The Supreme Court’s recent decision in Armstrong v. Exceptional Child Center, Inc.1 has raised concerns within the healthcare community2 and beyond3 that Armstrong’s limitation on courts’ traditional equitable powers will have an inimical effect on federal statutes like the Medicaid Act4 that have relied heavily upon enforcement through litigation. Armstrong concerned a claim by healthcare providers that a state health department’s low reimbursement rates violated the Medicaid Act and were thus preempted by the Act.5 The Court analyzed whether providers had a private right of action to bring the preemption claim via a variety of avenues: an implied right of action derived from the statute, an equitable right of action through courts’ traditional equitable remedial powers, and a direct constitutional right of action under the Supremacy Clause.6 The latter claim garnered the most attention, as the Supreme Court had not yet decided whether the Supremacy Clause confers such a right of action. Justice Scalia, writing for the Armstrong Court, concluded that it does not.7
But the heart of the Armstrong opinion was its consideration of the power of “federal courts of equity” to enforce federal law8 — in particular, the doctrine also known as Ex parte Young,9 which concerns courts’ “ability to . . . enjoin unconstitutional actions by state and federal officers”10 by means of their traditional equitable powers. The Armstrong Court determined that the plaintiff-respondent, Exceptional Child Center, could not rely on the equitable powers of the court to enforce the Medicaid Act provision at issue.11 The Court applied a two-factor inquiry, noting (1) the existence of a congressionally provided “remedy,” in this case a remedy of withholding Spending Clause funding, and (2) the “judicially unadministrable nature” of the provision at issue.12 Given that both conditions were present, the Court held that equitable judicial enforcement was precluded.13
This holding has raised concerns about the availability of the Ex parte Young doctrine as a means to remedy violations of federal law by state actors. As Justice Sotomayor stressed in her Armstrong dissent, the Ex parte Young doctrine has served as a backstop enabling courts to review state actions that violate federal law “since the early days of the Republic.”14 In Seminole Tribe v. Florida,15 before Armstrong the most recent formulation of the Ex parte Young doctrine, the Court held that the presence of a “detailed remedial scheme” indicated that courts “should hesitate” to exercise their equitable powers.16 By contrast, under the Armstrong test, courts cannot exercise their equitable powers where: (1) there is a “remedy” provided by the Act (which need not be “detailed”); and (2) the provision is “judicially unadministrable.”17 Thus, Armstrong appears to set a significantly higher threshold for enabling judicial enforcement than that set forth in Seminole Tribe (already viewed by many as a deep incursion into courts’ equitable powers under the Ex parte Young doctrine18).
Yet Armstrong was in many ways a peculiar case for an Ex parte Young claim. Because the case concerned a potential violation of a federal law that is largely entrusted to a federal agency for enforcement,19 Justice Breyer pointed out in his concurrence that plaintiffs might instead have brought an Administrative Procedure Act (APA) challenge to the Federal Department of Health and Human Services (HHS) for refusal to enforce the provision.20 This would avoid upsetting a “complex rate-setting area” administered by HHS.21 The Court’s inclination to limit judicial interference with agency-enforced administrative schemes is not unique to this case. Its impact has been felt across a range of doctrines — particularly relevant to Armstrong, the Court has sought to limit the availability of private rights of action that are not derived directly from the text of a statute.22 Could it be, then, that the Armstrong opinion simply set forth two factors to determine whether a private right of action would interfere with an agency scheme, rather than seeking to replace the Seminole Tribe inquiry for all Ex parte Young claims?
Lower courts have diverged in answering this question. Under one reading (the agency-oriented approach), the Armstrong factors are applied exclusively to determine when Congress intended agency-enforced provisions to operate without judicial interference.23 Under a second reading (the comprehensive approach), Armstrong’s consideration of congressional intent to preclude equitable relief does not focus on agency-enforced schemes, but rather provides a general two-factor test that replaces the Seminole Tribe inquiry for all Ex parte Young claims.24 This Note will argue that the former reading, the agency-oriented approach, is the superior reading of Armstrong. Part I lays out the Armstrong factors for identifying congressional intent to preclude equitable relief and traces the two interpretations that have emerged in the lower courts. Part II engages in a close reading of the Armstrong factors, searching for indications that either reading is the “correct” reading. Part III considers the significance of both interpretations, contextualizing each within the relevant case law and scholarship. Part IV argues for the adoption of the agency-oriented approach. Part V concludes.
