Wheeler v. Durham City Board of Education Appendix to Appellants' Brief

    Nos. 09-958, 09-1158,10-288

In The

#uprajtt (four! af tip Itttteii &fettos
T o b y  D o u g l a s , D i r e c t o r , C a l i f o r n i a  D e p a r t m e n t  

o f  H e a l t h  C a r e  Se r v i c e s , Petitioner,
v.

I n d e p e n d e n t  L i v in g  C e n t e r  o f  S o u t h e r n  
C a l i f o r n i a , I n c ., et al., Respondents.

T o b y  D o u g l a s , D ir e c t o r , C a l i f o r n i a  D e p a r t m e n t  
o f  H e a l t h  C a r e  S e r v i c e s , Petitioner,

v.
C a l i f o r n i a  P h a r m a c is t s  A s s o c ia t io n , et al.,

Respondents.

T o b y  D o u g l a s , D ir e c t o r , C a l i f o r n i a  D e p a r t m e n t  
o f  H e a l t h  C a r e  S e r v i c e s , Petitioner,

v.
Sa n t a  R o s a  M e m o r ia l  H o s p it a l , et al., Respondents.

on writs of certiorari to the united states 
court of appeals for the ninth circuit

BRIEF FOR AMERICAN CIVIL LIBERTIES UNION, 
NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, 

INC., AND MEXICAN AMERICAN LEGAL DEFENSE 
AND EDUCATIONAL FUND AS AMICI CURIAE 

SUPPORTING RESPONDENTS

M ic h a e l  D. G o t t e s m a n  P a u l  R .Q . W o lfso n  
W ilm er  C u tle r  P ickerin g  Counsel o f Record

H a l e  a n d  D o r r  l l p  Sh ir l e y  Cassin  W oodw ard
399 Park Avenue M a d h u  C h u g h

New York, N.Y. 10022 W ilm er  C u tle r  P ickering
H a l e  a n d  D o r r  l l p  

1875 Pennsylvania Ave., N.W. 
Washington, D.C. 20006 
(202) 663-6000 
pauLwolfeon@wilmerhale.com

additional counsel listed on inside cover

mailto:pauLwolfeon@wilmerhale.com


St e v e n  R . Sh a p ir o  
A m e r ic a n  C iv il  L iberties  

F o u n d a t io n  
125 Broad Street 
New York, N Y  10025

V ic t o r  V ir a m o n t e s  
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  a n d  
E d u c a t io n a l  F u n d  

634 S. Spring Street 
11th Floor
Los Angeles, CA 90014

J ohn  P a y t o n  
D ir e c t o r -C o u n sel  
NAACP L eg al  D efen se  a n d  

E d u c a t io n a l  F u n d , In c . 
99 Hudson Street, Suite 1600 
New York, N Y 10013

J o sh u a  C iv in

NAACP L egal  D efen se  a n d  
E d u c a t io n a l  F u n d , In c . 

14441 Street, N.W. 
Washington, D.C. 20005



TABLE OF CONTENTS

TABLE OF AUTHORITIES........................................ iii
INTEREST OF AMICI CURIAE..................................1
SUMMARY OF ARGUMENT....................................... 2
ARGUMENT................................................................... 4
I. T h e  C o u r t s ’ L o n g s t a n d in g  A u t h o r it y

To E n f o r c e  T h e  C o n s t it u t io n  
T h r o u g h  D i r e c t  A c t io n s  H a s  B e e n  
P a r t i c u l a r l y  C r i t ic a l  F o r  C i v il  
R ig h t s  A n d  C i v i l  L i b e r t i e s .................................4
A. Civil Rights Claims Have Long Been

Enforceable Through Direct Actions................ 5
B. Constitutional Claims Outside The

Civil Rights Context Have Also Long 
Been Enforceable Through Direct Ac­
tions.....................................................................11

C. The Supremacy Clause As Well May
Be Enforced Through Direct Equitable 
Actions................................................................14

II. P r e c l u d in g  D ir e c t  R ig h t s  O f  A c t io n

U n d e r  T h e  S u p r e m a c y  C l a u s e  W o u l d  
H a v e  B r o a d  A n d  H a r m f u l  C o n s e ­
q u e n c e s  F o r  M a i n t a i n i n g  T h e  S u ­
p r e m a c y  O f  F e d e r a l  L a w .................................. 22
A. Minorities, Immigrants, and Low- 

Income Individuals Continue To De­
pend On Direct Actions Under The Su­
premacy Clause To Challenge Invalid 
State And Local Laws...................................... 23

Page



11

Page
B. Precluding Rights Of Action Under 

The Supremacy Clause Would Under­
mine Important Federal Interests................. 26

CONCLUSION.............................................................. 30

TABLE OF CONTENTS— Continued



Ill

TABLE OF AUTHORITIES 

CASES

Allen v. Baltimore & Ohio Railroad Co.,
114 U.S.311 (1884).................................................. 12

Allied Structural Steel Co. v. Spannaus,
438 U.S. 234(1978).................................................. 12

Arka?isas Department o f Health & Human
Services v. Ahlborn, 547 U.S. 268 (2006)....15,16, 29

Asakura v. City o f Seattle, 265 U.S. 332 (1924)...........16
Bell v. Hood, 327 U.S. 678 (1946).................................... 9
Bivens v. Six Unknown Named Agents o f Fed­

eral Bureau o f Narcotics, 403 U.S. 388 
(1971)......................................................................... 10

Bolling v. Sharpe, 347 U.S. 497 (1954)................... 2, 6, 7
Bond v. United States, 131 S. Ct. 2355 (2011)..........5,14
Brown v. Board of Education, 347 U.S. 483

(1954)........................................................................... 7
Buquer v. City o f Indianapolis, No. ll-ev-708,

2011 WL 2532935 (S.D. Ind. June 24, 2011)........... 24
Camion v. University o f Chicago, 441 U.S. 677

(1979)......................................................................... 28
Carlson v. Gr'een, 446 U.S. 14 (1980).............................10
Chamber o f Commerce v. Edmundson,

594 F.3d 742 (10th Cir. 2010).................................. 23
Chamber o f Commerce v. Whiting, 131 S. Ct.

1968 (2011)................................................................ 23
Chambers v. Florida, 309 U.S. 227 (1940)...................... 6

Page(s)



IV

Chicago Burlington & Quincy Railroad Co. v.
City of Chicago, 166 U.S. 226 (1897)...................... 12

Comacho v. Texas Workforce Commission,
408 F.3d 229 (5th Cir. 2005).....................................25

Correctional Services Corp. v. Malesko,
534 U.S. 61 (2001)..................................................... 10

Crosby v. City of Gastonia, 635 F.3d 634 (4th
Cir. 2011)....   12

Crosby v. National Foreign Trade Council,
530 U.S. 363 (2000)................................16,18,20

Cuomo v. Clearing House Ass’n, L.L.C., 129 S.
Ct. 2710 (2009)........................................................... 16

Dennis v. Higgins, 498 U.S. 439 (1991)........................ 12
District o f Columbia v. Carter, 409 U.S. 418

(1973)........................................................................... 6
Ex Parte Young, 209 U.S. 123 (1908)............... 12,13,15
Florida Lime & Avocado Growers, Inc. v.

