , cl. 3 (Commerce Clause)................ passim
Art. VI, cl. 2 (Supremacy Clause)............ ....... passim
Amend. V ..... ............... ....... ....................................... . 7
Amend. XIV....................... ................ .................passim

Amend. XV......................................................... . 9, 23
42 U.S.C. § 1983......................... .......................... passim

Act of Dec. 29, 1979, Pub. L. No. 96-170, § 1,
93 Stat. 1284....................... ........... .............................8

OTHER AUTHORITIES
Bradford C. Mank, Suing Under § 1983: The Future 

After Gonzaga University v. Doe, 39 Hous. L. Reu. 
1417 (2003).................................................................  30

David Sloss, Constitutional Remedies for Statutory 
Actions, 89 Iowa L. Rev. 355, 406 (2004)........ 23, 32

Federalist No. 33 (H am ilton)............ ................. . 16
Federalist No. 78 (H am ilton).......................... .............6

viii



Harry A, Blackmun, Section 1983 and Federal 
Protection of Individual Rights—Will the Statute 
Remain Alive or Fade Away?, 60 N.Y.U. L. Rev. 1 
(1985).............................................................................8

Hart & Wechsler’s The Federal Courts & The Federal- 
System  (Fallon et al. eds., 6th ed. 2009)...............  18

Jane Perkins, Medicaid: Past Successes and Future 
Challenges, 12 Health Matrix 7 (2002)..................30

Lisa E. Key, Private Enforcement of Federal Funding 
Conditions Under § 1983: The Supreme Court’s 
Failure to Adhere to the Doctrine of Separation of 
Powers, 29 U.C. Davis L. Reu. 283 (1996)............ 30

M arsha S. Berzon, Securing Fragile Foundations: 
Affirmative Constitutional Adjudication in Federal 
Courts, 84 N.Y.U. L. Rev. 681 (2009).......................8

M atthew C. Stephenson, Public Regulation of Private 
Enforcement: The Case for Expanding the Role of 
Administrative Agencies,
91 Va. L. Reu. 93 (2005)...........................................  32

Roderick M. Hills, Dissecting the State: The Use of 
Federal Law to Free State and Local Officials from 
State Legislatures’ Control, 97 Mich. L. Reu. 1201 
(1999)........................................................................... 31

Rodney A. Smolla, Federal Civil Rights Acts § 14:2 
(3d ed. 2011)..............      9

Susan Bandes, Reinventing Bivens: The Self- 
Executing Constitution, 68 S. Cal. L. Rev. 289 
(1995).............    8

IX



INTEREST OF AMICI CURIAE'
The Am erican Civil L iberties Union

(“ACLU”) is a nationwide, nonprofit, nonpartisan 
organization with over 500,000 members, dedicated 
to the principles of liberty and equality embodied in 
the Constitution and our nation’s civil rights laws. 
Founded in 1920, the ACLU has vigorously defended 
civil liberties for over ninety years, working daily in 
courts, legislatures and communities to defend and 
preserve the individual rights and liberties tha t the 
Constitution and laws of the United States 
guarantee everyone in this country. The ACLU has 
appeared before this Court in numerous civil rights 
cases, both as direct counsel and as amicus curiae.

The NAACP Legal D efense & Educational 
Fund, Inc. (“LDF”) is a non-profit legal organization 
established to assist African Americans and other 
people of color in securing their civil and 
constitutional rights. For more than  six decades, 
LDF attorneys have represented parties and 
appeared as amicus curiae in litigation before the 
Supreme Court and other federal courts on m atters 
of race discrimination, including through the type of 
direct constitutional enforcement actions at issue in 
this case.

The M exican Am erican Legal D efense and 
Educational Fund (“MALDEF”) is a national civil 
rights organization established in 1968. Its principal

1 All parties have filed b lanket consents to the subm ission of 
th is am icus brief. No counsel for a party  au thored th is brief in 
whole or in  part, and no person, o ther th an  the  amici curiae, 
th e ir mem bers, or th e ir counsel m ade any m onetary 
contribution to the prepara tion  or subm ission of th is brief.

1



objective is to promote the civil rights of Latinos 
living in the United States through litigation, 
advocacy and education. MALDEF has represented 
Latino and minority interests in civil rights cases in 
the federal courts throughout the nation, including 
the Supreme Court. MALDEF’s mission includes a 
commitment to protect the rights of immigrant 
Latinos in the United States, and MALDEF has 
asserted preemption theories in federal court to 
further this commitment.

The Law yers’ Com m ittee for Civil R ights 
Under Law (“Lawyers’ Committee”) is a national 
non-profit civil rights organization th a t was founded 
in 1963 at the request of President John F. Kennedy 
to m arshal the resources of the private bar to defend 
the civil rights of racial minorities and the poor. For 
over fifty years, the Lawyers’ Committee has been at 
the forefront of many of the most significant cases 
involving race and national origin discrimination, 
including many involving Constitutional claims. The 
Lawyers’ Committee ability to vindicate the 
Constitutional rights of its clients is dependent upon 
the openness of the federal courts to hearing those 
claims.

SUMMARY OF ARGUMENT
Enforcement of the Constitution is not 

dependent on affirmative action by the political 
branches of government. Rather, from this Nation’s 
earliest times to the present, the federal courts have 
consistently exercised their equitable powers to 
compel compliance with the Constitution, without 
suggesting the necessity for a statutory vehicle, such 
as 42 U.S.C. § 1983, for such authority. Those

2



equitable powers have been, and continue to be, 
particularly im portant for racial and ethnic 
minorities, immigrants, persons with disabilities, 
low-income individuals, and others whom our 
m ajoritarian political processes are often unwilling 
or unable to protect against constitutional violations. 
Indeed, direct actions brought to enforce compliance 
with the Constitution have resulted in many of this 
Court’s most im portant civil rights and civil liberties 
decisions, including Bolling v. Sharpe, 347 U.S. 497 
(1954), Terry v. Adams, 345 U.S. 461 (1953), Truax v. 
Raich, 239 U.S. 33 (1915), and Pierce v. Society of 
Sisters, 268 U.S. 510 (1925); in none of those cases 
did the Court suggest tha t it was acting under § 1983 
or another statutory vehicle. That history is 
consistent with the many cases in which this Court 
enforced other provisions of the Constitution, such as 
the Contracts Clause and Commerce Clause, as well 
as structural principles of federalism and separation 
of powers.

Such direct actions are also available to 
enforce a claim of preemption under the Supremacy 
Clause, including where the preemption is based on a 
statu te  enacted under Congress’s spending power. 
This Court has entertained and sustained many 
direct actions based on federal preemption, 
recognizing the appropriateness of such actions to 
vindicate the supremacy of federal law. Petitioner 
suggests th a t direct preemption actions should be 
drastically restricted to situations in which federal 
law creates a defense to threatened state action, but 
that rule would seriously undermine the supremacy 
of federal law. In many contexts, a direct action is 
the only way in which the supremacy of federal law 
can be established. Moreover, allowing plaintiffs to

3



raise their Supremacy Clause claims alongside other 
constitutional claims is more efficient than 
Petitioner’s overly restrictive approach.