I. Two Readings of the Armstrong Factors
After determining that the Supremacy Clause did not establish a private right of action, the Armstrong majority turned to plaintiffs’ equitable claims. Looking to Seminole Tribe, as well as several 42 U.S.C. § 1983 and implied private right of action cases,25 the Armstrong Court considered several aspects of section 30(A) of the Medicaid Act, which it found to establish Congress’s “intent to foreclose” equitable relief.26 Specifically, the Court set forth a two-factor test for determining when Congress has chosen to limit courts’ equitable powers.27 The first factor is the presence of a statutory remedy. Stating that an “express provision of one method of enforcing a substantive rule suggests that Congress intended to preclude others,”28 the Court found that the withholding of Medicaid funds by the Secretary of HHS, the “sole remedy” provided by the Spending Clause legislation, fulfilled the first factor.29
While the provision of a statutory remedy “might not, by itself, preclude the availability of equitable relief,”30 the Court viewed it as sufficient when combined with a second factor: judicial unadministrability. Pointing to the “judicially unadministrable nature” of the provision, the Court concluded that its “sheer complexity” and “judgment-laden” nature31 indicated that Congress “wanted to make the agency remedy that it provided exclusive” in order to achieve “the expertise, uniformity, widespread consultation, and resulting administrative guidance that can accompany agency decisionmaking” and avoid “the comparative risk of inconsistent interpretations and misincentives that can arise out of an occasional inappropriate application of the statute in a private action.”32
Two Justices weighed in on the majority’s approach to interpreting congressional intent to preclude equitable relief. Supporting the majority’s hesitance to allow judicial enforcement of a provision with “broad and nonspecific” language, particularly a rate-setting provision,33 Justice Breyer reflected in his concurrence that such enforcement could lead to “increased litigation, inconsistent results, and disorderly administration of highly complex federal programs that demand public consultation, administrative guidance and coherence for their success.”34 Justice Sotomayor’s dissent dwelled instead, among other critiques, on the majority’s failure to apply the Seminole Tribe inquiry, arguing that the Court had not identified “the sort of detailed remedial scheme we have previously deemed necessary to establish congressional intent to preclude resort to equity.”35
The significance of the Armstrong Court’s holding for the Medicaid providers seeking to enforce the Medicaid Act was clear: their claims could not move forward on equitable grounds. Less clear, however, was the precise nature of the test that Armstrong set forth for determining congressional intent to preclude equitable relief. This ambiguity may be discerned in the difference between Justice Breyer’s reading of the majority opinion, with his emphasis on interference with agency rate setting, and Justice Sotomayor’s concern that the majority had applied its own factors rather than engage in the Seminole Tribe inquiry. In line with these diverging emphases, some courts have viewed the Armstrong factors as seeking to answer one specific question — whether Congress meant for a statutory provision to be enforced exclusively by an agency — while other courts have engaged in this Armstrong inquiry where they might previously have applied the Seminole Tribe test, applying the factors in a more comprehensive manner to determine the availability of equitable remedies.
Some lower courts have applied the Armstrong inquiry to determine whether the statutory provision at issue contemplates agency enforcement of an administrative scheme in a manner that would exclude judicial remedies.36 Like Justice Breyer, these courts appear to focus on concerns that equitable remedies will undermine an agency’s ability to properly administer such a scheme. Applying the first factor, courts adopting this approach have sought to identify statutory remedies that fall under the purview of agencies.37 In Coalition for Competitive Electricity v. Zibelman,38 the court noted the unique authority of the Federal Energy Regulatory Commission (FERC) in operating a complex energy regulation scheme,39 holding that Congress “implicitly provided a ‘sole remedy’” in the Federal Power Act by granting “broad enforcement authority” to FERC.40 Similarly, the court in Friends of the East Hampton Airport, Inc. v. Town of East Hampton41 held that Congress had precluded equitable relief in the Airport Airway Improvement Act (AAIA) because “Congress intended to place authority for the enforcement of the AAIA[] . . . exclusively in the hands of the Secretary of Transportation through a comprehensive administrative enforcement scheme.”42 With regard to plaintiffs’ claims under the Airport Noise and Capacity Act (ANCA), however, the court noted the statute’s lack of any provision for administrative enforcement proceedings, and thus held that plaintiffs’ equitable claims could proceed.43
After identifying the presence of an agency remedy, courts adopting the agency-oriented approach have applied the “judicial administrability” factor to determine whether judicial enforcement would interfere with agency expertise and uniformity. Safe Streets Alliance v. Alternative Holistic Healing, LLC44 and Smith v. Hickenlooper,45 two Controlled Substances Act (CSA) preemption cases concerning Colorado’s marijuana legalization law, applied this approach to address plaintiffs’ claims to a private right of action to enforce federal law criminalizing the manufacture, distribution, or possession of marijuana; both found equitable claims to be precluded.46 “The recognition of [the Attorney General’s] sweeping prosecutorial discretion,” the court in Alternative Holistic Healing stated, “addresses directly the second factor identified in Armstrong as suggesting an intent to foreclose equitable relief.”47 The court found this intent in “the ‘judicially unadministrable nature’ of the CSA,”48 given the “risk of inconsistent interpretations and misincentives” that might undermine the DOJ’s “conscious, reasoned decision” to allow some states to legalize marijuana.49 Similarly, the Smith court concluded that, “like the Medicaid Act, the CSA is designed to be implemented through a system of centralized enforcement.”50
For Justice Breyer, the fact that Armstrong concerned a rate-setting provision was central to his conviction that equitable relief was precluded.51 The lower courts adopting the agency-oriented approach in their Armstrong inquiries, none of which have concerned a rate-setting provision, have not acknowledged this distinction, nor have they appeared to find it meaningful. However, perhaps taking a cue from Justice Breyer’s concurrence, cases like Friends of the East Hampton Airport have engaged in a searching inquiry to determine whether judicial enforcement would in fact disrupt the agency scheme, rather than cursorily finding equitable relief precluded where an agency was simply charged with enforcement.52 Thus, as demonstrated in the lower courts, the agency-oriented approach to the Armstrong factors operates exclusively to prevent equitable enforcement in specific contexts in which such enforcement would effectively interfere with agency expertise and uniformity.