Paul, 373 U.S. 132 (1963).........................................16
Foster v. Love, 522 U.S. 67 (1997).................................16
Free Enterprise Fund v. Public Co. Account­

ing Oversight Board, 130 S. Ct. 3138 (2010)...........14
Georgia Latino Alliance for Human Rights v.

Deal, No. ll-cv-1804, 2011 WL 2520752 
(N.D. Ga. June 27,2011).......................................... 24

Golden State Transit Corp. v. City o f Los An­
geles, 493 U.S. 103 (1989).............

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

TABLE OF AUTHORITIES— Continued

Page(s)

17
13



V

Page(s)

Guinn v. United States, 238 U.S. 347 (1915)................8
Hays v. Port o f Seattle, 251 U.S. 233 (1920).................12
Haywood v. Drown, 129 S. Ct. 2108 (2009).................. 21
Hines v. Davidowitz, 312 U.S. 52 (1941)...........16, 20, 30
Howlett ex rel. Howlett v. Rose, 496 U.S. 356

(1990)......................................................................... 21
Kemp v. Chicago Housing Authority, No. 10- 

cv-3347, 2010 WL 2927417 (N.D. 111. July 
21,2010)..............................................................24, 25

Lankford v. Sherman, 451 F.3d 496 (8th Cir.
2006).......................................................  25

League o f United Latin American Citizens v.
Wilson, 997 F. Supp. 1244 (C.D. Cal. 1997)........... 24

Lorillard Tobacco Co. v. Reilly, 533 U.S. 525
(2001)......................................................................... 16

Maine v. Thiboutot, 448 U.S. 1 (1980)........................... 16
Marbury v. Madison, 5 U.S. (1 Cranch) 137

(1803)....................................................................... 4,5
McLaurin v. Oklahoma State Regents for

Higher Education, 339 U.S. 637 (1950).................... 7
Monroe v. Pape, 365 U.S. 167 (1961)...............................6
New York v. United States, 505 U.S. 144 (1992)...........14
Osborn v. Bank o f U?iited States, 22 U.S.

(9 Wheat.) 738(1824).......................................... 11,15
Patsy v. Board of Regents of Florida, 457 U.S. 

496(1982)................. ......................................

TABLE OF AUTHORITIES— Continued

20



VI

TABLE OF AUTHORITIES— Continued

Page(s)

Pharmaceutical Research & Manufacturers 
of America v. Walsh, 538 U.S. 644 
(2003).......................................................  15,16,19,26

Pierce v. Society of Sisters, 268 U.S. 510 (1925).........2, 9
Printz v. United States, 521 U.S. 898 (1997)................14
Raich v. Truax, 219 F. 273 (D. Ariz. 1915).................. 11
Rowe v. New Hampshire Motor Transport

Ass’n, 552 U.S. 364 (2008).......................................16
Scott v. Donald, 165 U.S. 107 (1897)............................. 12
Shaw v. Delta Air Lines, Inc., 463 U.S. 85

(1983)..........................................................................16
Society of Sisters v. Pierce, 296 F. 928 (D. Or.

1924)............................................................................ 9
South Carolina v. Baker, 485 U.S. 505 (1988)..............14
South Dakota v. Dole, 483 U.S. 203 (1987)................... 14
Terrace v. Thompson, 263 U.S. 197 (1923)................. 8, 9
Terry v. Adams, 345 U.S. 461 (1953).......................... 2, 8
Testa v. Katt, 330 U.S. 386 (1947)..................................21
Toll v. Moreno, 458 U.S. 1 (1982)...................................30
Truax v. Raich, 239 U.S. 33 (1915)............................. 2, 8
United States v. City o f Philadelphia, 644 F.2d

187 (3d Cir. 1980)......................................................29
United States v. Locke, 529 U.S. 89 (2000).................... 16
Vicksburg Waterworks Co. v. Mayor & Aider-

men of Vicksburg, 185 U.S. 65 (1902)...............12, 21



Vll

Villas at Parkside Partners v. City o f Farmers 
Branch, 496 F. Supp. 2d 757 (N.D. Tex.
2007) ........................................................................ 24

Villas at Parkside Partners v. City o f Farmers 
Branch, 577 F. Supp. 2d 858 (N.D. Tex.
2008) ........................................................................ 24

Watters v. Wachovia Bank, N.A., 550 U.S. 1
(2007)......................................................................... 16

Webster v. Doe, 486 U.S. 592 (1988)..................................5
Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579 (1952)................................................... 14

DOCKETED CASES

Complaint, United States v. Alabama, 11-cv-
02746 (N.D. Ala. Aug. 1, 2011)................................18

Complaint, United States v. Arizona, 10-cv- 
01413 (D. Ariz. July 6, 2010)..........................

TABLE OF AUTHORITIES— Continued

Page(s)

18



vm

Page(s)
CONSTITUTIONAL AND STATUTORY PROVISIONS

TABLE OF AUTHORITIES— Continued

U.S. Const.
art. I, §8, cl. 1..........................................15,22,23,26
art. I, §8, cl. 3..................................... 3,12,13,19,20
art. I, §10, cl. 1........................................ 2,11,12,19
art. II, § 2, cl. 2 ........................................................ 14
art. I l l ....................................................................... 29
art. VI, cl. 2.......................................................passim
amend. 1.....................................................................19
amend. V ......................................................................6
amend. X I .................................................................. 13
amend. X IV ............................... 8, 9,11,12,13,19, 29
amend. X V .............................................................8,19

42 U.S.C. § 1983......................................................passim

Act of Dec. 29, 1979, Pub. L. No. 96-170,
93 Stat. 1284................................................................6

OTHER AUTHORITIES

Bandes, Susan, Reinventing Bivens: The Self- 
Executing Constitution, 68 S. Cal. L. Rev.
289 (1995).....................................................................7

Berzon, Honorable Marsha S., Securing Fragile 
Foundations: Affirmative Constitutional 
Adjudication in Federal Courts, 84 N.Y.U.
L. Rev. 681 (2009).......................................................7

Blac-kmun, Harry A., Section 1983 and Federal 
Protection o f Individual Rights— Will the 
Statute Remain Alive or Fade Away?,
60 N.Y.U. L. Rev. 1 (1985)....................................... 7



IX

The Federalist Papers
No. 33 (Hamilton)..................................................... 14
No. 78 (Hamilton)....................................................... 5

Hart & Wechsler’s The Federal Courts & The 
Federal Syste?n (Fallon, Richard H. et al. 
eds., 6th ed. 2009)..................................................... 16

Hills, Roderick M., Dissecting the State: The 
Use of Federal Law to Free State and Lo­
cal Officials from  State Legislatures’ Con­
trol, 97 Mich. L. Rev. 1201 (1999)............................28

Key, Lisa E., Private Enforcement of Federal 
Funding Conditions Under § 1983: The 
Supreme Court’s Failure to Adhere to the 
Doctrine o f Separation o f Powers, 29 U.C.
Davis L. Rev. 283 (1996).......................................... 27

Mank, Bradford C., Suing Under § 1983: The 
Future After Gonzaga University v. Doe,
39 Hous. L. Rev. 1417 (2003)................................... 27

