Two words in a Supreme Court opinion handed down last week seem arcane, but may have substantial repercussions for how Congress drafts statutes and how courts interpret them. In Armstrong v. Exceptional Child Center, Inc., the Supreme Court confronted a suit by providers of certain Medicaid services. The providers sued Idaho state officials, arguing that the payments they received from the state were too low under the governing statute. Along the way to concluding that the providers had no cause of action, Justice Antonin Scalia’s majority opinion described the statutory provision — which instructs that states should “safeguard against unnecessary utilization of … care and services” while also providing payments “consistent with efficiency, economy, and quality of care” — as “judicially unadministrable.” Depending on how seriously one takes this phrase, the opinion could have ramifications well beyond the context of payment by states for Medicaid services.
{mosads}The question arises as to exactly what makes a statutory requirement “judicially unadministrable,” and why that might matter. The majority opinion in Armstrong comments that “[i]t is difficult to imagine a requirement broader and less specific.” On that basis, one might conclude that perhaps the language is so extremely vague that it would, if challenged as the basis for a delegation of authority to an agency, violate the nondelegation principle. (This is of great practical importance, since the nondelegation principle limits Congress’s freedom to delegate authority on executive agencies.) The court has held that a congressional delegation of authority does not run afoul of the nondelegation principle — and therefore is constitutional — so long as it is grounded on an intelligible principle. Decades of review of congressional delegations suggest that the “intelligible principle” threshold is a low hurdle, and it is hard to believe that the language of the statute in Armstrong, while vague, does not rise to the level of an “intelligible principle.”
That the court’s comments in Armstrong do not go to the nondelegation doctrine is consistent with the court’s use of the word “judicial” to modify “unadministrable”: Maybe the court meant only the statute at issue in Armstrong is so extreme that a court asked to interpret the statute simply must throw up its hands. But, as Justice Sonia Sotomayor’s dissenting opinion in Armstrong points out, the Supreme Court has directed that courts faced with ambiguous statutes that speak to a subject within the ambit of a federal agency defer to the agency’s interpretation of the statute. More vagueness simply increases the range of the agency’s interpretive freedom.
Another possibility is that what the Armstrong majority referred to as “judicial unadministrab[ility]” simply goes to whether courts should conclude that the statute at issue supports a private right of action, that is, a cause of action for private actors. Perhaps judicial “unadministrable” statutes can never form the basis of a private right of action. However, the majority opinion in Armstrong belies this possibility, basing its conclusion that there was no private right of action in that case not only on the fact that the statute was “judicially unadministrable,” but also on the fact that Congress provided an alternative remedy (the Department of Health and Human Services can cut funding to a state that is out of compliance with the statute). Indeed, there is every indication that, despite the description of the statutory language as “judicially unadministrable,” Congress could create an express cause of action based on this language. But if that’s true, one would think that the majority should not have suggested that the statute in Armstrong was entirely unadministrable.
A final possibility — probably the most likely — is that judicial unadministrability simply augurs against, but does not preclude, finding an implied private right of action. (An open question is whether this logic would apply only to equitable actions against state officials, like in Armstrong, or more generally to all inquiries as to whether a private right of action exists.) The question is of tremendous practical importance because, in the absence of a private right of action, private actors must rely on the federal government to compel compliance with federal law. It stands to reason (though the Court has not to date expressly stated) that, the vaguer the statutory language, the harder it is to ascribe to Congress an intent to provide for an implied right of action. Here again, though, the Armstrong majority would have been well advised to avoid the hyperbole of “judicially unadministrable.” A simple acknowledgment that the statutory language was “broad” (as both Justice Stephen Breyer’s concurring opinion and Justice Sotomayor’s dissent conceded) would have sufficed.
Nash is professor of law and David J. Bederman Research Professor (2014-15) at Emory University School of Law. He specializes in the study of courts and judges, federal courts and federal jurisdiction, legislation and regulation, and environmental law. Follow him on Twitter @JonathanRNash.