Direct actions rem ain critical to vindicate the 
supremacy of federal law. This is especially true for 
racial and ethnic minorities, immigrants, persons 
with disabilities, and low-income individuals, who in 
many circumstances have difficulty obtaining access 
to, or support from, the federal political branches, 
and who often depend on a judicial remedy to prevent 
enforcement of state  laws tha t conflict with federal 
laws. In contexts as diverse as immigration, housing, 
and public assistance, direct actions rem ain the only 
effective avenue to ensure the supremacy of federal 
law. Eliminating tha t avenue would seriously 
undermine the force and power of federal law.

For practical and political reasons, the United 
States does not bring enforcement actions against 
every state law th a t violates the Supremacy Clause. 
Termination of federal funding is even rarer and can 
be counterproductive. Absent direct actions brought 
to establish the supremacy of federal law by those 
most directly affected by preempted state laws, there 
would frequently be no meaningful remedy for state 
noncompliance with this fundam ental Constitutional 
safeguard.

4



ARGUMENT

I. THE JUDICIARY’S LONGSTANDING 
AUTHORITY TO ENFORCE THE 
CONSTITUTION THROUGH DIRECT 
ACTIONS HAS BEEN PARTICULARLY 
CRITICAL FOR CIVIL RIGHTS AND 
CIVIL LIBERTIES.
This Court has long recognized that the 

strictures of the Constitution may be enforced 
through direct actions for equitable relief, regardless 
of whether Congress has enacted legislation 
specifically establishing a cause of action for such 
relief. So long as the court has subject-matter 
jurisdiction over the claim, separate legislation 
establishing a cause of action has never been 
necessary for a plaintiff to obtain forward-looking 
relief from unconstitutional conduct. Rather, the 
traditional equitable authority of the courts has 
always been deemed sufficient to provide such a 
remedy. The Court has adhered to this principle in 
many contexts—whether the constitutional claim 
was brought against federal, state, or local officials; 
whether the claim was brought to enforce individual 
constitutional rights or to enforce structural 
principles in the Constitution; and whether or not 
the claim was brought to preclude an anticipated 
enforcement action.

The courts’ inherent equitable authority to 
compel compliance with the Constitution is implicit 
in the structure of the Constitution itself, and in the 
Constitution’s status as the supreme law of the land. 
See Resp. Br. 7-15. As the Court recognized in 
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803),

5



judicial review is necessary as a check against the 
aggrandizement of power by the political branches. 
These structural principles not only protect each 
branch from intrusion by the others, but they also 
protect individuals from the abuse of governmental 
power. See Bond v. United States, 131 S. Ct. 2355, 
2363-2364 (2011). Thus, as Chief Justice M arshall 
explained, “[t]he very essence of civil liberty” is “the 
right of every individual to claim the protection of the 
laws, whenever he receives an injury.” 5 U.S. (1 
Cranch) at 163. Although federal legislation may 
channel the way in which constitutional claims are 
entertained by the courts, the courts have long 
understood th a t the right to compel compliance with 
the Constitution is not contingent on the assent of 
the political branches. See Webster v. Doe, 486 U.S. 
592, 603 (1988) (stressing tha t a ‘“serious
constitutional question’” would arise if the political 
branches attem pted to preclude any judicial forum 
for constitutional claims by failing to make statutory 
allowance for such claims); see also Federalist No. 78 
(Hamilton) (“[T]he courts were designed to be an 
intermediate body between the people and the 
legislature, in order . . .  to keep the la tter within the 
limits assigned to their authority.”).

A. Civil R ights Claims Have Long Been  
Enforceable Through D irect Actions.

The ability to enforce rights directly under the 
Constitution has been particularly im portant for 
racial and ethnic minorities, immigrants, persons 
with disabilities, low-income individuals, and other 
persons who have faced systemic barriers in our 
m ajoritarian political process and thus have often 
depended on the federal courts to secure their rights

6



when Congress and the Executive Branch have been 
unable or unwilling to do so.2 Some of this Court’s 
(and this country’s) most significant steps toward 
achieving equality and liberty have resulted from 
plaintiffs’ enforcement of their rights directly under 
the Constitution. And tha t was particularly true in 
the long period before this Court’s decision in Monroe 
v. Pape, 365 U.S. 167 (1961), which revived 42 U.S.C. 
§ 1983 as a vehicle for private enforcement of 
constitutional rights.

Many landm ark civil rights decisions resulted 
from direct actions to enforce the Constitution. One 
such case, Bolling v. Sharpe, 347 U.S. 497 (1954), is a 
keystone of this Court’s desegregation precedent. The 
Bolling plaintiffs challenged racial segregation in the 
public schools of the District of Columbia under the 
Due Process Clause of the Fifth Amendment. The 
Court ruled unanimously for the plaintiffs, holding 
tha t racial segregation in the District’s public schools 
violated the Fifth Amendment. The Court nowhere 
suggested tha t the plaintiffs’ ability to be heard on 
their due process claim depended on their ability to 
point to a statutory cause of action, such as § 1983.3

2 See Chambers v. Florida, 309 U.S. 227, 241 (1940) (“U nder our 
constitu tional system, courts s tand  against any winds th a t blow 
as havens of refuge for those who m ight otherw ise suffer be­
cause they  are helpless, weak, outnum bered, or because they 
are non-conforming victims of prejudice and public 
excitem ent.”).

3 Indeed, a t the time, it was an  open question w hether § 1983 
applied to th e  D istrict of Columbia. The Court did not address 
the question un til District o f Columbia v. Carter, 409 U.S. 418 
(1973), w hich held th a t § 1983 did not apply to persons acting 
under color of D.C. law. Congress la te r  am ended § 1983 to apply 
to such persons. Act of Dec. 29, 1979, Pub. L. No. 96-170, § 1, 93

7



Desegregation in higher education was 
advanced through another direct constitutional 
action, McLaurin u. Okla. State Regents for Higher 
Educ., 339 U.S. 637 (1950). After the University of 
Oklahoma denied the plaintiff admission to graduate 
school on the basis of his race, McLaurin sued for 
injunctive relief, alleging tha t the state law 
prohibiting integrated schools deprived him of equal 
protection. The district court agreed. The Oklahoma 
legislature then amended the statute, allowing the 
university to admit the plaintiff but restricting him 
to segregated facilities. The plaintiff returned to the 
district court to seek injunctive relief, which the 
district court denied. The Supreme Court reversed, 
holding th a t the amended state law perm itting 
segregated facilities deprived McLaurin of his right 
to equal protection. Id. a t 642. The Court nowhere 
suggested th a t McLaurin’s ability to bring his 
constitutional claim depended on a statutory cause of 
action .4

Stat. 1284.