Perkins, Jane, Medicaid: Past Successes and 
Future Challenges, 12 Health Matrix 7 
(2002).........................................................................27

Sloss, David, Constitutional Remedies For 
Statutory Actiofis, 89 Iowa L. Rev. 355 
(2004).............................................................16, 20, 29

Smolla, Rodney A., Federal Civil Rights Acts
(3d ed. 2011)................................................................ 7

TABLE OF AUTHORITIES— Continued

Page(s)



X

Page(s)
Stephenson, Matthew C., Public Regulation o f 

Private Enforcement: The Case for E x­
panding the Role o f Administrative Agen­

TABLE OF AUTHORITIES— Continued

cies, 91 Va. L. Rev. 93 (2005)..................................29
Wright, Charles Alan et ah, Federal Practice

and Procedure (3d ed. 2008)...................................13



INTEREST OF AMICI CURIAE1

The American Civil Liberties 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 that the Constitution and laws of 
the United States guarantee everyone in this country. 
The ACLU has appeared before this Court in numer­
ous civil rights cases, both as direct counsel and as 
amicus curiae.

The NAACP Legal Defense & Educational Fund, 
Inc. (“LDF”) is a non-profit legal organization estab­
lished to assist African Americans and other people of 
color in securing their civil and constitutional rights. 
For more than six decades, LDF attorneys have repre­
sented parties and appeared as amicus curiae in litiga­
tion before the Supreme Court and other federal courts 
on matters of race discrimination, including through the 
type of direct constitutional enforcement actions at is­
sue in this case.

The Mexican American Legal Defense and Educa­
tion Fund (“MALDEF”) is a national civil rights or­
ganization established in 1968. Its principal objective is

The parties have consented to the filing of this brief. Pursu­
ant to Rule 37.3(a), written consents to the filing of this brief are 
on file with the Clerk of the Court. No counsel for a party au­
thored this brief in whole or in part, and no person, other than the 
amici curiae, their members, or their counsel made any monetary 
contribution to the preparation or submission of this brief.



2

to promote the civil rights of Latinos living in the 
United States through litigation, advocacy and educa­
tion. 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.

SUMMARY OF ARGUMENT

I. Enforcement of the Constitution is not depend­
ent on affirmative action by the political branches of 
government. Rather, from this Nation’s earliest times 
to the present, the federal courts have consistently ex­
ercised 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 equitable powers have been, and 
continue to be, particularly important for minorities, 
immigrants, low-income individuals, and others whom 
our majoritarian 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 important 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 o f Sis­
ters, 268 U.S. 510 (1925); in none of those cases did the 
Court suggest that it was acting under § 1983 or an­
other statutory vehicle. That history is consistent with 
the many cases in which this Court enforced other pro­
visions of the Constitution, such as the Contracts 
Clause and Commerce Clause, as well as structural 
principles of federalism and separation of powers.



3

Such direct actions are also available to enforce a 
claim of preemption under the Supremacy Clause, see 
U.S. Cert. Amicus Br. 15-18, including where the pre­
emption is based on a statute enacted under Congress’s 
spending power. This Court has entertained and sus­
tained many preemption claims in that context, recog­
nizing the appropriateness of direct actions to vindicate 
the supremacy of federal law. Petitioner suggests that 
such direct actions should not be allowed, or drastically 
restricted to narrow contexts, but that rule would seri­
ously undermine federal law. In many contexts, a di­
rect action is the only way in which the supremacy of 
federal law could be established. Requiring litigants 
asserting a Supremacy Clause claim to wait for a state- 
court action would be grossly inefficient and could re­
sult in federal law being undermined by invalid state 
laws.

II. Direct actions remain critical to vindicate the 
supremacy of federal law. This is especially true for 
racial minorities, immigrants, and low-income individu­
als, who in many circumstances have difficulty obtain­
ing access to, or support from, the federal political 
branches, and who often depend on a judicial remedy to 
prevent enforcement of state laws that conflict with 
federal laws. In contexts as diverse as immigration, 
housing, and public assistance, direct actions remain 
the only effective avenue to ensure the supremacy of 
federal law. Eliminating that avenue would seriously 
undermine federal law, because other avenues of en­
forcement of federal law—such as termination of fed­
eral funding or enforcement actions brought by the 
United States—are highly impractical and offer little or 
no hope for successful enforcement on behalf of indi­
viduals directly harmed by states’ illegal conduct. Ab­
sent direct actions brought to establish the supremacy



4

of federal law by those most directly affected by pre­
empted state laws, there could well be no meaningful 
remedy for state noncompliance with the Constitution’s 
fundamental safeguards.

ARGUMENT

I. T h e  C o u r t s ’ Lo n g s t a n d in g  A u t h o r it y  T o  E n ­
f o r c e  T h e  C o n s titu tio n  T h r o u g h  D ir e c t  A ctio n s  
H a s  B e e n  P a r tic u l a r l y  C r itic a l  F o r  C ivil  R ig h ts  
A n d  C ivil L ib e r t ie s

This Court has long recognized that the strictures 
of the Constitution may be enforced through direct ac­
tions for equitable relief, regardless whether Congress 
has enacted legislation specifically establishing a cause 
of action for such relief. So long as the court has sub­
ject-matter jurisdiction over the claim, separate legisla­
tion establishing a cause of action has never been nec­
essary 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 Constitu­
tion’s status as the supreme law of the land. See Santa 
Rosa Br. 13-18. As the Court recognized in Marbury v. 
Madison, 5 U.S. (1 Cranch) 137 (1803), judicial review is 
necessary as a check against the aggrandizement of



5

power by the political branches. These structural prin­
ciples 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 Marshall 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 legislation may 
channel the way in which constitutional claims are en­
tertained by the courts, the courts have long under­
stood that the right to compel compliance with the Con­
stitution is not contingent on the assent of the political 
branches. See Webster v. Doe, 486 U.S. 592, 603 (1988) 
(stressing that a ‘“serious constitutional question”’ 
would arise if the political branches attempted to pre­
clude 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 peo­
ple and the legislature, in order ... to keep the latter 
within the limits assigned to their authority.”).

A. Civil Rights Claims Have Long Been Enforce­
able Through Direct Actions

The ability to enforce rights directly under the 
Constitution has been particularly important for mi­
norities, immigrants, low-income individuals, and other 
persons who have faced systemic barriers in our ma- 
joritarian political process and thus have often de­
pended on the federal courts to secure their rights 
when Congress and the Executive Branch have been



6

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’ en­
forcement of their rights directly under the Constitu­
tion. And that was particularly true in the long period 
before this Court’s decision in Monroe v. Pape, 365 U.S. 
167 (1961), revived 42 U.S.C. § 1983 as a vehicle for en­
forcement of constitutional rights.

Many landmark civil rights decisions resulted from 
direct actions to enforce the Constitution. One such 
case, Bolling v. Sharpe, 347 U.S. 497 (1954), is a key­
stone 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 that 
racial segregation in the District’s public schools vio­
lated the Fifth Amendment. The Court nowhere sug­
gested that the plaintiffs’ ability to be heard on their 
due process claim depended on their being able to point 
to a statutory cause of action, such as § 1983.3

2 See Chambers v. Florida, 309 U.S. 227, 241 (1940) (“Under 
our constitutional system, courts stand against any winds that 
blow as havens of refuge for those who might otherwise suffer be­
cause they are helpless, weak, outnumbered, or because they are 
non-conforming victims of prejudice and public excitement.”).