Other courts appear to view Armstrong more broadly as establishing a test to replace the Seminole Tribe inquiry,53 lending credence to Justice Sotomayor’s concerns about the significance of the Court’s failure to properly engage in that inquiry. These courts have applied Armstrong regardless of whether an agency is involved; even where the provisions at issue do contemplate agency enforcement, the courts’ interpretation of the two factors has not been oriented toward determining whether judicial involvement would upset an agency-enforced regulatory scheme. Indeed, in Bellsouth Telecommunications, LLC v. Louisville/Jefferson County Metro Government,54 one district court directly considered the question of whether the Armstrong factors replaced the Seminole Tribe inquiry, in the context of a claim that the Pole Attachments Act preempted a local ordinance governing access to utility poles.55 Tracing the development of Ex parte Young through Seminole Tribe and Armstrong,56 the court pondered “whether Armstrong state[d] a new test for equitable jurisdiction cases” without reaching a definitive conclusion;57 no particular concern with the role of federal agencies in enforcing federal law was discussed.
Under the comprehensive approach, the involvement of an agency in enforcement of the statute has not been necessary to trigger the Armstrong inquiry. In Exodus Refugee Immigration, Inc. v. Pence,58 for instance, the court considered whether the Refugee Act of 1980 preempted an Indiana state directive to state agencies not to pay federal grant funds to local refugee resettlement agencies assisting Syrian refugees.59 In applying Armstrong to determine whether the Refugee Act enabled equitable enforcement, the court did not consider the role of an agency in enforcing the provisions at issue; rather, it simply noted under the first Armstrong factor that, unlike section 30(A) of the Medicaid Act, the relevant provision featured no withholding-of-funds remedy.60 Proceeding to the second Armstrong factor, the court determined that the provision was a “straight forward anti-discrimination provision” administrable by a court, before determining that it could move forward in considering an equitable claim for a preliminary injunction.61
Even where an agency is involved in enforcement of the provisions at issue, courts reading Armstrong in this way have approached the two factors of the Armstrong test quite differently than those proceeding under the agency-oriented interpretation: neither factor has been read to focus on the question of interference with an agency-enforced scheme. On appeal in Friends of the East Hampton Airport, for instance, the Second Circuit first reconsidered the district court’s determination that ANCA did not contain a sufficient agency remedy.62 Beyond the ability to withdraw funds, the court emphasized, the Federal Aviation Administration was also authorized “to seek and obtain legal remedies the Secretary considers appropriate.”63 While this statutory text could have been read to highlight precisely the type of agency-led enforcement contemplated in Armstrong, the court instead viewed the availability of multiple remedies as an indication that the Act could also be privately enforced.64 Turning to the second factor, the court rejected assertions from the defense that agency discretion should factor heavily into the administrability inquiry, finding that the straightforward language of the provision could easily be enforced in a private action.65
As compared with courts adopting the agency-oriented approach, then, courts adopting the comprehensive approach have not applied the Armstrong test only where there are potential concerns regarding agency expertise and uniformity, or even where an agency is involved; rather, courts have engaged in the inquiry more broadly to determine the availability of equitable claims. And as demonstrated above, the nature of the judicial administrability factor is particularly transformed from its formulation under the agency-oriented approach, focusing primarily on courts’ capacity to enforce a given provision rather than considering the impact of judicial remedies on the uniformity of an administrative scheme. The case law applying the comprehensive approach appears to contradict somewhat Justice Sotomayor’s concerns about the Armstrong opinion’s harmful effect on the Ex parte Young doctrine, as courts in these cases have generally found that their equitable powers are not precluded. Yet the Armstrong case itself may serve to indicate the decision’s as yet unrealized potential to limit equitable enforcement more broadly than Seminole Tribe — if the Armstrong Court had applied the Seminole Tribe factors instead of its own, it would likely have found that its equitable powers were not precluded.66
II. Sourcing the Armstrong Factors
As the previous Part demonstrates, lower courts have split in their interpretations of the Armstrong factors, indicating that there is some confusion over the proper application of this test. It may be necessary, then, to return to the majority opinion itself, examining the text more closely in order to clarify precisely what was going on in Armstrong. This Part will analyze each of the Armstrong factors for determining congressional intent to preclude equitable relief, tracing the provenance of each factor in an attempt to discern whether courts adopting one interpretation of the opinion have more accurately identified its meaning than those adopting the other interpretation.
