Last November, the Supreme Court heard a nightmarish case that threatened to destroy a significant portion of the United States’ social safety net. Had the defendants’ arguments in Health and Hospital Corporation v. Talevski prevailed before the justices, federal Medicaid law could have been rendered practically unenforceable — leaving patients with no resource if they were unlawfully denied care or abused by their health providers.
But the Court rejected that approach in a 7–2 decision. It’s also Justice Ketanji Brown Jackson’s first majority opinion in a case with this kind of sweeping policy stakes.
The case involved a somewhat byzantine area of federal law. Medicaid is a “conditional grant” program, meaning that the federal government offers a significant chunk of money to each state (total federal Medicaid spending in 2020 was more than $670 billion), which states are free to take or leave. Should they take the money (and all 50 states take at least some Medicaid funds), however, the states and Medicaid-funded health providers are required to comply with certain requirements laid out in federal law.
These conditions range from broad requirements that state Medicaid programs must cover certain individuals, such as low-income pregnant patients and children, to granular rules governing how Medicaid-funded facilities must operate. The Talevski plaintiffs, for example, accuse a Medicaid-funded nursing home of violating several provisions of Medicaid law that regulate how these facilities must care for patients — including a law that forbids nursing homes from using psychotropic drugs “for purposes of discipline or convenience and not required to treat the resident’s medical symptoms.”
Under well-established law, at least some of the conditions Medicaid law imposes on states and health providers may be enforced through private lawsuits. The defendants in Talevski effectively tried to neutralize all of these lawsuits, leaving patients who are mistreated by Medicaid officials or by Medicaid-funded health providers powerless if their legal rights were violated.
In any event, that won’t happen. The Court voted 7–2 to leave current law in place, in a fairly curt opinion by Jackson that rejects this effort to “reimagine” federal law “and our precedent interpreting it.” Indeed, only one justice, Clarence Thomas, signed onto the Talevski defendant’s most aggressive arguments. Justice Samuel Alito also dissented, but on narrower grounds that might still have allowed some of federal Medicaid law to be enforced by private litigants.
Talevski is also, again, Justice Jackson’s first majority opinion that deals with a major policy question with sweeping stakes for millions of Americans — though she previously authored three majority opinions in relatively minor cases.
Given the lopsided result in the Talevski case, it may seem like Medicaid was never in any real danger. But three of the Court’s current members — Thomas, Alito, and Chief Justice John Roberts — signed onto a 2015 opinion by the late Justice Antonin Scalia, which argued that “the modern jurisprudence permitting [Medicaid] beneficiaries to sue does not generally apply” to conditional grant programs like Medicaid.
In any event, two of those justices appear to have reconsidered, at least in part. And the full Court voted overwhelmingly to reject this attack on Medicaid.
What was at stake in Talevski?
One of the most consequential federal laws ever enacted by Congress is a statute lawyers refer to as “Section 1983.” This law permits state officials — and, in certain circumstances, private individuals implementing state programs — to be sued in federal court if they deprive someone of “any rights, privileges, or immunities secured by the Constitution and laws.”
This statute is the reason why state government officials may be sued if they violate the Constitution. It also permits suits if those officials violate ordinary federal laws, thus ensuring that both the Constitution and federal law remain superior to the whims of such officials.
About a half-century of law establishes that Section 1983 permits Medicaid patients (or, in the Talevski case, their estate) to bring lawsuits enforcing some provisions of federal Medicaid law. As the Court said in Edelman v. Jordan (1974), “suits in federal court under § 1983 are proper to secure compliance with the provisions of the Social Security Act on the part of participating States.” Medicaid was created by a 1965 amendment to the Social Security Act.
Indeed, the argument that Medicaid law may be enforced through § 1983 suits could not be more straightforward. Section 1983 permits lawsuits against certain individuals who violate rights “secured by the Constitution and laws.” And Medicaid laws are laws. As Jackson writes in her opinion reaffirming that the rules governing Medicaid law will remain exactly as they are, “we have consistently refused to read § 1983’s ‘plain language’ to mean anything other than what it says.”
Nevertheless, the Talevski defendants, an Indiana health system operated by local government officials, and a private company that manages nursing homes, essentially claimed to have unearthed a secret history of § 1983 that undercuts its text and the way the Court has previously read this statute.
Much of this argument rests on a single line in the Supreme Court’s opinion in Pennhurst State School and Hospital v. Halderman (1981), which described conditional grant programs as “much in the nature of a contract” because states agree to comply with certain conditions in return for federal money. The Talevski defendants argue that, when § 1983 was enacted during the Reconstruction era, contract law did not allow third parties who were not signatories to the original contract to bring a lawsuit enforcing the contract.
Under this argument, Medicaid patients cannot sue to enforce Medicaid law because the Medicaid program is a contract between the federal government and the states, not between Medicaid providers and their patients.
In any event, the historical support for this argument is very weak. The Talevski defendants cite a hodgepodge of 19th-century legal sources, including an 1881 speech by future Justice Oliver Wendell Holmes, a list of contract cases decided by state courts in the 1800s, and an 1880 book by Harvard Law School dean Christopher Columbus Langdell.
But there is also considerable evidence suggesting that the Talevski defendants’ understanding of 19th-century contract law is simply wrong. Among other things, the Supreme Court said in Hendrick v. Lindsay (1876) that “the right of a party to maintain assumpsit,” an antiquated term for breach of contract lawsuits, “on a promise not under seal, made to another for his benefit, although much controverted, is now the prevailing rule in this country.“
In other words, the Supreme Court said in 1876 — just a few years after § 1983 became law — that, while courts disagree on whether third parties may sue to enforce contracts, most courts had concluded that third parties could file such suits. That one fact alone is devastating to the Talevski defendants’ historical argument. As Jackson writes, “something more than ‘ambiguous historical evidence’ is required before we will ‘flatly overrule a number of major decisions of this Court.’”
Again, nothing about this outcome should surprise anyone. The Talevski defendants’ historical argument was laughably weak, so weak that it is shocking that any judge took it seriously. It contradicts § 1983’s text, longstanding Medicaid precedents, and a 19th-century Supreme Court decision all at once.
If not for Scalia’s quizzical attempt to restrict Medicaid suits, and if not for the fact that several current justices seemed to endorse those efforts in previous opinions, there would have been no reason to take the Talevski case seriously. But Scalia’s old opinion raised the alarming possibility that a majority could be cobbled together on the Court to render Medicaid law virtually unenforceable (had the Talevski defendants’ historical argument prevailed, the federal government still would have had some tools to enforce Medicaid law, but those tools are rarely used — and for good reason).
As it turns out, that did not happen. Justice Jackson’s opinion in Talevski disarms a bomb that has threatened Medicaid for several years now.