3 Indeed, at the time, it was an open question whether § 1983 
applied to the District of Columbia. The Court did not address the 
question until District of Columbia v. Carter, 409 U.S. 418 (1973), 
which held that § 1983 did not apply to persons acting under color 
of D.C. law. Congress later amended § 1983 to apply to such per­
sons. Act of Dec. 29,1979, Pub. L. No. 96-170, § 1, 93 Stat. 1284.



7

Desegregation in higher education was advanced 
through another direct constitutional action, McLaurin 
v. Oklahoma 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 
that the state law prohibiting integrated schools de­
prived 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 plain­
tiff returned to the district court to seek injunctive re­
lief, which the district court denied. The Supreme 
Court reversed, holding that the amended state law 
permitting segregated facilities deprived McLaurin of 
his right to equal protection. Id. at 642. The Court no­
where suggested that McLaurin’s ability to bring his 
constitutional claim depended on a statutory cause of 
action.4

4 Another landmark desegregation case, Brown v. Board of 
Education, 347 U.S. 483 (1954)—which also did not mention the 
predecessor statute to § 1983—can be seen as a direct constitu­
tional action as well, although commentators disagree on how to 
characterize that case. Compare Berzon, Securing Fragile Foun­
dations: Affirmative Constitutional Adjudication in Federal 
Courts, 84 N.Y.U. L. Rev. 681, 685-686 (2009) (characterizing 
Brown as a direct constitutional action) and Bandes, Reinventing 
Bivens/ The Self-Executing Constitution, 68 S. Cal. L. Rev. 289, 
355 (1995) (same), with Blackmun, Section 1983 and Federal Pro­
tection of Individual Rights—Will the Statute Remain Alive or 
Fade Away?, 60 N.Y.U. L. Rev. 1, 1-2, 19 (1985) (characterizing 
Brown as a § 1983 suit) and Smolla, Federal Civil Rights Acts 
§ 14:2, at 391-392 (3d ed. 2011) (same). Regardless, Bolling dem­
onstrates that there is a direct right of action under the Constitu­
tion to challenge the legality of racial segregation in public schools.



In an equally important decision for minority vot­
ing rights, the Court in Terry v. Adams, 345 U.S. 461 
(1953), sustained a constitutional challenge by black 
citizens to one of a series of schemes to maintain 
whites-only primary elections in Texas. Having aban­
doned 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 discrimina­
tory primary as unconstitutional. Id. at 470; see also id. 
at 467 n.2 (plurality opinion) (noting that 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 grandfa­
ther clauses under the Fifteenth Amendment, even 
though Congress had not enacted specific legislation 
reaching primary elections, based on “the self­
executing power of the 15th Amendment,” id. at 368.

Several of this Court’s pathmarking decisions es­
tablishing the rights of noncitizens also reached the 
Court by way of direct action. For example, in Truax 
v. Raich, 239 U.S. 33 (1915), this Court held that an 
Arizona statute prohibiting the employment of nonciti­
zens violated their rights to equal protection under the 
Fourteenth Amendment. The Court did not suggest 
the case was before it under a statutory cause of action 
such as § 1983, but rather stressed that the plaintiff had 
invoked the equitable power of the district court to re­
strain unconstitutional action. Similarly, in Terrace v. 
Thompson, 263 U.S. 197 (1923), the Court, although re­
jecting an immigrant’s constitutional claim on the mer­
its, stressed that the power to compel compliance with 
the Constitution rested on the courts’ traditional equi­
table powers, noting that equity jurisdiction will be ex­
ercised to enjoin unconstitutional state laws “wherever



9

it is essential in order effectually to protect property 
rights and the rights of persons against injuries other­
wise irremediable.” Id. at 214.

Similarly, one of this Court’s leading decisions on 
the meaning of “liberty” within the Due Process 
Clause, Pierce v. Society o f 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 that would have forced all children to at­
tend 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 
that “ [t]he question as to equitable jurisdiction is a sim­
ple one, and it may be affirmed that, without contro­
versy, the jurisdiction of equity to give relief against 
the violation or infringement of a constitutional right, 
privilege, or immunity, threatened or active, to the det­
riment or injury of a complainant, is inherent, unless 
such party has a plain, speedy, and adequate remedy at 
law.” Society of Sisters v. Pierce, 296 F. 928, 931 (D. 
Or. 1924) (emphasis added).

This theme—that the courts have inherent author­
ity to restrain violations of the Constitution, so long as 
they have subject-matter jurisdiction—runs through­
out 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 that “it is estab­
lished practice for this Court to sustain the jurisdiction 
of federal courts to issue injunctions to protect rights 
safeguarded by the Constitution and to restrain indi­
vidual state officers from doing what the 14th Amend­
ment forbids the State to do”—without any mention of 
a statutory vehicle such as § 1983. And although Jus­



10

tices of this Court have debated whether damages 
should be available to remedy past constitutional viola­
tions in the absence of a statutory cause of action, see 
Bivens v. Six Unknown Named Agents o f Federal Bu­
reau of Narcotics, 403 U.S. 388 (1971); Correctional 
Services Corp. v. Malesko, 534 U.S. 61, 75 (2001) 
(Scalia, J., concurring), the Court has never questioned 
courts’ inherent authority to enjoin threatened or ongo­
ing 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 ac­
tions 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. 43-44), the Court has entertained such direct ac­
tions to enforce the Constitution regardless whether 
that claim was brought to prevent a threatened en­
forcement action and might have been raised in defense 
to such an action. See infra pp. 18-22; U.S. Cert. 
Amicus Br. 17-18 (acknowledging that “not all of this 
Court’s” preemption cases involved claims raised in de­
fense to enforcement actions). Indeed, where the plain­
tiff could not bring the claim defensively to an enforce­
ment 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 constitu­
tional rights. In the desegregation and voting rights 
cases discussed above, for example, there was no clear 
way that the plaintiffs seeking to vindicate their consti­
tutional rights could have obtained a ruling on the mer­
its of their claims except through affirmative litigation. 
And in Truax, the district court observed that the non­
citizen’s constitutional claim presented an appropriate



11

case for the exercise of equity power because under the 
challenged Arizona statute only employers, not (non­
citizen) employees, were subject to criminal prosecu­
tion; thus the noncitizen employee would have had no 
other forum for his claim to be heard. See 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 claim, that provides a stronger— 
not a weaker—rationale for the courts to entertain a 
direct equitable action.

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

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

One of the earliest examples is Osborn v. Bank of 
United States, 22 U.S. (9 Wheat.) 738 (1824). This 
Court resolved the Bank of the United States’ suit 
against the Ohio Auditor for collecting a state tax that 
conflicted with the federal statute that created the 
Bank. Although no statute created a cause of action for 
the Bank, this Court found that the dispute warranted 
the “interference of a Court,” and it held the Ohio law 
unconstitutional on the ground that it was “repugnant 
to a law of the United States” and therefore void under 
the Supremacy Clause. Id. at 838, 868.