4 A nother landm ark  desegregation case, Brow n  v. Bel. o f Educ., 
347 U.S. 483 (1954)—which also did not m ention the 
predecessor s ta tu te  to § 1983—can be seen as a direct 
constitu tional action as well, although com m entators disagree 
on how to characterize th a t case. Compare M arsha S. Berzon, 
Securing Fragile Foundations: A ffirm ative C onstitutional 
A djudication in Federal Courts, 84 N.Y.U. L. Rev. 681, 685-686 
(2009) (characterizing Brown  as a direct constitu tional action) 
and  Susan  Bandes, Reinventing  Bivens: The Self-Executing  
Constitution, 68 S. Cal. L. Rev. 289, 355 (1995) (same), with  
H arry  A. B lackm un, Section 1983 and  Federal Protection o f 
Ind iv idua l R ights— Will the S ta tu te  R em ain  Alive or Fade 
Away?, 60 N.Y.U. L. Rev. 1, 1-2, 19 (1985) (characterizing 
Brown  as a § 1983 suit) and  Rodney A. Smolla, Federal Civil 
Rights Acts § 14:2, a t 391-392 (3d ed. 2011) (same). Regardless,

8



In an equally im portant decision for minority 
voting rights, the Court in Terry u. Adams, 345 U.S. 
461 (1953), sustained a constitutional challenge by 
black citizens to one of a series of schemes to 
m aintain whites-only primary elections in Texas. 
Having abandoned their claim for damages, the 
Terry plaintiffs rested their equitable claims directly 
on the Fourteenth and Fifteenth Amendments. Id. at 
478 nn.2 & 3 (Clark, J. concurring). The Court struck 
down the racially discriminatory primary as 
unconstitutional. Id. at 470; see also id. a t 467 n.2 
(plurality opinion) (noting tha t the Fifteenth 
Amendment is “‘self-executing’”). In so ruling, the 
Court relied on its earlier decision in Guinn v. United 
States, 238 U.S. 347 (1915), which invalidated 
grandfather clauses under the Fifteenth 
Amendment, even though Congress had not enacted 
specific legislation reaching primary elections, due to 
“the self-executing power of the 15th Amendment,” 
id. a t 368.

Several of this Court’s pathm arking decisions 
establishing the rights of non-citizens also reached 
the Court by way of direct action. For example, in 
Truax u. Raich, 239 U.S. 33 (1915), this Court held 
tha t an Arizona statute prohibiting the employment 
of non-citizens violated their rights to equal 
protection under the Fourteenth Amendment. The 
Court did not suggest th a t the case was before it 
under a statutory cause of action, such as § 1983, but 
ra ther stressed th a t the plaintiff had invoked the 
equitable power of the district court to restrain

Bolling  dem onstrates th a t  there  is a direct righ t of action under 
the  C onstitution to challenge the legality  of racial segregation 
in public schools.

9



unconstitutional action. Similarly, in Terrace v. 
Thompson, 263 U.S. 197 (1923), the Court, although 
rejecting an im m igrant’s constitutional claim on the 
merits, stressed tha t the power to compel compliance 
with the Constitution rested on the courts’ 
traditional equitable powers, noting that equity 
jurisdiction will be exercised to enjoin 
unconstitutional state laws “wherever it is essential 
in order effectually to protect property rights and the 
rights of persons against injuries otherwise 
irremediable.” Id. a t 214.

Similarly, one of this Court’s leading decisions 
on the meaning of “liberty” within the Due Process 
Clause, Pierce v. Soc’y of Sisters, 268 U.S. 510 (1925), 
arrived at the Court by way of a direct action brought 
to enforce the Fourteenth Amendment and to prevent 
Oregon officials from implementing a state 
compulsory education law th a t would have forced all 
children to attend public schools. See id. at 530. The 
Court nowhere referred to a statutory cause of action 
under which the claim for equitable relief was 
brought. The district court where the case was 
originally brought observed th a t “[t]he question as to 
equitable jurisdiction is a simple one, and it may be 
affirmed that, without controversy, the jurisdiction of 
equity to give relief against the violation or 
infringement of a constitutional right, privilege, or 
immunity, threatened or active, to the detriment or 
injury of a complainant, is inherent, unless such 
party has a plain, speedy, and adequate remedy at 
law.” Soc’y of Sisters v. Pierce, 296 F. 928, 931 (D. Or. 
1924) (emphasis added).

This theme—th a t the courts have inherent 
authority to restrain  violations of the Constitution,

10



so long as they have subject-matter jurisdiction— 
runs throughout the Court’s decisions and has never 
been seriously questioned. In Bell v. Hood, 327 U.S. 
678, 684 (1946) (footnote omitted), the Court
observed th a t “it is established practice for this Court 
to sustain the jurisdiction of federal courts to issue 
injunctions to protect rights safeguarded by the 
Constitution and to restrain  individual state officers 
from doing what the 14th Amendment forbids the 
State to do”—without any mention of a statutory 
vehicle such as § 1983. And although Justices of this 
Court have debated whether damages should be 
available to remedy past constitutional violations in 
the absence of a statutory cause of action, see Bivens 
v. Six Unknown Named Agents of Fed. Bureau of 
Narcotics, 403 U.S. 388 (1971); Corr. Servs. Corp. v. 
Malesko, 534 U.S. 61, 75 (2001) (Scalia, J.,
concurring), the Court has never questioned courts’ 
inherent authority to enjoin threatened or ongoing 
constitutional violations. See, e.g., Carlson v. Green, 
446 U.S. 14, 42 (1980) (Rehnquist, J., dissenting) 
(criticizing direct constitutional actions for damages, 
but acknowledging tradition of direct constitutional 
actions for equitable relief, and noting that “[t]he 
broad power of federal courts to grant equitable relief 
for constitutional violations has long been 
established”).

Moreover, contrary to Petitioner’s assertion 
(Pet. Br. 40), the Court has entertained such direct 
actions to enforce the Constitution regardless of 
whether they were “an anticipatory defense to state 
enforcement or regulation of the plaintiffs conduct.” 
See infra pp. 19-22; see also Pet. Br. 45-46 (noting 
several preemption cases tha t did not involve 
anticipatory defenses). Indeed, where the plaintiff

11



could not bring the claim defensively to an 
enforcement action, the case for exercise of the 
courts’ equity power is particularly compelling 
because the plaintiff could well have no other way to 
vindicate his constitutional rights. In the
desegregation and voting rights cases discussed 
above, for example, there was no clear way for the 
plaintiffs seeking to vindicate their constitutional 
rights to have obtained a ruling on the m erits of their 
claims except through affirmative litigation. And in 
Truax, the district court observed tha t the non­
citizen’s constitutional claim presented an
appropriate case for the exercise of equity power 
because, under the challenged Arizona statute, only 
employers, not (non-citizen) employees, were subject 
to criminal prosecution; thus, the non-citizen 
employee would have had no other forum for his or 
her claim to be heard. Raich v. Truax, 219 F. 273, 
283-284 (D. Ariz. 1915). If a plaintiff seeking to 
enforce the Constitution has no other forum in which 
to raise his or her claim, tha t provides a stronger— 
not a weaker—rationale for the courts to entertain  a 
direct equitable action.

B. C onstitutional Claims O utside The 
Civil R ights Context Have Also Long 
Been Enforceable Through D irect 
Actions.

These civil rights cases are in keeping with 
historical tradition, in which this Court has long 
recognized direct actions to enforce constitutional 
provisions, regardless of whether Congress has 
provided a specific statutory vehicle for enforcement 
of the Constitution.

12



One of the earliest examples is Osborn v. Bank 
of United States, 22 U.S. (9 Wheat.) 738 (1824), in 
which this Court resolved the Bank of the United 
States’ suit against the Ohio Auditor for collecting a 
state tax that conflicted with the federal statu te that 
created the Bank. Although no statute created a 
cause of action for the Bank, this Court found that 
the dispute w arranted the “interference of a Court,” 
and it held the Ohio law unconstitutional on the 
ground tha t it was “repugnant to a law of the United 
States” and, therefore, void under the Supremacy 
Clause. Id. a t 838, 868 .