Although not directly cited in the Armstrong Court’s discussion of the statutory remedy factor, Ex parte Young jurisprudence already featured such an inquiry. In Seminole Tribe, the Court found that a remedial scheme guiding the formation of a compact between the state of Florida and Indian tribes weighed against allowing an Ex parte Young action to move forward.67 Unlike in Armstrong, the remedial scheme at issue in Seminole Tribe utilized agency enforcement only as a last resort, after both a federal district court and a mediator had failed to resolve Tribal-State Compact negotiations.68 Stating that “a court should hesitate before casting aside those [statutory] limitations and permitting an action against a state officer based upon Ex parte Young,”69 the Court denied an Ex parte Young action on the ground that enabling such an equitable remedy would undermine the provision by enabling courts to skirt the statutory procedures prescribed by Congress.70
In the Armstrong opinion, laying out the statutory remedy factor, the Court stated that “express provision of one method of enforcing a substantive rule suggests that Congress intended to preclude others.”71 This was not original language — the Court derived the statement from Alexander v. Sandoval,72 an important implied right of action case. Statutory implied right of action claims draw an inference of congressional intent to allow private actions from an examination of the statutory text.73 In Sandoval, the Court held that Title VI of the Civil Rights Act of 196474 did not provide an implied private right of action to enforce Department of Justice regulations promulgated pursuant to the Act against the Alabama Department of Public Safety.75 In that case, the Court considered as one factor in its evaluation the methods that the Title VI provision provided for enforcement of the DOJ regulations,76 stating “some remedial schemes foreclose a private cause of action to enforce even those statutes that admittedly create substantive private rights.”77 The Court concluded that a remedial scheme that empowers agencies to enforce the statute by terminating program funding or “by any other means authorized by law,”78 with detailed guidelines as to how such measures shall be taken, indicated that Congress did not intend for private litigation to enforce the provision.79
It may be useful to attempt to parse, then, whether the Armstrong Court’s consideration of the Secretary of HHS’s role in enforcing the Medicaid Act bore closer resemblance to the Court’s considerations in Sandoval than to its analysis in Seminole Tribe. If so, in keeping with the agency-oriented reading of Armstrong, the Court’s willingness to identify congressional intent to preclude equitable relief in the Secretary’s ability to revoke Medicaid funding may serve a limited role in buttressing a certain type of federal legislation, rather than altering the Seminole Tribe requirement of a “detailed remedial scheme.” Certainly, Sandoval reflects different concerns than Seminole Tribe, as it implicates a separation of powers issue concerning the relationship between the judicial and executive branches. Further, Sandoval’s inquiry also raises concerns about uniformity, distinct from the Court’s primary concern in Seminole Tribe that the availability of equitable remedies would render the legislative remedial scheme “superfluous.”80
Unfortunately, the analysis under this factor was extremely cursory. The Armstrong Court simply noted the presence of the remedy and pointed out that such a remedy alone might not be sufficient to indicate congressional intent to preclude equitable relief without the second factor.81 The citation to Sandoval does appear to be telling, as the nature of the provision at issue in Armstrong aligns more closely with the provision considered in Sandoval than the Indian Gaming Regulatory Act provision invoked in Seminole Tribe. Yet the Court did not explicitly state that the presence of an agency remedy is particularly significant to this analysis. Therefore, the possibility remains that the Armstrong Court sought broadly to alter the Seminole Tribe inquiry such that the presence of a “sole remedy” could suffice, rather than requiring a “detailed remedial scheme.”
The second factor that the Armstrong Court considered with regard to congressional intent to foreclose equitable relief was the “judicially unadministrable nature” of the provision,82 a consideration not explored in Seminole Tribe. A judicial administrability inquiry, which considers courts’ institutional competence to adjudicate disputes concerning a given statutory text, is a heavily functional analysis.83 As demonstrated in other contexts,84 it may take into account considerations such as courts’ ability to apply a bright-line rule or metric, the predictability of courts’ interpretations, the extent of need for judicial factfinding, and the cost and likelihood of increased litigation.85 Often, such an inquiry reflects separation of powers concerns — for instance, in political question doctrine cases, the Court has incorporated a similar “judicial manageability” consideration to determine whether constitutional provisions should be enforced by the judiciary or left to the other branches of government.86 However, the Court has not clarified, in engaging in these types of judicial manageability or administrability inquiries, precisely which considerations should be taken into account, or how they should be weighed,87 creating some ambiguity as to which considerations are determinative of the separation of powers assessment.