In the years after Osborn, and with increasing fre­
quency after Congress provided for federal-question 
jurisdiction in 1875, courts routinely entertained suits 
to enforce directly a broad range of constitutional pro­
visions, including the Contracts Clause, the Fourteenth



12

Amendment’s Due Process Clause, and the dormant 
Commerce Clause. See, e.g., Hays v. Port o f Seattle, 
251 U.S. 233 (1920) (Due Process Clause and Contracts 
Clause); Vicksburg Waterworks Co. v. Mayor & A l­
dermen 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); A l­
len v. Baltimore & Ohio R.R. Co., 114 U.S. 311 (1884) 
(Contracts Clause). Particularly noteworthy are the 
direct actions for equitable relief brought to enforce the 
Contracts Clause, because it still is not settled in this 
Court whether claims under the Contracts Clause may 
be brought under § 1983. See Dennis v. Higgins, 498 
U.S. 439, 456-457 (1991) (Kennedy, J., dissenting); 
Crosby v. City o f Gastonia, 635 F.3d 634, 640-641 (4th 
Cir. 2011) (noting issue), petition for cert, filed, No. 10- 
1479 (U.S. June 8, 2011). Nonetheless, the Court ex­
plained in Vicksburg Waterworks that the Contracts 
Clause claim was properly before it because “the case 
presented by the bill is within the meaning of the Con­
stitution of the United States and within the jurisdic­
tion of the circuit court as presenting a Federal ques­
tion”—without suggesting that a statutory cause of ac­
tion was also necessary. 185 U.S. at 82. The Court 
more recently upheld a Contracts Clause claim in such 
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 that railroads could charge, 
a group of railroad shareholders sued him to enjoin en­



13

forcement of that law, arguing that it violated the 
Commerce Clause and Due Process Clause of the Four­
teenth Amendment. The Court concluded that the 
Eleventh Amendment does not bar suits against state 
officers to enjoin violations of the Constitution or fed­
eral law. Id. at 159-160. The Court also concluded that 
the federal courts had jurisdiction because the case 
raised “Federal questions” directly under the Constitu­
tion. Id. at 143-145. The Court thus viewed the Consti­
tution—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 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 that law.” Green v. Mansour, 474 
U.S. 64, 68 (1985). Indeed, scholars have concluded that 
“the best explanation of Ex parte Young and its prog­
eny 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 con­
stitutional claims brought against the federal govern­
ment without suggesting that a statutory cause of ac­
tion was necessary for those claims to be before the 
courts, and where there was no evident alternative fo­
rum for those claims to be heard (such as under the

5 Wright et ah, Federal Practice and Procedure § 3566, at 292 
(3d ed. 2008).



14

Administrative Procedure Act or in defense to an en­
forcement action). See Printz v. United States, 521 U.S. 
898 (1997); New York v. United States, 505 U.S. 144 
(1992); South Carolina v. Baker, 485 U.S. 505 (1988); 
South Dakota v. Dole, 483 U.S. 203 (1987); Youngstown 
Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952); see 
also Free Enterprise Fund v. Public Co. Accounting 
Oversight Bd., 130 S. Ct. 3138, 3151 & n.2 (2010) (ruling 
that Appointments Clause claim was properly before 
the courts, despite the absence of a statutory cause of 
action).6

C. The Supremacy Clause As Well May Be En­
forced Through Direct Equitable Actions

Given the courts’ historical willingness to entertain 
direct actions to enforce the Constitution, it would be 
surprising to learn that the Supremacy Clause, alone 
among the Constitution’s provisions, could not be so en­
forced. As the Framers explained, the Supremacy 
Clause is fundamental 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 im­
mediately and necessarily from the institution of a fed­
eral government.” Id.; see also Santa Rosa Br. 30-31. 
In keeping with historical tradition, direct actions un­
der the Supremacy Clause have played an important

In its most recent Term, this Court reiterated that it will 
entertain individuals’ challenges based on federal structural con­
stitutional principles. See Bond, 131 S. Ct. at 2363-2364 (“The in­
dividual, in a proper case, can assert injury from governmental 
action taken in excess of the authority that federalism defines.”); 
see also id. at 2365 (“The structural principles secured by the 
separation of powers protect the individual as well.” ).



15

role in vindicating the supremacy of federal law, as 
Osborn and Ex parte Young illustrate.

This Court has implicitly recognized a right of ac­
tion under the Supremacy Clause to enjoin preempted 
state law in many contexts—including cases where the 
preempting federal law was enacted pursuant to Con­
gress’s Spending Clause powers, and where state par­
ticipation in the federal program was voluntary.7 By 
routinely resolving such claims on the merits, without 
regard to whether a federal statute confers a right of 
action, this Court has established not only that federal 
courts have subject-matter jurisdiction over claims to 
enjoin preempted state law but that there is a right of 
action under the Supremacy Clause for such claims. 
See U.S. Cert. Amicus Br. 15-18 (recognizing that the 
Court has often decided preemption claims on their 
merits, implicitly assuming that a cause of action exists 
under the Supremacy Clause to challenge preempted 
state law). It is particularly noteworthy that the Court 
entertained such Supremacy Clause claims without ref­

7 See, e.g., Arkansas Dep’t of Health & Human Servs. v. Ahl- 
bom, 547 U.S. 268 (2006) (federal Medicaid law preempts state 
statute imposing liens on tort settlement proceeds). In Pharma­
ceutical Research & Manufacturers of America v. Walsh, 538 U.S. 
644 (2003) (“PhRMA”), seven Justices (four in the plurality and 
three in dissent) reached and resolved the merits of plaintiffs 
claim that the challenged state law was preempted by the federal 
Medicaid statute. See id. at 649-670 (plurality opinion) (finding on 
the merits that state law was not preempted); id. at 684 (O’Connor, 
J., concurring in part and dissenting in part) (finding on the merits 
that the state law was preempted). By so doing, seven Justices 
implicitly concluded both that the Court had the authority to re­
solve the case under federal-question jurisdiction and that the 
plaintiff had a claim to injunctive relief under the Supremacy 
Clause. See id. at 668 (plurality opinion).



16

erence 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 interfer­
ence. 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 o f Seattle, 265 U.S. 332 
(1924). That tradition continues unbroken to this day.8

In short, “the rule that there is an implied right of 
action to enjoin state or local regulation that is pre­
empted by a federal statutory or constitutional provi­

g
See, e.g., Cuomo v. Clearing House Ass’n, L.L.C., 129 S. Ct. 