In the years after Osborn, and with increasing 
frequency after Congress provided for federal- 
question jurisdiction in 1875, courts routinely 
entertained suits to enforce directly a broad range of 
constitutional provisions, including the Contracts 
Clause, the Fourteenth Amendment’s Due Process 
Clause, and the dormant Commerce Clause. See, e.g., 
Hays v. Port of Seattle, 251 U.S. 233 (1920) (Due 
Process Clause and Contracts Clause); Vicksburg 
Waterworks Co. v. Mayor & Aldermen of Vicksburg, 
185 U.S. 65 (1902) (Contracts Clause); Chicago 
Burlington & Quincy R.R. Co. v. City of Chi., 166 
U.S. 226 (1897) (Due Process Clause); Scott v. 
Donald, 165 U.S. 107 (1897) (Commerce Clause); 
Allen v. Baltimore & Ohio R.R. Co., 114 U.S. 311 
(1884) (Contracts Clause).

The direct actions for equitable relief brought 
to enforce the Contracts Clause are particularly 
noteworthy because this Court has not settled 
whether claims under the Contracts Clause may be 
brought under § 1983. See Dennis u. Higgins, 498 
U.S. 439, 456-457 (1991) (Kennedy, J., dissenting);

13



Crosby v. City of Gastonia, 635 F.3d 634, 640-641 
(4th Cir.) (noting issue), cert, denied, 132 S. Ct. 112 
(2011). Nonetheless, the Court explained in 
Vicksburg Waterworks th a t the Contracts Clause 
claim was properly before it because “the case 
presented by the bill is within the meaning of the 
Constitution of the United States and within the 
jurisdiction of the circuit court as presenting a 
Federal question”—without suggesting tha t a 
statutory cause of action was also necessary. 185 
U.S. a t 82. The Court more recently upheld a 
Contracts Clause claim in a direct-action posture in 
Allied Structural Steel Co. v. Spannaus, 438 U.S. 234 
(1978), without discussing whether the claim might 
have been brought under § 1983.

One of the most notable of these cases was Ex 
Parte Young, 209 U.S. 123 (1908). After the 
Minnesota Attorney General signaled his intention to 
enforce a state law limiting the rates tha t railroads 
could charge, a group of railroad shareholders sued 
him to enjoin enforcement of that law, arguing tha t it 
violated the Commerce Clause and Due Process 
Clause of the Fourteenth Amendment. The Court 
concluded tha t the Eleventh Amendment does not 
bar suits against state officers to enjoin violations of 
the Constitution or federal law. Id. a t 159-160. The 
Court also concluded th a t the federal courts had 
jurisdiction because the case raised “Federal 
questions” directly under the Constitution. Id. at 
143-145. The Court thus viewed the Constitution— 
paired with the federal-question jurisdiction 
statute—as providing the basis of the plaintiffs’ right 
to sue a state officer to enjoin an alleged 
constitutional violation. As this Court has observed, 
“the availability of prospective relief of the sort

14



awarded in Ex parte Young gives life to the 
Supremacy Clause. Remedies designed to end a 
continuing violation of federal law are necessary to 
vindicate the federal interest in assuring the 
supremacy of tha t law.” Green v. Mansour, 474 U.S. 
64, 68 (1985). Indeed, scholars have concluded that 
“the best explanation of Ex parte Young and its 
progeny is that the Supremacy Clause creates an 
implied right of action for injunctive relief against 
state officers who are threatening to violate the 
federal Constitution and laws.”5

Also demonstrating this principle are the 
numerous cases in which this Court has resolved 
structural constitutional claims brought against the 
federal government without suggesting th a t a 
statutory cause of action was necessary for those 
claims to be before the courts, and where there was 
no evident alternative forum for those claims to be 
heard (such as under the Administrative Procedure 
Act or in defense to an enforcement action). See 
Printz v. United States, 521 U.S. 898 (1997); New 
York v. United States, 505 U.S. 144 (1992); South 
Carolina u. Baker, 485 U.S. 505 (1988); South Dakota 
u. Dole, 483 U.S. 203 (1987); Youngstown Sheet & 
Tube Co. v. Sawyer, 343 U.S. 579 (1952); see also Free 
Enter. Fund u. Public Co. Accounting Oversight Bd., 
561 U.S. 477, 491 & n.2 (2010) (ruling that 
Appointments Clause claim was properly before the 
courts, despite the absence of a statutory cause of 
action); accord Bond, 131 S. Ct. a t 2363-2364 (“The 
individual, in a proper case, can assert injury from 
governmental action taken in excess of the authority

5 C harles A lan W right et al., Federal Practice and Procedure § 
3566, a t 292 (3d ed. 2008).

15



th a t federalism defines.”); see also id. a t 2365 (“The 
structural principles secured by the separation of 
powers protect the individual as well.”).

C. The Suprem acy Clause As Well May 
Be Enforced Through D irect 
Equitable Actions.

Given the courts’ historical willingness to 
entertain  direct actions to enforce the Constitution, it 
would be surprising to learn tha t the Supremacy 
Clause, alone among the Constitution’s provisions, 
could not be so enforced. As the Fram ers explained, 
the Supremacy Clause is fundam ental to the 
Constitution, for if the laws of the United States 
“were not to be supreme,” then “they would amount 
to nothing.” Federalist No. 33 (Hamilton). The 
Supremacy Clause thus “flows immediately and 
necessarily from the institution of a federal 
government. Id.', see also Resp. Br. 13-15. In keeping 
with historical tradition, direct actions under the 
Supremacy Clause have played an im portant role in 
vindicating the supremacy of federal law, as Osborn 
and Ex parte Young illustrate.

This Court has implicitly recognized a right of 
action under the Supremacy Clause to enjoin 
preempted state law in many contexts—including 
cases where the preempting federal law was enacted 
pursuant to Congress’s Spending Clause powers, and 
where state participation in the federal program was 
voluntary .6 By routinely resolving such claims on the

6 See, e.g., A rkansas D ep’t o f H ealth & H um an Servs. v. 
Ahlborn, 547 U.S. 268 (2006) (federal M edicaid law preem pts 
s ta te  s ta tu te  imposing liens on to rt se ttlem en t proceeds). In 
Pharm . Research & Mfrs. o f Am erica v. Walsh, 538 U.S. 644 
(2003) ( PhRM A ), seven Justices (four in  the  p lu rality  and

16



merits, without regard to whether a federal statute 
confers a right of action, this Court has established 
not only th a t federal courts have subject-matter 
jurisdiction over claims to enjoin preempted state 
law, but also that there is a right of action under the 
Supremacy Clause for such claims. It is particularly 
noteworthy that the Court entertained such 
Supremacy Clause claims without reference to a 
statutory cause of action long before Maine v. 
Thiboutot, 448 U.S. 1 (1980), established that § 1983 
may be used to vindicate federal statutory—in 
addition to federal constitutional—rights against 
state interference. See, e.g., Florida Lime & Avocado 
Growers, Inc. v. Paul, 373 U.S. 132 (1963); Hines v. 
Davidowitz, 312 U.S. 52 (1941); Asakura v. City of 
Seattle, 265 U.S. 332 (1924). That tradition continues 
unbroken to this day .7

th ree  in dissent) reached and  resolved the  m erits of p lain tiffs 
claim  th a t the challenged sta te  law was preem pted by the 
federal M edicaid sta tu te . See id. a t 649-670 (plurality opinion) 
(finding on the m erits th a t  s ta te  law was not preem pted); id. a t 
684 (O’Connor, J., concurring in p art and dissenting in part) 
(finding on the  m erits th a t  the  sta te  law was preem pted). By so 
doing, seven Justices im plicitly concluded both th a t the Court 
h ad  the au thority  to resolve the case under federal-question 
jurisdiction and th a t the p lain tiff had a claim to injunctive relief 
u n d er the Suprem acy Clause. See id. a t  668 (plurality opinion).