The Armstrong Court was similarly unclear in its elaboration of the “judicial administrability” factor. The Court’s analysis appears, however, to focus exclusively on the agency’s role, with statements such as “[e]xplicitly conferring enforcement of this judgment-laden standard upon the Secretary alone establishes, we think, that Congress ‘wanted to make the agency remedy that it provided exclusive.’”88 The majority here referenced Justice Breyer’s concurrence in Gonzaga University v. Doe,89 which concerned a claim under the nondisclosure provisions of the Family Educational Rights and Privacy Act of 197490 (FERPA). The Gonzaga plaintiff alleged that although FERPA did not contain a private right of action, the statute could be enforced via a private right of action provided by § 1983.91 Section 1983 claims rely on a federal statute granting a right of action against state officials whose actions violate federal or constitutional law.92 The Gonzaga Court rejected these claims, finding that Congress intended to preclude such relief.93 In his concurrence, Justice Breyer wrote of Congress’s interest in maintaining “the expertise, uniformity, widespread consultation, and resulting administrative guidance that can accompany agency decisionmaking.”94 Several circuits have folded Justice Breyer’s Gonzaga analysis into their § 1983 inquiries, reasoning that interpreting broad and nonspecific statutory language “would involve making policy decisions for which [courts have] little expertise and even less authority.”95
While neither factor explicitly endorses either approach, then, a close reading of the Armstrong factors weighs in favor of the agency-oriented approach. The Court relied heavily on § 1983 and implied right of action cases that focus on the role of agency enforcement in precluding private rights of action. Further, in setting forth its vague “judicial administrability” factor, the Court did not provide any guidance outside of an analysis centered on the impact of judicial enforcement on uniformity of an agency-administered scheme. These characteristics would seem to indicate that the Court intended lower courts to follow this thread. However, although the agency-oriented reading appears to be more plausible, the Court’s focus on the role of the agency does not definitively preclude the comprehensive approach. In the next Part, therefore, this Note will seek to contextualize Armstrong within relevant jurisprudential trends as another means to determine the appropriate interpretation of the Armstrong factors.
III. The Armstrong Readings and Relevant Doctrine
Widening the lens on these two approaches, this Note will next consider how the Court may have sought to expand upon existing jurisprudential trends with its new inquiry. The comprehensive approach aligns with trends in the Ex parte Young doctrine that have sought to limit equitable remedies both generally and within specific contexts; the agency-oriented approach evokes trends across a wide range of doctrines that have focused on congressional delegation of authority to agencies that intentionally excludes excessive judicial interference. A consideration of these trends sheds light on the Court’s intent in Armstrong, indicating the plausibility, as well as the implications, of adopting either reading.
The agency-oriented approach to the Armstrong factors appears most salient when the case is viewed in the context of jurisprudential trends that have sought to prevent judicial interference with agency-enforced administrative schemes, with opinions in which “[t]he Court presents the judiciary as the bull in the legal china shop, that may clumsily interfere with the attainment of legal ends more likely to be secured by other means.”96 Increasingly, as scholars have pointed out, the Court has recognized that judicial enforcement can interfere with agencies’ uniform enforcement of certain complex statutory schemes;97 scholarly work in the fields of health care and disability law has lent credence to this view.98 The vision of a statutory scheme negatively impacted by excessive judicial interference has been particularly pronounced in the Court’s Chevron doctrine,99 but has permeated jurisprudence that touches upon administrative law, ranging from field preemption100 to standing doctrine101 to, most importantly for the purposes of this Note, private rights of action.