2710 (2009) (regulations promulgated under National Bank Act 
preempt enforcement of executive subpoenas from state Attorney 
General); Rowe v. New Hampshire Motor Transp. Ass’n, 552 U.S. 
364 (2008) (Federal Aviation Administration Authorization Act 
preempts state requirements related to the transport of tobacco 
products); Ahlborn, 547 U.S. 268 (federal Medicaid law preempts 
state statute imposing liens on tort settlement proceeds); Watters 
v. Wachovia Bank, N.A., 550 U.S. 1 (2007) (National Bank Act pre­
empts state supervision of mortgage-lending activities by national 
bank affiliates); PhRMA, 538 U.S. at 649-670 (plurality opinion) 
(Medicaid Act did not preempt state prescription-drug rebate law); 
Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001) (Federal Ciga­
rette Labeling and Advertising Act preempts state regulations on 
cigarette advertising); Crosby v. National Foreign Trade Council, 
530 U.S. 363 (2000) (federal Burma statute preempts state statute 
barring state procurement from companies that do business with 
Burma); United States v. Locke, 529 U.S. 89 (2000) (various federal 
statutes preempt state regulations concerning, inter alia, the de­
sign and operation of oil tankers); Foster v. Love, 522 U.S. 67 
(1997) (federal election statute preempts Louisiana’s “open pri­
mary” statute); Shaw v. Delta Air Lines, Inc., 463 U.S. 85 (1983) 
(ERISA preempts portions of state benefits law); see also Sloss, 
Constitutional Remedies for Statutory Actions, 89 Iowa L. Rev. 
355, 365-400 (2004) (canvassing this Court’s case law on preemp­
tion claims).



17

sion—and that 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 o f 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. at 107, but it nowhere suggests that 
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 en­
forceable under § 1983,” id. (emphasis added) means 
only that certain preemption claims may not be brought 
under § 1983, not that 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 that very point, explaining that de­
nying relief under § 1983 “would not leave the company 
without a remedy” because “§ 1983 does not provide 
the exclusive relief that the federal courts have to of­
fer,” and that the plaintiffs could seek an injunction on 
preemption grounds. Id. at 119 (Kennedy, J., dissent­
ing).9

9 Section 1983 is not duplicative of the right of action for in­
junctive relief under the Supremacy Clause. By enacting § 1983, 
Congress expanded the kinds of state action that private litigants 
could challenge and the remedies they could seek beyond those 
available in suits directly under the Constitution. See Cal. Phar­
macists Br. 35-39; Dominguez Br. 29-34; Santa Rosa Br. 27-28. 
That § 1983 has been an important mechanism to secure constitu­
tional rights by providing damages remedies against state and lo­
cal officials does not mean that § 1983 is the only avenue through 
which unconstitutional state action can be challenged.



18

Although petitioner and his amici have acknowl­
edged that the federal courts have previously enter­
tained direct actions to enforce the Constitution (in­
cluding the Supremacy Clause), they have suggested 
that, where Congress has not provided a vehicle such 
as § 1983 for such claims to be entertained, then those 
claims should be remitted to state courts, under what­
ever procedures the States might have provided for 
them to be heard—or that, at most, the federal courts 
should entertain such direct actions only when they are 
brought to prevent the threatened imminent enforce­
ment of an unconstitutional or preempted state law. 
See Pet. Br. 43-44; National Governors Ass’n et al. 
Amicus Br. 22-26; U.S. Merits Amicus Br. 19-22.10 
Those suggestions should be rejected for several rea­
sons.

First, those arguments are inconsistent with this 
Court’s uniform precedent. This Court has entertained 
and sustained many direct equitable actions under the 
Constitution, including the Supremacy Clause, and also 
including preemption claims based on a federal spend­
ing statute, even when there was no evident enforce­
ment action to which the federal claim might be raised 
as a defense. For example, in Crosby v. National For­
eign Trade Council, 530 U.S. 363 (2000), the challenged

10 The United States has taken the position elsewhere that 
the Supremacy Clause provides a direct cause of action that is not 
limited to asserting a defense to a state enforcement action. See 
Compl., United States v. Arizona, 10-cv-01413 (D. Ariz. July 6, 
2010) (filed by the United States as plaintiff challenging Arizona 
immigration law, seeking declaratory and injunctive relief and as­
serting “Violation of the Supremacy Clause” as its first cause of 
action); Compl., United States v. Alabama, ll-ev-02746 (N.D. Ala. 
Aug. 1,2011) (similar, in challenge to Alabama law).



19

Massachusetts law barred government procurement of 
goods and services from companies doing business with 
Burma. See id. at 366-367. There was no “enforce­
ment” action in which the companies could raise pre­
emption as a defense; the plaintiffs simply could no 
longer get government contracts. This Court held that 
the state law was preempted, necessarily presuming 
that there was a right of action under the Supremacy 
Clause that could be asserted directly and not merely in 
defense of an enforcement action. Id. at 367; see also 
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 preemp­
tion claim on the merits where that claim was raised 
affirmatively and not in defense to an enforcement ac­
tion); supra pp. 10-11 (noting other examples of direct 
constitutional claims being entertained where they 
could not have been raised as defenses to enforcement 
actions).

Second, a rule requiring preemption claims to be 
advanced defensively only, while allowing claims based 
on a violation of constitutional rights to go forward in 
federal court under § 1983, would be extraordinarily 
inefficient and would undermine the effective vindica­
tion of federal law. Litigants frequently pursue both 
preemption theories and other constitutional claims. 
This Court’s cases teem with examples: businesses 
commonly pursue both preemption claims and claims 
under the Commerce, Contracts, or Due Process 
Clauses; immigrants 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 turn to the preemp­
tion claim first in order to avoid reaching difficult con­



20

stitutional questions. See, e.g., Crosby, 530 U.S. 363 
(holding state procurement statute preempted by fed­
eral Burma statute, and thereby avoiding dormant For­
eign Commerce Clause claim); Hines, 312 U.S. 52 (hold­
ing Pennsylvania registration law for noncitizens pre­
empted 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, but were 
required to pursue preemption theories not cognizable 
under § 1983 only in state court, then they would be 
forced either to divide their federal claims between fed­
eral 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 
contrary to the strong congressional policy in favor of 
affording a federal forum for such claims. See, e.g., 
Patsy v. Board of Regents o f 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.

In addition, the rule proposed by petitioner and its 
amici would not adequately assure the supremacy of 
federal law. Many Supremacy Clause claims cannot be 
raised defensively at all, because there is no enforce­
ment action in which they can be raised; in such circum­
stances, an affirmative direct action under the Consti­
tution is the only way in which the supremacy of fed­
eral law could be established. See Sloss, Constitutional 
Remedies for Statutory Actions, 89 Iowa L. Rev. 355,



21

406 (2004) (discussing such claims). And even when a 
litigant might be able to assert his federal claim in de­
fense of state enforcement actions or in defense to state 
common law claims, his ability to establish the suprem­
acy of federal law should not be dependent on the ven­
ues that state law has happened to make available.11 
Indeed, this Court has long recognized that “it is one of 
the most valuable features of equity jurisdiction, to an­
ticipate and prevent a threatened injury.” Vicksburg 
Waterworks, 185 U.S. at 82.

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 legisla­
tive grace or the vagaries of state law. Had § 1983 
never been enacted, it could hardly be the case that 
state laws providing for segregated schools, white pri­
maries, and restrictions on immigrants could have gone 
unchallenged. Plaintiffs could challenge, and did chal­
lenge, such unconstitutional state laws directly under 
the Supremacy Clause. And nothing in the Supremacy 
Clause suggests that it may not also be used directly to 
challenge state laws because they conflict with a fed­
eral law, and not (or not just) the federal Constitution. 
The Supremacy Clause itself provides that both the 
Constitution “and the Laws of the United States which 
shall be made in Pursuance thereof ... shall be the su­
preme Law of the Land.” U.S. Const, art. VI (emphasis 
added).