7 See e.g., A rizona v. In ter Tribal Council o f Arizona, 133 S. Ct. 
2247 (2013) (National V oter R egistration Act preem pts s ta te  
s ta tu te  requiring  prospective voters to presen t evidence of 
citizenship); Arizona v. United States, 132 S. Ct. 2492 (2012) 
(Federal im m igration law  preem pts m ultiple provisions of 
Arizona SB 1070); Rowe v. New H am pshire Motor Transp. 
A ss ’n, 552 U.S. 364 (2008) (Federal Aviation A dm inistration 
A uthorization Act preem pts s ta te  requirem ents re la ted  to the 
tran sp o rt of tobacco products); Ahlborn, 547 U.S. 268 (federal 
M edicaid law preem pts s ta te  s ta tu te  imposing liens on to rt

17



In short, “the rule th a t there is an implied 
right of action to enjoin state or local regulation that 
is preempted by a federal statutory or constitutional 
provision—and th a t such an action falls within 
federal question jurisdiction—is well established.” 
Hart & Wechsler’s The Federal Courts & The Federal 
System  807 (Fallon et al. eds., 6th  ed. 2009) 
(collecting cases).

This Court’s decision in Golden State Transit 
Corp. v. City of Los Angeles, 493 U.S. 103 (1989), is 
consistent with this analysis. That decision makes 
clear that § 1983 does not provide a home for all 
preemption claims (but may be used only to vindicate 
federal “rights”), see id. a t 107, but it nowhere 
suggests tha t preemption claims may not be directly 
asserted merely because § 1983 does not provide a 
vehicle to do so. That the Supremacy Clause itself 
“does not create rights enforceable under § 1983,” id. 
(emphasis added), means only th a t certain

settlem ent proceeds); PhRM A, 538 U.S. a t 649-670 (plurality  
opinion) (Medicaid Act did not p reem pt s ta te  prescription-drug 
rebate  law); Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001) 
(Federal C igarette Labeling and  A dvertising Act preem pts sta te  
regulations on cigarette advertising); Crosby v. N ational 
Foreign Trade Council, 530 U.S. 363 (2000) (federal B urm a 
s ta tu te  preem pts s ta te  s ta tu te  barrin g  s ta te  procurem ent from 
companies th a t do business w ith  Burm a); United States v. 
Locke, 529 U.S. 89 (2000) (various federal s ta tu te s  preem pt 
sta te  regulations concerning, inter alia, the  design and 
operation of oil tankers); Foster v. Love, 522 U.S. 67 (1997) 
(federal election s ta tu te  preem pts L ouisiana’s “open prim ary” 
statu te); Shaw  v. Delta A ir  Lines, Inc., 463 U.S. 85 (1983) 
(Employee R etirem ent Income Security Act preem pts portions 
of s ta te  benefits law); see also David Sloss, Constitutional 
Remedies for Statutory Violations, 89 Iowa L. Rev. 355, 365-400 
(2004) (canvassing th is  C ourt’s case law on preem ption claims).

18



preemption claims may not be brought under § 1983, 
not tha t such claims may not be brought at all. 
Indeed, the dissent in Golden State Transit, which 
would have denied the award of money damages 
under § 1983, made tha t very point, explaining tha t 
denying relief under § 1983 “would not leave the 
company without a remedy” because “§ 1983 does not 
provide the exclusive relief tha t the federal courts 
have to offer,” and th a t the plaintiffs could seek an 
injunction on preemption grounds. Id. at 119 
(Kennedy, J., dissenting).8

While acknowledging tha t the federal courts 
have previously entertained direct actions to enforce 
the Constitution (including the Supremacy Clause), 
Petitioner, as well as some of its amici, has suggested 
that, where Congress has not provided a vehicle like

8 Section 1983 is not duplicative of the righ t of action for in ­
junctive re lief under the  Suprem acy Clause. By enacting § 1983, 
Congress expanded the kinds of s ta te  action th a t private 
litigan ts could challenge and  the rem edies they  could seek 
beyond those available in  su its directly under the  Constitution. 
T hat § 1983 has been an  im portan t m echanism  to secure 
constitutional righ ts  by providing dam ages rem edies aga inst 
state  and local officials does not m ean th a t § 1983 is the  only 
avenue through  which unconstitu tional s ta te  action can be 
challenged.

Likewise, an  injunction enforcing the Suprem acy Clause 
preserves the  param ount place of federal law in our 
constitutional scheme w ithout providing the full range of 
remedies, including dam ages, th a t  m ight be available if 
Congress authorized a direct cause of action under a federal 
s ta tu te  itself. For th a t reason, a direct cause of action under the 
Suprem acy C lause does not “effect a complete end-run around 
th is C ourt’s im plied righ t of action and 42 U.S.C. § 1983 
jurisprudence.” Douglas v. Independent L iving Center o f S. Cal., 
132 S. Ct. 1204, 1213 (2012) (Roberts, J., dissenting).

19



§ 1983 for such claims to be heard, the federal courts 
should entertain  direct actions only when they are 
brought to prevent the threatened, imminent 
enforcement of an unconstitutional or preempted 
state law against the plaintiff. See Pet. Br. 40; 
National Governors Ass’n et al. Amicus Br. 25-27; 
Texas et al. Amicus Br. 14-15; U.S. Amicus Br. 18- 
21.9 Those suggestions should be rejected for several 
reasons.

First, those argum ents are inconsistent with 
this Court’s uniform precedent. This Court has heard 
and sustained many direct equitable actions under 
the Constitution, including the Supremacy Clause, 
and also including preemption claims based on a 
federal spending statute, even when there was no 
evident enforcement action to which the federal 
claim might be raised as a defense. For example, in 
Crosby v. N a t’l Foreign Trade Council, 530 U.S. 363 
(2000), the challenged M assachusetts law barred 
government procurement of goods and services from 
companies doing business with Burma. See id. at 
366-367. There was no “enforcement” action in which

9 The U nited  S ta tes has tak en  the position elsew here th a t the 
Suprem acy C lause provides a  direct cause of action th a t  is not 
lim ited to asse rting  a defense to a s ta te  enforcem ent action. 
See, e.g., Compl., United States v. Arizona, 10-cv-01413 (D. Ariz. 
Ju ly  6, 2010) (filed by the  U nited  S ta tes as p lain tiff challenging 
Arizona im m igration law, seeking declaratory and  injunctive 
relief and  asse rting  “Violation of the Suprem acy C lause” as its 
first cause of action) (prelim inary injunction a ff’d in  part and  
rev’d  in part, 132 S. Ct. 2492 (2012)); Compl., United States v. 
Alabam a, ll-cv-02746 (N.D. Ala. Aug. 1, 2011) (sim ilar, in  
challenge to A labam a law) (prelim inary injunction a f f’d  in  p a rt  
and rev’d  in part, 691 F.3d 1269 (11th Cir. 2012), cert, denied, 
133 S. Ct. 2022 (2013)).

