[Congressional Record Volume 157, Number 57 (Monday, May 2, 2011)]
[Senate]
[Pages S2574-S2575]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                  FALL CASES BEFORE THE SUPREME COURT

  Mr. WHITEHOUSE. Mr. President, I wish to alert my colleagues to an 
important set of cases that will be heard by the Supreme Court this 
fall. The cases--consolidated under the caption Maxwell-Jolly v. 
Independent Living Center--concern the ability of Americans to assert 
their constitutional rights in court. The issue before the Court is 
important not just to the parties involved but to the effective 
functioning of our constitutional system.
  The cases come to the Court out of California. In 2008, the State 
announced a plan to sharply reduce the reimbursements paid to medical 
providers under Medi-Cal, the State's Medicaid program. A broad range 
of parties--including pharmacies, medical clinics, hospitals, doctors, 
health care providers, senior citizens' groups, and Medicaid 
beneficiaries--brought suit asking for an injunction to stop the change 
from going into effect. They are not looking for money, just an order 
requiring California to follow Federal law.
  They argued that the California plan violated--and was preempted by--
the Federal Medicaid statute. In particular, they contended that the 
plan

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failed to ``assure that payments are consistent with efficiency, 
economy, and quality of care and are sufficient to enlist enough 
providers so that care and services are available . . . at least to the 
extent that such care and services are available to the general 
population,'' as required by 42 U.S.C. Sec.  1396a(a)(30)(A). In other 
words, they took California to court to make the State obey Federal law 
and ensure patients have access to the Medicaid benefits required by 
Congress.
  The court of appeals agreed with the plaintiffs' claims that the 
California plan was preempted by Federal law. But that wasn't the end 
of it. The Supreme Court decided to review the case. Denying review on 
the underlying issue of whether California's action is, in fact, 
preempted by Federal law, the Court has taken up the question whether 
the parties should be allowed to assert that California's plan is 
unconstitutional. The California attorney general has argued that they 
should not, claiming that private parties cannot have a day in court to 
raise a preemption claim, regardless whether the State's action is 
illegal under Federal law.
  This case will be significant for our country, and Constitution, for 
years to come.
  As my colleagues know, it is foundational to our system of government 
that States must comply with duly enacted laws of this Congress. The 
supremacy clause, in article VI of the Constitution, makes clear that 
the Constitution and ``the Laws of the United States which shall be 
made in Pursuance thereof . . . shall be the supreme Law of the Land; 
and the Judges in every State shall be bound thereby, any Thing in the 
Constitution or Laws of any State to the Contrary notwithstanding.''
  Our carefully balanced Federal system, designed by the Framers, would 
fall apart without the supremacy clause. As James Madison wrote in 
Federalist No. 44, without that clause we would be left ``a system of 
government founded on an inversion of the fundamental principles of all 
government; it would have seen the authority of the whole society every 
where subordinate to the authority of the parts; it would have seen a 
monster, in which the head was under the direction of the members.'' 
For this reason, the Supreme Court has enforced the supremacy clause 
since 1796, striking down State measures incompatible with Federal law.
  It has previously been widely accepted in the courts of appeals, 
legal treatises, and filings by the United States--that the American 
people can go to court to protect themselves from preempted State law.
  The Supreme Court has repeatedly allowed big corporations to argue in 
court that State actions are preempted by Federal laws and regulations. 
To take one example, in Chamber of Commerce of the United States v. 
Brown, 2008, business interests sued to enjoin enforcement of a 
California law that prohibited employers in that State from spending 
State funds to deter union organizing. The Supreme Court held that the 
National Labor Relations Act, NLRA, preempted the California law. It 
didn't tell the corporation that it could not assert this argument in 
the first place. So too, in Rowe v. New Hampshire Motor Transport 
Association, 2008, a group of transport carrier associations brought 
suit to argue that a Maine statute regulating tobacco delivery in order 
to protect minors was preempted by Federal law. Again, the Supreme 
Court found that the State law was preempted, striking it down without 
prohibiting the corporate interests from making their argument in 
court. And in Watters v. Wachovia Bank, 2007, the Court allowed a big 
national bank to argue that Federal law preempted Michigan's State 
banking regulations, once again without denying the corporate interest 
the chance to raise such an argument in court.
  Now is not the time to inhibit the supremacy clause and preclude 
regular Americans from having their Federal rights enforced in court, 
particularly when that privilege has been respected for corporations.
  If the Court does take that step, it will create a legal loophole 
that invites states to ignore Federal law, and weaken the supremacy 
clause. It will put Americans at risk, weakening hard-won statutory 
protections. Most important, it will warp the carefully balanced 
Federal system that has served us so well through the centuries.

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