In the establishment and navigation of its Chevron doctrine, the Court has elaborated most explicitly on its view that courts should not unduly interfere with agencies empowered by Congress to enforce administrative schemes in the interest of uniformity and expertise. Under the Chevron doctrine, courts presume that Congress intended to delegate to the relevant agency the discretion to interpret ambiguous statutory language.102 In the Chevron opinion, which concerned the Environmental Protection Agency’s interpretation of provisions of the Clean Air Act relating to the establishment of air quality standards, Justice Stevens expressed in the majority opinion that because the agency implemented the relevant provisions “in a technical and complex arena . . . those with great expertise and charged with responsibility for administering the provision would be in a better position to do so.”103 Later Chevron decisions by the Court have noted congressional delegation to agencies of power over “administration and enforcement” of federal laws in determining that agency interpretations are controlling.104
As described in the previous Part, this thread has been picked up in private right of action cases such as Gonzaga and Sandoval, impacting jurisprudence concerning the availability of private rights of action for agency-enforced statutes. By casting an increasingly skeptical eye upon private rights of action not explicitly provided in federal laws enforced by agencies, the Court has expressed a preference for uniform agency enforcement. The appropriate challenge to such enforcement, the Court indicated in Douglas v. Independent Living Center of Southern California, Inc.,105 is an “arbitrary and capricious” claim under the APA.106 Otherwise, as Justice Breyer wrote for the Douglas Court, judicial enforcement could “subject the States to conflicting interpretations of federal law by several different courts (and the agency), thereby threatening to defeat the uniformity that Congress intended by centralizing administration of the federal program in the agency.”107
These concerns were front and center in the Armstrong opinion. The majority cited heavily to this case law, relying particularly on Justice Breyer’s Gonzaga concurrence to determine under its application of the “judicial administrability” factor that Congress’s interest in “achieving ‘the expertise, uniformity, widespread consultation, and resulting administrative guidance that can accompany agency decisionmaking,’ and avoiding ‘the comparative risk of inconsistent interpretations and misincentives that can arise out of an occasional inappropriate application of the statute in a private action’” weighed against allowing equitable enforcement.108 And Justice Breyer’s Armstrong concurrence, likely influential given his outsized role in setting forth this vision in Gonzaga and Douglas, cautioned against the threat of “increased litigation, inconsistent results, and disorderly administration of highly complex federal programs that demand public consultation, administrative guidance and coherence for their success,” a threat posed by equitable enforcement of section 30(A) of the Medicaid Act.109
Thus, the Armstrong factors would align under this reading with an attempt by the Court on multiple fronts to cabin administrative law, establishing a regime in which agencies are empowered to determine the best course of action in enforcing certain types of statutory law. As Chief Justice Roberts pointed out in his Douglas dissent, limits to implied right of action and § 1983 jurisprudence “would serve no purpose if a plaintiff could overcome the absence of a statutory right of action simply by invoking a right of action under the Supremacy Clause to the exact same effect.”110 Similarly, then, the Armstrong factors would serve to ensure that equitable remedies also reflect these trends in the Court’s § 1983 and implied right of action jurisprudence and beyond. Addressing the final method by which plaintiffs might effectively interfere with an agency-enforced statutory scheme, the Armstrong Court would have completed its jurisprudential caulking of such schemes to ensure that courts could no longer interfere by enforcing private rights of action which Congress had not intended.
As a final note concerning this approach, it is crucial to avoid conflating the interpretive deference of Chevron with the judicial enforcement question addressed in Armstrong. With its Chevron doctrine, the Court has enabled agency interpretation to largely preclude courts’ traditional statutory interpretation powers where a regulatory provision is broad enough that multiple reasonable interpretations are possible.111 Yet, as Justice Sotomayor’s Armstrong dissent highlighted, the availability of equitable remedies need not interfere with agency interpretation. First, citing Chevron and Skidmore v. Swift & Co.,112 Justice Sotomayor stated that where a court sought to enforce vague statutory language by means of its equitable powers, “appropriate deference” would be granted to a federal or state agency determination.113 Second, Justice Sotomayor pointed out, where a question “presents a special demand for agency expertise,” a court can rely on the doctrine of primary jurisdiction to obtain the agency’s views on the matter.114 Because courts can “defer to the federal agency when necessary,” Justice Sotomayor concluded, it is not necessary to preclude judicial enforcement on the grounds that a provision’s language is broad and nonspecific.115 Even under the agency-oriented interpretation, then, the question of whether judicial enforcement can coexist with agency enforcement of a statutory provision is separate from the question of interpretive ability.
As compared with the agency-oriented approach, the comprehensive approach does not appear to evince a particular concern with judicial interference with agency-enforced statutory schemes. Rather, this reading of the Armstrong factors is grounded more thoroughly in the Ex parte Young doctrine, which has focused on federalism concerns about federal courts’ interference with state action. As scholars have recognized, if the Armstrong factors extend to all Ex parte Young claims, replacing the Seminole Tribe inquiry with a broad two-factor inquiry concerning the presence of a statutory remedy and judicial administrability, this reading limits more comprehensively the parameters of the Ex parte Young doctrine.116 This reading of Armstrong impacts jurisprudence concerning Ex parte Young enforcement of federal statutes (as opposed to constitutional law),117 Ex parte Young enforcement of affirmative injunctions (as opposed to so-called antisuit injunctions),118 and, most explicitly, presumptions regarding congressional intent and the availability of equitable relief.119
First, Armstrong appears to mark a shift from presuming congressional acceptance of background equitable remedies to presuming congressional preclusion of such remedies. As Justice Sotomayor argued in her dissent, given the “long history”120 of equitable actions, Congress “should generally be presumed to contemplate such enforcement unless it affirmatively manifests a contrary intent.”121 Were the Court to take this view, the Armstrong factors would likely require a clearer indication of Congress’s intent to preclude equitable relief than the vague exhortation that the provision must not be “judicially unadministrable,” a standard that relies almost entirely on judicial discretion. Instead, the Court was skeptical of the dissent’s assertion that the legislative history indicated an awareness of the background equitable remedies, stating that an intent to allow such remedies would not have engendered “legislative silence but rather express specification of the availability of private enforcement (if that was what Congress intended).”122 Thus, in applying the Armstrong test for preclusion of equitable remedies, a court would be compelled to adopt a lens that requires little of Congress in order to identify a congressional intent to preclude equitable relief, or in fact may require evidence of congressional intent to allow such relief.