20



the companies could raise preemption as a defense; 
the plaintiffs simply could no longer get government 
contracts. This Court held tha t the state law was 
preempted, necessarily presuming tha t there was a 
right of action under the Supremacy Clause tha t 
could be asserted directly and not merely in defense 
of an enforcement action. Id. at 367.

Similarly, in Toll v. Moreno, 458 U.S. 1 (1982), 
the Court considered a preemption challenge by a 
group of non-citizen Maryland residents to a 
University of Maryland policy tha t rendered the 
plaintiffs ineligible for in-state tuition rates based on 
their immigration classification. As in Crosby, the 
plaintiffs were not subject to an enforcement action, 
or a state regulation, forbidding them from certain 
prim ary conduct. Instead, they were simply denied 
an opportunity to apply for in-state tuition rates. The 
Court nonetheless reached the m erits of the claim, 
and found tha t “insofar as it bars domiciled G-4 
aliens (and their dependents) from acquiring in-state 
status, the University’s policy violates the 
Supremacy Clause.” Id. at 17. See also Inter Tribal 
Council, 133 S. Ct. 2247 (resolving National Voter 
Registration Act-based preemption claim tha t was 
raised affirmatively); PhRMA, 538 U.S. at 649-670 
(plurality opinion); id. at 684 (O’Connor, J., 
concurring in part and dissenting in part) (seven 
Justices resolving Medicaid-based preemption claim 
th a t was raised affirmatively); supra pp. 11-12 
(noting other examples of direct constitutional claims 
being entertained where they could not have been 
raised as defenses to enforcement actions).

Second, a rule barring many affirmative 
preemption claims, while allowing claims based on a

21



violation of constitutional rights to go forward in 
federal court under § 1983, would be extraordinarily 
inefficient and would undermine the effective 
vindication of federal law. Litigants frequently 
pursue both preemption theories and other 
constitutional claims. Cases before this Court teem 
with examples: businesses commonly pursue both 
preemption claims and claims under the Commerce, 
Contracts, or Due Process Clauses; imm igrants 
pursue both preemption claims and claims under the 
Equal Protection Clause and First Amendment; 
racial minorities pursue both statutory claims and 
claims under the Fourteenth and Fifteenth 
Amendments. Very often, courts tu rn  to the 
preemption claim first in order to avoid reaching 
difficult constitutional questions. See, e.g., Crosby, 
530 U.S. 363 (holding state procurement statu te 
preempted by federal Burma statute, and thereby 
avoiding dorm ant Foreign Commerce Clause claim); 
Toll, 458 U.S. a t 9-10 (holding M aryland policy 
preempted, and thereby avoiding Due Process and 
Equal Protection claims); Hines, 312 U.S. 52 (holding 
Pennsylvania registration law for non-citizens 
preempted by federal legislation enacted while the 
case was before the Supreme Court, and thus 
avoiding Equal Protection claim).

If litigants could not pursue both preemption 
claims (directly) and other constitutional claims 
(under § 1983) in a single action for equitable relief, 
then, in cases where a state forum was available for 
their preemption claims, they would be forced either 
to divide their federal claims between federal and 
state courts (which could well be barred by rules 
against splitting causes of action) or to forgo the 
federal forum for their § 1983 claims (which would be

22



contrary to the strong congressional policy in favor of 
affording a federal forum for such claims). See, e.g., 
Patsy v. Bd. of Regents of Fla., 457 U.S. 496 (1982). 
The far more efficient and sensible rule, as well as 
the one more consistent with this Court’s decisions, 
is to allow equitable claims based on all provisions of 
the Constitution, including the Supremacy Clause, to 
be entertained in affirmative litigation through an 
action directly under the Constitution.

The rule proposed by Petitioner and its amici 
would have even more damaging results where there 
is no state forum for litigants’ preemption claims. 
Many Supremacy Clause claims cannot be raised 
defensively at all, because there is no enforcement 
action in which they can be raised. In such 
circumstances, unless a state has decided to provide 
an alternative forum, an affirmative direct action 
under the Constitution is the only way in which the 
supremacy of federal law could be established. See 
David Sloss, Constitutional Remedies for Statutory 
Violations, 89 Iowa L. Rev. 355, 406 (2004)
(discussing such claims). And, even when a litigant 
might be able to assert his Supremacy Clause claim 
in state court, his ability to establish the supremacy 
of federal law should not be dependent on the venues 
th a t state law happens to make available.

The history of the civil rights movement in 
this country well illustrates the need to enforce 
federal rights in the federal courts, without reliance 
on legislative grace or the vagaries of state law. Had 
§ 1983 never been enacted, it could hardly be the 
case tha t state laws providing for segregated schools, 
white primaries, and restrictions on immigrants 
could have gone unchallenged. Plaintiffs could

23



challenge, and did challenge, such unconstitutional 
state laws directly under the Constitution, including 
the Supremacy Clause. And nothing in the 
Supremacy Clause suggests th a t it may not also be 
used directly to challenge state  laws because they 
conflict with a federal law, and not (or not just) the 
federal Constitution. The Supremacy Clause itself 
provides th a t both the Constitution “and  the Laws of 
the United States which shall be made in Pursuance 
thereof . . . shall be the supreme Law of the Land.” 
U.S. Const, art. VI (emphasis added).

Finally, nothing in the Supremacy Clause or 
this Court’s precedent indicates th a t statu tes enacted 
pursuant to Congress’s Spending Clause power 
should be treated any differently than  statutes 
enacted pursuant to other sources of congressional 
power, i.e., that direct causes of action may not be 
brought to vindicate the federal structural interest in 
the supremacy of Spending Clause statutes. Indeed, 
numerous Spending Clause sta tu tes—including Title 
VI of the Civil Rights Act of 1964, Title IX of the 
Education Amendments of 1972, and the Individuals 
with Disabilities Education Act—are critical in 
preventing discrimination and protecting civil 
liberties, and many others—such as Medicaid and 
the Supplemental N utrition Assistance Program 
(previously called the Food Stamp Program)— 
provide a critical safety net on which low-income 
individuals and persons with disabilities rely for 
survival.

24



II. PRECLUDING DIRECT RIGHTS OF 
ACTION UNDER THE SUPREMACY 
CLAUSE WILL HAVE BROAD AND 
HARMFUL CONSEQUENCES FOR 
MAINTAINING THE SUPREMACY OF 
FEDERAL LAW.
An action under the Supremacy Clause 

provides an im portant—and sometimes the only— 
avenue to vindicate the supremacy of federal law. 
Barring a right of action under the Supremacy 
Clause could effectively foreclose this critical avenue 
for persons, especially racial and ethnic minorities, 
immigrants, persons with disabilities, and low- 
income individuals, who depend on federal law and 
who would otherwise be subject to invalid state and 
local laws.

A. Racial and Ethnic M inorities, 
Im m igrants, Persons With
D isab ilities, And Low-Income 
Individuals Continue To D epend On 
D irect A ctions Under The Suprem acy  
Clause To Challenge Invalid State  
And Local Laws.

Racial and ethnic minorities, immigrants, 
persons with disabilities, and low-income individuals 
continue to rely directly on the Supremacy Clause to 
challenge invalid state and local laws in many 
important areas, including immigration, fair 
housing, public assistance, and health care. Many of 
those cases have involved legislation enacted under 
Congress’s Spending Clause power, and the courts 
have routinely adjudicated and sometimes 
invalidated state laws tha t conflicted with the 
federal legislation.

