The Supreme Court is hitting the ground running with some important cases to start off 2015, and Constitutional Accountability Center is keeping up.  We were busy at the end of last year filing briefs in two significant cases on the Court’s January argument calendar:  Armstrong v. Exceptional Child Center, a case with major implications for Medicaid providers and thus ultimately patients, and Texas Dept. of Housing v. Inclusive Communities Project, a civil rights case concerning fair housing practices. These cases will both be argued the week of January 19th—Armstrong on January 20th and Inclusive Communities Project on January 21st.

Armstrong v. Exceptional Child Center

In Armstrong, the state of Idaho is attempting to prevent Medicaid providers from enforcing the Medicaid Act’s equal access provision, which requires participating states to abide by the federal requirement to ensure that Medicaid “payments are consistent with efficiency, economy and quality of care.”  Idaho set artificially low reimbursement rates for Medicaid providers, and, despite cost studies establishing that these rates were too low, the Idaho legislature refused to increase rates to bring them into compliance with federal law.  Exceptional Child Center, a provider of Medicaid services, brought suit in federal court to have Idaho comply with the Medicaid equal access provision.  Idaho asserts that providers have no right to bring a claim at all.  At bottom, this case has serious nationwide implications both for access to justice and whether or not Medicaid providers will be able to offer patients the quality and range of services to which they are entitled.

Our Constitution’s Framers recognized that access to courts was essential to protect individual liberty, prevent abuse by the government, and maintain the rule of law.  Consistent with the Constitution’s text and history, the judicial branch for more than two centuries has permitted lawsuits, including those brought by private parties, to challenge state laws that violate federal law and requirements.  In Armstrong, Idaho is urging the Supreme Court to depart from the clear commands of the Constitution’s Supremacy Clause and close the courthouse doors to plaintiffs alleging that the state has violated the federal Medicaid Act. 

As CAC’s brief shows, from the very beginning of our Constitution’s history, courts were designed to be the frontline against unlawful acts committed by state governments.   When the Framers wrote our Constitution more than two centuries ago, they were particularly concerned about violations of rights committed by state governments, which had gone unchecked under the dysfunctional federal government of the Articles of Confederation.  As the debates in Philadelphia show, the Framers consciously chose judicial review of state laws as the means of enforcing constitutional limits on such laws and of ensuring the supremacy of federal law. 

A ruling for the state of Idaho that closes the courthouse doors would undermine fundamental constitutional principles of federal supremacy and the role of the courts in the constitutional scheme. Providers would not have any meaningful legal remedy in the face of state violations of the equal access provision of the Medicaid Act, which would ultimately leave patients without access to the care they need.

Texas Department of Housing and Community Affairs v. Inclusive Communities Project

At issue in this case is whether “disparate impact” claims of racial discrimination can be brought under the Fair Housing Act.  A ruling that they cannot would significantly undermine the ability of victims of  racial discrimination in housing to combat it.

For decades, disparate impact liability has been a critical tool in ensuring that the Constitution’s promise of equality extends to all persons regardless of race.  Many laws and policies that are neutral on their face can nonetheless have an outsized and adverse effect on disfavored groups.  Disparate impact claims provide a means to enforce rights in the face of such policies. In 1971, the Supreme Court first recognized the right of plaintiffs to challenge laws that have an unjustified disparate impact on minority groups; in the last 40 years, disparate impact liability has been recognized in such key civil rights laws as Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, and the Voting Rights Act.  The question in the Inclusive Communities Project case is whether the Fair Housing Act of 1968, like other federal civil rights laws, provides for disparate impact liability.

In its appeal to the Supreme Court, Texas argues that the Fair Housing Act does not permit minority residents the opportunity to challenge practices and policies that are neutral on their face, but discriminatory in operation.  Going even further, Texas argues that disparate impact liability is a form of racial discrimination against white residents that raises serious constitutional questions under the Equal Protection Clause.  Espousing a radical view of the Fourteenth Amendment that has never been the law, Texas suggests that the Fair Housing Act would be unconstitutional if it prohibited unintentional as well as intentional forms of racial discrimination.   This argument cannot be squared with the Constitution’s text and history.

As CAC’s brief in Inclusive Community Project shows, the text and history of the Fourteenth Amendment establish what the Supreme Court’s cases have long affirmed: in order to realize the Fourteenth Amendment’s guarantee of equality, Congress has the authority to prohibit laws and practices that result in racial discrimination.  Indeed, contemporaneous with the passage of the Fourteenth Amendment, the Reconstruction-era Congress enacted measures that, like today’s disparate impact provisions, protected against practices—fair in form but discriminatory in result—that would have operated to deny African Americans important rights and benefits.  The very first civil rights laws enacted by the Reconstruction Congress targeted not only explicit racial classifications, but neutrally-worded, generally applicable laws that were used to deny basic civil rights to the newly freed slaves.   The Framers’ overriding concern was to ensure that the Constitution’s promise of equality was actually enjoyed by all persons regardless of race.  Texas’ argument that any consideration of race, even mere consideration of race by the government to ensure that its acts do not lead to racial discrimination, depends on willful blindness to the Constitution and the basic facts of Fourteenth Amendment history.