11 Cf. Haywood v. Drown, 129 S. Ct. 2108 (2009) (state courts 
cannot refuse to entertain certain classes of federal claims); 
Howlett ex rel. Howlett v. Rose, 496 U.S. 356 (1990) (state court 
cannot apply state sovereign-immunity principles to refuse adjudi­
cation of federal law claim); Testa v. Katt, 330 U.S. 386 (1947) 
(state courts cannot discriminate against federal claims).



22

Finally, nothing in the Supremacy Clause or this 
Court’s precedent indicates that statutes enacted pur­
suant 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 Spend­
ing Clause statutes. Indeed, numerous Spending 
Clause statutes—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 pro­
tecting civil liberties, and many others—such as Medi­
caid and the Supplemental Nutrition Assistance Pro­
gram (previously called the Food Stamp Program)— 
provide a critical safety net on which low-income indi­
viduals rely for survival. II.

II. Precluding Direct Rights Of Action Under The 
Supremacy Clause Would Have Broad And 
Harmful Consequences For Maintaining The Su­
premacy Of Federal Law

An action under the Supremacy Clause provides an 
important—and sometimes the only—avenue to vindi­
cate the supremacy of federal law. Barring a right of 
action under the Supremacy Clause could effectively 
foreclose this critical avenue for persons, especially mi­
norities, immigrants, and low-income individuals, who 
depend on federal law and who would otherwise be sub­
ject to invalid state and local laws.



23

A. Minorities, Immigrants, And Low-Income In­
dividuals Continue To Depend On Direct Ac­
tions Under The Supremacy Clause To Chal­
lenge Invalid State And Local Laws

Racial minorities, immigrants, and low-income in­
dividuals 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 that 
conflicted with the federal legislation.

For example, several plaintiffs in recent years have 
used the Supremacy Clause to challenge the increasing- 
number of state laws that seek to restrict immigrants’ 
rights, including immigrants’ employment opportuni­
ties. In Chamber o f Commerce v. Edmondson, 594 
F.3d 742 (10th Cir. 2010), plaintiffs claimed that provi­
sions of the Oklahoma Taxpayer and Citizen Protection 
Act of 2007, which created new employee verification 
rules and imposed sanctions on employers that alleg­
edly hire undocumented immigrants, conflicted with 
federal immigration law, which sets forth a comprehen­
sive scheme prohibiting the employment of such indi­
viduals. The Tenth Circuit, which upheld in part a pre­
liminary injunction against enforcement of the state 
law, explained that a “party may bring a claim under 
the Supremacy Clause that a local enactment is pre­
empted even if the federal law at issue does not create 
a private right of action.” Id. at 756 n.13 (internal quo­
tation marks omitted); see also Chamber o f Commerce 
v. Whiting, 131 S. Ct. 1968 (2011) (adjudicating preemp­
tion challenge to Arizona law providing for the revoca­
tion or suspension of licenses in certain circumstances



24

of state employers who 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 that affect immigrants’ access to 
housing and other vital services. See Georgia Latino 
Alliance for Human Rights v. Deal, No. ll-cv-1804, 
2011 WL 2520752, at *6 (N.D. Ga. June 27, 2011) (find­
ing independent jurisdictional grounds under the Su­
premacy Clause to allow a preemption challenge 
against Georgia’s Illegal Immigration and Enforcement 
Act of 2011 and entering preliminary injunction); Bu- 
quer v. City o f Indianapolis, No. ll-cv-708, 2011 WL 
2532935, at *2 (S.D. Ind. June 24, 2011) (considering a 
Supremacy Clause challenge to an Indiana law that al­
lows, inter alia, law enforcement officers to make a 
warrantless arrest of an immigrant under certain con­
ditions and entering preliminary injunction); Villas at 
Parkside Partners v. City o f Farmers Branch, 496 F. 
Supp. 2d 757, 777 (N.D. Tex. 2007) (considering a Su­
premacy Clause challenge to city ordinance that essen­
tially “created its own classification scheme for deter­
mining which noncitizens may rent an apartment” in 
the city and entering preliminary injunction), perma­
nent injunction entered, 577 F. Supp. 2d 858, 879 
(2008); League o f 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, re­
stricted immigrants’ access to health care, social ser­
vices, 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



25

rules unlawfully allowed the Chicago Housing Author­
ity to terminate her public housing assistance in cir­
cumstances other than those specified and limited by 
the United States Housing Act of 1937. Kemp sought 
to enjoin the local law as preempted under the Suprem­
acy Clause. Although the court ultimately did not 
grant relief because of the Anti-Injunction Act, it con­
cluded that the Supremacy Clause “create[s] rights en­
forceable in equity proceedings in federal court,” and 
that it could therefore exercise jurisdiction over 
Kemp’s preemption claim. Id. at *3 (internal quotation 
marks omitted).

Persons receiving public assistance have also in­
voked the Supremacy Clause to challenge state laws 
that terminate medical or other benefits in contraven­
tion of federal law. For example, in Comacho v. Texas 
Workforce Commission, 408 F.3d 229 (5th Cir. 2005), 
the court invalidated under the Supremacy Clause 
state regulations that expanded the circumstances, be­
yond those allowed by federal law, under which Medi­
caid benefits could be cut off for low-income adults re­
ceiving assistance under the federal Temporary Assis­
tance to Needy Families program.

Finally, the Eighth Circuit in Lankford v. 
Sherman, 451 F.3d 496 (8th Cir. 2006), relied directly 
on the Supremacy Clause to preliminarily enjoin a Mis­
souri regulation that limited Medicaid coverage of du­
rable medical equipment to certain populations, making 
most Medicaid recipients in Missouri ineligible to re­
ceive such items even if medically necessary. Id. at 509. 
The court found that the regulation conflicted with 
Medicaid’s requirements and goals and therefore was 
likely preempted under the Supremacy Clause. Id. at 
513 (holding that plaintiffs had “established a likelihood



26

of success on the merits of their preemption claim” for 
obtaining a preliminary injunction).

The Supremacy Clause right of action therefore 
remains critically important to minorities, immigrants, 
and low-income persons in our society who rely on it for 
vindication of federal law. The availability of that di­
rect action ensures that 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 effec­
tively insulated from judicial review.

B. Precluding Rights Of Action Under The Su­
premacy Clause Would Undermine Important 
Federal Interests

Precluding a right of action under the Supremacy 
Clause would leave important rights and interests ef­
fectively unprotected. Not only will the rights of indi­
vidual litigants seeking to invalidate unconstitutional 
state laws be harmed, but important federal supremacy 
interests could go unprotected as well.