25



For example, plaintiffs in recent years have 
used the Supremacy Clause to challenge the 
increasing number of state laws tha t seek to restrict 
imm igrants’ rights, including im m igrants’ 
employment opportunities. In Chamber of Commerce 
v. Edmondson, 594 F.3d 742 (10th Cir. 2010), 
plaintiffs claimed th a t provisions of the Oklahoma 
Taxpayer and Citizen Protection Act of 2007, which 
created new employee verification rules and imposed 
sanctions on employers tha t allegedly hire 
undocumented immigrants, conflicted with federal 
immigration law, which sets forth a comprehensive 
scheme prohibiting the employment of such 
individuals. The Tenth Circuit, which upheld in part 
a preliminary injunction against enforcement of the 
state law, explained tha t a “party may bring a claim 
under the Supremacy Clause tha t a local enactm ent 
is preempted even if the federal law at issue does not 
create a private right of action.” Id. a t 756 n.13 
(internal quotation m arks omitted); see also Chamber 
of Commerce v. Whiting, 131 S. Ct. 1968 (2011) 
(adjudicating preemption challenge to Arizona law 
providing for the revocation or suspension of licenses 
in certain circumstances when state employers 
knowingly hire undocumented immigrants, but 
finding no preemption).

Numerous other courts similarly have 
addressed preemption challenges, under the 
Supremacy Clause, to state and local laws tha t affect 
imm igrants’ access to housing or otherwise target 
immigrant communities. See, e.g., Valle del Sol Inc. 
v. Whiting, 732 F.3d 1006 (9th Cir. 2013), cert, 
denied, 134 S. Ct. 1876 (Apr. 21, 2014) (sustaining 
pastor’s preemption and due process challenges to 
state statu te  criminalizing provision of assistance to

26



unauthorized immigrants); Lozano v. City of 
Hazleton, 724 F.3d 297, 313 (3d Cir. 2013), cert, 
denied, 134 S. Ct. 1491 (Mar. 3, 2014) (finding 
preemption of municipal housing and employment 
regulations relating to immigrants); Villas at 
Parkside Partners u. City of Farmers Branch, 726 
F.3d 524 (5th Cir. 2013) (en banc), cert, denied, 134 
S. Ct. 1491 (Mar. 3, 2014) (finding municipal housing 
regulations relating to immigrants preempted); 
United States v. South Carolina, 720 F.3d 518, 524- 
26 (4th Cir. 2013) (addressing separate preemption 
challenges to South Carolina immigration laws by 
United States and private parties, finding private 
plaintiffs had implied private right of action, and 
upholding preliminary injunction); Ga. Latino 
Alliance for Human Rights v. Governor of Ga., 691 
F.3d 1250, 1261-1262 (11th Cir. 2012) (finding 
implied private right of action to challenge Georgia’s 
Illegal Immigration and Enforcement Act of 2011 
under Supremacy Clause and upholding preliminary 
injunction in part); League of United Latin Am. 
Citizens v. Wilson, 997 F. Supp. 1244 (C.D. Cal. 1997) 
(finding preempted most provisions of a state law 
that, inter alia, restricted imm igrants’ access to 
health care, social services, and education).

Low-income individuals have likewise invoked 
the Supremacy Clause to ensure compliance with 
federal housing laws. In Kemp v. Chicago Housing 
Authority, No. 10-cv-3347, 2010 WL 2927417 (N.D. 
111. July 21, 2010), a single mother of two argued that 
municipal rules unlawfully allowed the Chicago 
Housing Authority to term inate her public housing 
assistance in circumstances other than those 
specified and limited by the United States Housing 
Act of 1937. Kemp sought to enjoin the local law as

27



preempted under the Supremacy Clause. Although 
the court ultim ately did not grant relief because of 
the Anti-Injunction Act, it concluded tha t the 
Supremacy Clause “create [s] rights enforceable in 
equity proceedings in federal court,” and tha t it could 
therefore exercise jurisdiction over Kemp’s 
preemption claim. Id. at *3 (internal quotation 
marks omitted).

Persons receiving public assistance have also 
invoked the Supremacy Clause to challenge state 
laws tha t term inate medical or other benefits in 
contravention of federal law. For example, in 
Comacho v. Tex. Workforce Comm’n, 408 F.3d 229 
(5th Cir. 2005), the court invalidated under the 
Supremacy Clause state regulations tha t expanded 
the circumstances, beyond those allowed by federal 
law, under which Medicaid benefits could be cut off 
for low-income adults receiving assistance under the 
federal Temporary Assistance to Needy Families 
program.

And, in Lankford v. Sherman, 451 F.3d 496 
(8th Cir. 2006), the Eighth Circuit relied directly on 
the Supremacy Clause to preliminarily enjoin a 
Missouri regulation th a t limited Medicaid coverage 
of durable medical equipment, such as wheelchair 
batteries, catheters, and suction pumps for 
respiration, to certain populations, making most 
Medicaid recipients with disabilities in Missouri 
ineligible to receive such items even if medically 
necessary. Id. at 511. The court found tha t the 
regulation conflicted with Medicaid’s requirements 
and goals, including its goals with respect to 
community access for persons with disabilities, and 
therefore was likely preempted under the Supremacy

28



Clause. Id. at 513 (holding that plaintiffs had 
“established a likelihood of success on the m erits of 
their preemption claim” for obtaining a preliminary 
injunction).

Direct actions under the Supremacy Clause, 
therefore, rem ain critically im portant to racial and 
ethnic minorities, immigrants, persons with 
disabilities, and low-income persons in our society 
who rely on them  for vindication of federal law. The 
availability of tha t direct action ensures tha t state 
and local governments cannot undermine federal law 
by enacting statutes and regulations that deviate 
from federal requirements but would, absent a 
Supremacy Clause action, be effectively insulated 
from judicial review.

B. Precluding R ights Of A ction Under  
The Suprem acy Clause Would 
Underm ine Im portant Federal 
Interests.

Precluding a right of action under the 
Supremacy Clause would leave im portant rights and 
interests effectively unprotected. Not only would the 
rights of individual litigants seeking to invalidate 
unconstitutional state laws be harmed, but 
im portant federal supremacy interests could go 
unprotected as well.

First, precluding rights of action under the 
Supremacy Clause would leave few, if any, effective 
remedies to force state compliance with many federal 
laws th a t are intended to benefit racial and ethnic 
minorities, immigrants, persons with disabilities, 
and low-income persons in our society. In the context 
of laws enacted under Congress’s Spending Clause

29



power, the term ination of federal funding may 
sometimes be theoretically available to remedy the 
S tate’s failure to comply with its obligations under 
the Medicaid Act or other Spending Clause laws, see 
PhRMA, 538 U.S. a t 675 (Scalia, J., concurring in the 
judgment), but th a t remedy is so rare and drastic as 
to be effectively unavailable as a meaningful 
enforcement tool. As commentators have explained, 
both political considerations and procedural hurdles 
make withdrawal of federal funding an illusory 
remedy. See, e.g., Bradford C. Mank, Suing Under § 
1983: The Future After Gonzaga University v. Doe, 
39 Hous. L. Reu. 1417, 1431-1432 (2003) (“[A]s a 
practical m atter, federal agencies rarely invoke the 
draconian remedy of term inating funding to a state 
found to have violated the [federal] conditions 
because there are often lengthy procedural hurdles 
th a t allow a state to challenge any proposed 
term ination of funding, and members of Congress 
from tha t state will usually oppose term ination of 
funding.”); Jane Perkins, Medicaid: Past Successes 
and Future Challenges, 12 Health Matrix 7, 32 
(2002) (“[T]he Medicaid Act provides for the Federal 
Medicaid oversight agency to withdraw federal 
funding if a State is not complying with the approved 
State Medicaid plan; however, . . . this is a harsh 
remedy th a t has rarely, if ever, been followed 
through to its conclusion.”); Lisa E. Key, Private 
Enforcement of Federal Funding Conditions Under § 
1983: The Supreme Court’s Failure to Adhere to the 
Doctrine of Separation of Powers, 29 U.C. Davis L. 
Reu. 283, 292-93 (1996) (“[OJften the agency’s only 
enforcement mechanism is a cutoff of federal funds 
for the program [,] . . . [which] is rarely, if ever, 
invoked.”).