Second, Armstrong can be characterized as evincing skepticism toward any equitable remedies that require action from a government official. Revisiting Ex parte Young in a 2008 article, Professor John Harrison asserted that the case is incorrectly relied upon to support affirmative equitable injunctions — rather, Harrison argued, it represents merely the availability of antisuit injunctions, a long-established equitable remedy.123 Building upon this argument, a recent law review case comment suggests that Armstrong’s less permissive view of equitable remedies is a reaction to the affirmative nature of the injunction sought by plaintiffs.124 By not explicitly revising the Ex parte Young doctrine, the comment posits, the Armstrong majority perhaps called for a divergent approach to negative injunctions (injunctions to prevent action) sought by Ex parte Young plaintiffs and affirmative injunctions (injunctions to induce action) sought by Armstrong plaintiffs.125 Despite the Court’s lack of acknowledgement of such an attempt to distinguish Armstrong from Ex parte Young, a concern with affirmative injunctions could be discerned from the Court’s impenetrable “judicial administrability” factor. While a negative injunction claim requires a fairly straightforward remedy, more questions arise when a court’s equitable injunction requires an official to act. Therefore, the Armstrong Court’s concerns about how a court would administer a provision like section 30(A) may indeed reflect a desire for a more cautious approach to equitable remedies — cabining Ex parte Young antisuit injunctions as a distinct arena for the more liberal application of equitable powers.
Third, Armstrong can be read to limit more broadly the utilization of Ex parte Young equitable powers in the context of state violations of federal statutory law (not limited to laws enforced by an agency remedial scheme). There has been some debate as to whether Ex parte Young should apply in such a context.126 Shaw v. Delta Airlines127 and other decisions have indicated that it does;128 yet the Armstrong Court’s treatment of section 30(A) may indicate that courts applying their equitable powers in enforcing federal statutory law should adopt a more restrained approach than in enforcing constitutional law. As Professor Henry Paul Monaghan (discussing Armstrong) points out, “[t]he remedial consequences of violations of federal statutes can be seen to present issues different from violations of the Constitution, and Congress, it could be argued, should have a major role in shaping affirmative remedies for federal statutory violations.”129 In particular, the carefully delineated doctrines for determining congressional intent to enable private enforcement of federal statutes would seem to indicate that the Court does desire a more restrained approach to the use of equitable powers for such laws.130 This would appear to be the case even when, as in Armstrong, plaintiffs allege federal preemption of state law and their claims are thus “basically constitutional in nature.”131 Therefore, by rejecting this characterization and setting a low bar for identifying congressional intent to preclude equitable relief, the Court under this reading limits federal statutory Ex parte Young equitable claims that would not apply to constitutional Ex parte Young equitable claims.
Under the comprehensive approach to the Armstrong factors, then, the primary concerns relate to the separation of powers between Congress and the courts, shifting power away from courts by limiting their ability to utilize equitable powers in enforcing federal statutes,132 and the federalism balance between the federal and state governments, limiting state liability for violations of federal statutes and affirmative injunctions that compel action by state officials. Uniformity and expertise — so central to an interpretation of Armstrong that reads the decision to intervene only when an agency is intended solely to handle enforcement — appear to be only tangential concerns in this context.
IV. An Argument for the Agency-Oriented Approach
As Parts II and III have demonstrated, Armstrong presents enough ambiguity in its language to support both the agency-oriented and the comprehensive approaches, and both have the potential to operate within (and expand upon) a larger jurisprudential framework. The comprehensive approach to the Armstrong factors is certainly plausible; indeed, as this Note highlights, lower courts and scholars have adopted this reading of Armstrong. Yet an in-depth analysis of Armstrong appears to indicate that the agency-oriented approach aligns more closely with the Court’s intent, yields a more “administrable” test, and cabins the Armstrong test to a more limited scope of cases. Thus, as this Part will argue, the agency-oriented approach is likely the superior reading.