First, precluding rights of action under the Su­
premacy Clause would leave few, if any, effective reme­
dies to force state compliance with many federal laws 
that are intended to benefit minorities, immigrants, and 
low-income persons in our society. In the context of 
laws enacted under Congress’s Spending Clause power, 
the termination of federal funding may sometimes be 
theoretically available to remedy the State’s failure to 
comply with its obligations under the Medicaid Act or 
other Spending Clause laws, see PhRMA, 538 U.S. at 
675 (Scalia, J., concurring in the judgment), but that 
remedy is so rare and drastic as to be effectively un­
available as a meaningful enforcement tool. As com­
mentators have explained, both political considerations



27

and procedural hurdles make withdrawal of federal 
funding an illusory remedy. See, e.g., Mank, Suing Un­
der § 1983: The Future After Gonzaga University v. 
Doe, 39 Hous. L. Rev. 1417, 1431-1432 (2003) (“ [A]s a 
practical matter, federal agencies rarely invoke the 
draconian remedy of terminating funding to a state 
found to have violated the [federal] conditions because 
there are often lengthy procedural hurdles that allow a 
state to challenge any proposed termination of funding, 
and members of Congress from that state will usually 
oppose termination of funding.”); Perkins, Medicaid: 
Past Successes and Future Challenges, 12 Health Ma­
trix 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 
that has rarely, if ever, been followed through to its 
conclusion.”); Key, Private Enforcement o f Federal 
Funding Conditions Under § 1983: The Supreme 
Court's Failure to Adhere to the Doctrine o f Separation 
of Powers, 29 U.C. Davis L. Rev. 283, 292-293 (1996) 
(“ [OJften the agency’s only enforcement mechanism is a 
cutoff of federal funds for the program[,| ... [which] is 
rarely, if ever, invoked.”).12

Moreover, termination of federal funding would in 
many circumstances be counterproductive and contrary 
to Congress’s intent that the funding program be im­
plemented to provide a wide benefit. Indeed, persons

12 As respondents point out (Cal. Pharmacists Br. 2-3, 17), 
this case shows how difficult it can be for the Executive Branch to 
enforce the supremacy of federal law by itself; even after the re­
sponsible federal agency disapproved state rate cuts as inconsis­
tent with federal law, the State continued to implement its invalid 
legislation.



28

who receive crucial benefits and services from federal 
programs usually do not want federal funding to be 
terminated. Terminating federal funding would not 
protect the interests of those injured by the State’s 
noncompliance with federal law; rather, it would harm 
the very people Congress intended to benefit. See 
Cannon v. University o f Chi., 441 U.S. 677, 704-705 
(1979) (explaining that “termination of federal financial 
support for institutions engaged in discriminatory prac­
tices ... is ... severe” and “may not provide an appro­
priate means of accomplishing” the purposes of the 
statute); see also Hills, 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 fed­
eral funds from noncomplying state or local officials is 
usually too drastic for the federal government to use 
with any frequency: withdrawal of funds wall 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 for the important role that 
private parties play in enforcing the supremacy of fed­
eral statutes. As the United States previously argued 
in this case, “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 cir­
cumstances.” See U.S. Cert. Amicus Br. 19. In such 
circumstances, an injunction would force a State to 
comply with the federal provision at issue without 
harming the intended beneficiaries of the federal pro­
gram.



29

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. Pri­
vate rights of action are necessary because the gov­
ernment lacks the resources to police preemption dis­
putes between States and private parties. See Sloss, 
Constitutional Remedies For Statutory Actions, 89 
Iowa L. Rev. at 404. Private rights of action “increase 
the social resources devoted to law enforcement, thus 
complementing government enforcement efforts.” Ste­
phenson, Public Regulation of Private Enforcement: 
The Case for Expanding the Role o f Administrative 
Agencies, 91 Va. L. Rev. 93, 108 (2005); see also Ahl- 
bom, 547 U.S. at 291. In short, absent a right of action 
under the Supremacy Clause there could well be no 
meaningful remedy at all for state noncompliance.13

A private right of action under the Supremacy 
Clause serves other important values as well. The Su­
premacy Clause supports the structural guarantee of

13' Indeed, it is not entirely clear that the federal government 
would always be authorized to sue to compel enforcement of fed­
eral law. Private plaintiffs directly affected by state laws have 
Article III standing to sue to enjoin their enforcement; the federal 
government might not. And if private plaintiffs did not have a di­
rect right of action to sue under the Supremacy Clause, it might 
well be questioned whether the United States could sue without 
its own statutory cause of action. Cf. United States v. City of Phi- 
la., 644 F.2d 187 (3d Cir. 1980) (holding that United States may not 
sue local governments for injunction against violation of Four­
teenth Amendment, absent statutory authority to sue). The Court 
need not resolve those issues in this case, but at a minimum there 
would be no assurance that enforcement by the United States 
would necessarily be available if private lawsuits were not permit­
ted.



30

federalism—namely, that federal law will remain para­
mount. And that interest can only be effectively vindi­
cated by ensuring that preempted state laws are in­
validated—a goal that, for the reasons described above, 
can best be achieved through a private right of action. 
In addition, a private right of action, by allowing robust 
enforcement for preemption claims, fosters uniformity 
and predictability in the application of both federal and 
state law.14 Thus, in order to realize the Constitution’s 
fundamental promise that federal law will remain 
paramount over invalid state and local laws, it is essen­
tial that this Court continue—as it has done for nearly 
two hundred years—to allow litigants to bring preemp­
tion challenges directly under the Supremacy Clause.

CONCLUSION

The judgments of the court of appeals should be af­
firmed.

14 Preemption claims in immigration and other areas of law 
have also been critical to preserving the federal government’s 
paramount role in foreign policy. See, e.g., Hines, 312 U.S. at 63 
(“Our system of government is such that the interest of the cities, 
counties and states, no less than the interest of the people of the 
whole nation, imperatively requires that federal power in the field 
affecting foreign relations be left entirely free from local interfer­
ence.”); id. at 66-67; Toll v. Moreno, 458 U.S. 1,10-13 (1982).



31

Respectfully submitted.

M ic h a e l  D. G o tte sm a n  
W ilm er  C u tler  P ickering  

H a l e  a n d  D o r r  l l p  
399 Park Avenue 
New York, N.Y. 10022

St e v e n  R . Sh a p ir o  
A m erican  C iv il  L iberties  

F o u n d a t io n  
125 Broad Street 
New York, N.Y. 10025

V ic to r  V ir a m o n t e s  
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  a n d  
E d u c a t io n a l  F u n d  

634 S. Spring Street 
11th Floor
Los Angeles, CA 90014

P a u l  R .Q . W o lfso n  
Counsel of Record 

Sh ir l e y  Cassin  W oodward  
M a d h u  C h u gi-i 
W ilm er  C u tler  P ickering  

H a l e  a n d  D o r r  l l p  
1875 Pennsylvania Ave., N.W. 
Washington, D.C. 20006 
(202) 663-6000 
paul.wolfson@wihnerhale.com

J ohn P a y to n  
D ir e c t o r -C o u n se l  
NAACP L egal  D efen se  an d  

E d u c a t io n a l  F u n d , I n c . 
99 Hudson Street, Suite 1600 
New York, N.Y. 10013

J osh u a  C iv in
NAACP L egal  D efen se  and  

E d u c a tio n a l  F u n d , In c . 
1444 I Street, N.W. 
Washington, D.C. 20005

A u g u s t  2011

mailto:paul.wolfson@wihnerhale.com