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Moreover, term ination of federal funding 
would, in many circumstances, be counterproductive 
and contrary to Congress’s intent tha t the funding 
program be implemented to provide a wide benefit. 
Indeed, persons who receive crucial benefits and 
services from federal programs usually do not want 
federal funding to be term inated. Terminating 
federal funding would not protect the interests of 
those injured by the S tate’s noncompliance with 
federal law; rather, it would harm  the very people 
Congress intended to benefit. See Cannon v. Univ. of 
Chi., 441 U.S. 677, 704-705 (1979) (explaining that 
“term ination of federal financial support for 
institutions engaged in discriminatory practices . . . 
is . . . severe” and “may not provide an appropriate 
means of accomplishing” the purposes of the statute); 
see also Roderick M. Hills, Jr., Dissecting the State: 
The Use of Federal Law to Free State and Local 
Officials from State Legislatures’ Control, 97 Mich. L. 
Rev. 1201, 1227-1228 (1999) (“[T]he sanction of 
withdrawing federal funds from noncomplying state 
or local officials is usually too drastic for the federal 
government to use with any frequency: withdrawal of 
funds will injure the very clients that the federal 
government wishes to serve.”).

The more effective way to vindicate the 
objectives of federal law is to allow private parties to 
continue to play an im portant role in enforcing the 
supremacy of federal statutes. As the United States 
previously argued, “those programs in which the 
drastic measure of withholding all or a major portion 
of federal funding is the only available remedy would 
be generally less effective than  a system that also 
permits awards of injunctive relief in private actions 
in appropriate circumstances.” See U.S. Cert. Amicus

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Br., Douglas v. Independent Living Ctr. of S. Cal., 
No. 09-958, at 19. In such circumstances, an 
injunction would force a State to comply with the 
federal provision at issue without harm ing the 
intended beneficiaries of the federal pro-gram.

Nor would it be appropriate to force 
individuals who depend on federal law to rely 
exclusively on the federal government to bring 
affirmative litigation to enforce compliance with the 
Supremacy Clause. Private rights of action are 
necessary because the government lacks the 
resources to police preemption disputes between 
States and private parties. See Sloss, supra, at 404. 
Private rights of action “increase the social resources 
devoted to law enforcement, thus complementing 
government enforcement efforts.” Matthew C. 
Stephenson, Public Regulation of Private 
Enforcement: The Case for Expanding the Role of 
Administrative Agencies, 91 Va. L. Ren 93, 108 
(2005); see also Ahlborn, 547 U.S. a t 291.

The recent cases challenging state and local 
immigration laws illustrate the importance of private 
rights of action. A wave of state and local 
immigration legislation began in 2006 and continued 
through approximately 2011. Private plaintiffs— 
individual immigrants, community organizations, 
and businesses—began challenging the laws 
immediately on preemption and other grounds. See, 
e.g., Lozano (case initiated in 2006); Whiting (case 
initiated in 2007). The federal government largely 
agreed with the private plaintiffs’ claims tha t the 
laws were preempted, and generally filed appellate 
amicus briefs (and a m erits amicus brief in the 
Supreme Court) in support of the cases tha t reached

32



those levels. See, e.g., U.S. Cert. Amicus Br., Villas at 
Parkside Partners (5th Cir. No. 10-10751); U.S. 
Amicus Br., Whiting (No. 09-115). But the United 
States did not begin filing challenges on its own 
behalf until 2010, and then only against a minority of 
the preempted laws, and only in instances where 
private plaintiffs had already filed suit.10 Absent a 
right of action under the Supremacy Clause, there 
could well have been no meaningful remedy at all to 
invalidate many state  and local laws tha t the courts 
found to be unconstitutional.

A private right of action under the Supremacy 
Clause serves other im portant values as well. The 
Supremacy Clause supports the structural guarantee 
of federalism—namely, tha t federal law will rem ain 
paramount. And th a t interest can only be effectively 
vindicated by ensuring tha t preempted state laws are 
invalidated—a goal that, for the reasons described 
above, can best be achieved through a private right of 
action.11 In addition, by allowing robust enforcement

10 The U nited  S ta tes filed actions challenging s ta te  laws 
enacted in  Arizona, South  Carolina, U tah, and A labam a. Unlike 
private plaintiffs, the U nited  S ta tes did not directly challenge 
any local im m igration laws, s ta te  laws in Georgia and  Indiana, 
or A rizona’s im m igrant em ploym ent law.

11 For example, preem ption claim s in im m igration and other 
a reas of law have been critical to preserving the  federal 
governm ent's param ount role in foreign policy. See, e.g., Hines, 
312 U.S. a t  63 (“O ur system  of governm ent is such th a t  the 
in te rest of the cities, counties and states, no less th an  the 
in te re st of the  people of the  whole nation, im peratively requires 
th a t federal power in the  field affecting foreign relations be left 
entirely  free from local in terference.”); id. a t 66-67; see also Toll, 
458 U.S. 1, 10-13(1982).

33



for preemption claims, a private right of action 
fosters uniformity and predictability in the 
application of both federal and state law. In order to 
realize the Constitution’s fundam ental promise th a t 
federal law will rem ain param ount over invalid state 
and local laws, it is essential for this Court to 
continue—as it has done for nearly two hundred 
years—to allow litigants to bring preemption 
challenges directly under the Supremacy Clause.

CONCLUSION
The judgm ent of the court of appeals should be 

affirmed.

Respectfully submitted,

Steven R. Shapiro 
Counsel of Record 
Omar C. Jadw at 
A m e r ic a n  C iv il  L i b e r t i e s  

U n io n  F o u n d a t io n  
125 Broad Street 
New York, NY 10004 
(212) 549-2500 
sshapiro@aclu.org

Sherrilyn Ifill 
Janai S. Nelson 
Christina A. Swarns 
Jin  Hee Lee
NAACP L e g a l  D e f e n s e  &  

E d u c a t io n a l  F u n d , I n c . 
40 Rector Street, 5th Floor 
New York, NY 10006

34

mailto:sshapiro@aclu.org


Nina Perales
M e x ic a n  A m e r ic a n  L e g a l  

D e f e n s e  & E d u c a t io n a l  
F u n d , I n c .

110 Broadway, Suite 300 
San Antonio, TX 78205

Jon Greenbaum 
L a w y e r s ’ C o m m it t e e  f o r  

C iv il  R ig h t s  U n d e r  L a w  
1401 New York Avenue, 

NW, Suite 400 
Washington, DC 20005

Dated: December 22, 2014

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