Several considerations indicate the Court’s intent to adopt the agency-oriented approach. First, as discussed in Part II, the Court chose in elaborating the Armstrong factors to cite its Sandoval and Gonzaga opinions, while neglecting to directly address the relationship between its two-factor inquiry and the “detailed remedial scheme” inquiry of Seminole Tribe. In particular, the Court chose to cite heavily from Justice Breyer’s Gonzaga concurrence, which focused directly on the concerns underlying the agency-oriented approach. Next, Justice Breyer’s critical vote in a 5–4 decision should not be understated. It is significant, then, that his concurrence portrayed the Armstrong inquiry as expressly oriented toward concerns of agency expertise and uniformity (and that his focus on rate-setting would apparently seek to limit the opinion’s impact even further). Finally, Armstrong was directly preceded by Douglas, in which the Court had instructed plaintiffs to bring an APA claim against the Secretary of HHS.133 When similar plaintiffs returned seeking another means to enforce the Medicaid provision that did not incorporate HHS, it is understandable that the Court would seek to bring equitable remedies in line with its other jurisprudence concerning agency enforcement. For these reasons, an inclination toward the agency-oriented approach can likely be discerned from the Armstrong Court.
The agency-oriented approach also triumphs under a functional consideration of Armstrong. As this Note has demonstrated in Parts I and II, because the Court did not provide sufficient guidance in setting forth its inquiry, its vague language concerning a “sole remedy” and “judicial administrability” can render the inquiry difficult to implement. Under the agency-oriented approach, however, the inquiry is less challenging because it is tethered to one underlying question: whether judicial enforcement will interfere with an agency scheme. The comprehensive approach does not possess such an anchor, and courts attempting to engage in the inquiry have therefore interpreted the two factors in significantly different ways. Courts’ inquiries concerning the “judicial administrability” factor have tended to focus on their competency to interpret and enforce statutory language, rather than the issue of interference.134 There are two possible downsides to this approach to the “judicial administrability” factor: the inquiry may be toothless, resulting in harmful interference with an agency scheme or, conversely, it may be invoked to abdicate judicial responsibility for adjudicating Ex parte Young claims. Where, under the agency-oriented approach, the Armstrong factors appear to offer more guidance and a limited scope, then, such a reading is preferable.
Finally, from a normative perspective, the agency-oriented approach (particularly when cautiously applied) represents a potentially more limited incursion on courts’ equitable powers under the Ex parte Young doctrine. As Justice Sotomayor interpreted the majority opinion, because the Court neglected to engage in the Seminole Tribe inquiry and instead asserted its own two factors, the opinion “threatens the vitality of our Ex parte Young jurisprudence.”135 The potential impacts of the comprehensive approach traced in section III.B reflect these concerns — that an altered Ex parte Young doctrine will broadly impact equitable claims invoking federal law or seeking affirmative injunctions, or will even require Congress to state an intent to allow equitable relief when it legislates. While concerns about courts’ enervated equitable powers also persist under the agency-oriented approach, those concerns are limited to specific contexts in which an agency-enforced scheme will be threatened by judicial interference.
V. Conclusion
This Note has attempted to trace the two readings adopted by courts in applying the Armstrong factors for determining Congress’s intent to foreclose equitable remedies — one that addresses a particular concern about court enforcement of legislation that is better left to agencies, and one that operates more generally to limit the availability of equitable relief for private actors. This Note has argued, based on the above analysis of the Armstrong opinion and its place in the Court’s related jurisprudence, for an agency-oriented reading of these factors. Under this interpretation, the Armstrong test applies only to determine whether equitable enforcement interferes with an agency-enforced administrative scheme. As this Note has described, then, the Armstrong factors align with the wide range of Chevron-type doctrines that seek to limit courts’ interference with statutory schemes enforced by agencies, as opposed to trends seeking to broadly limit the availability of Ex parte Young claims.
If the agency-oriented approach to the Armstrong factors prevails in the courts, then plaintiffs whose Ex parte Young claims do not implicate agency schemes can expect a Seminole Tribe inquiry, rather than an Armstrong inquiry. Where agency schemes are implicated, courts should engage in a searching Armstrong inquiry that considers whether judicial enforcement truly interferes with agency enforcement. If the comprehensive approach prevails, then plaintiffs may encounter a less amenable environment for Ex parte Young claims of all kinds, and claims that might have survived Seminole Tribe may fail under Armstrong. In either case, Armstrong will serve to limit the availability of Ex parte Young remedies. The limitation imposed under the agency-oriented approach, at least, reflects more than simply a hostility to such equitable enforcement, but rather a component of an earnest (and hopefully restrained) navigation of the proper balance between courts’ and agencies’ efforts to enforce the law.