Topic: An Individuals Right to Sue
Date: SEPTEMBER 15, 2005
LEAHY: You have been involved a great deal in the development of the Supreme Court authority limiting the ability of individual Americans to ensure they actually receive the rights and protections that Congress has mandated under spending clauses.
In the Reagan administration, you advocated legislative responses to Maine v. Thiboutot. That's how the Supreme Court tell us it's pronounced. It's not how those of us who live -- the way those of French Canadian descent might say it.
That was a case that recognized broad access to courts to vindicate your rights under federal law. You criticize the damage supposedly caused by that case in a 1982 memo.
And then you wrote briefs and argued before the Supreme Court in the '80s and '90s. We've talked about some of these, South Dakota v. Dole, Wilder v. Virginia Hospital, Sutter v. Artisam, Gonzaga University v. Doe, and you call for the narrowing of Congress spending powers, eliminating the right of individuals to sue to compel the protections Congress required under federal law.
I worry about this if an individual loses their right to sue, if the state or the administration or whoever the administration might be doesn't protect their rights. For example, if the only remedy for a state's refusal to live up to its obligations under a spending power enactment, like Medicaid or another such program, is action by the federal government and the federal government doesn't act, where does that leave the rule of law? Where does that leave America's sense of justice if an individual can't -- doesn't step in and seek action?
ROBERTS: Well, two points, Senator.
ROBERTS: The issue in the spending clause cases that you referred to -- Wilder, the later one, Sutter case, and the Gonzaga case that I argued when I was in private practice -- the issue is one of congressional intent.
The question is: Did Congress intend there to be a private right of action? That's what the courts are trying to figure out.
And if Congress did intend there to be private right of action, if Congress intended this to be actionable, whether through Section 1983 or under the law itself, then there would be a private right of action.
In some cases, Congress doesn't intend that. And in those cases there wouldn't be.
I would say that...
LEAHY: Go ahead.
ROBERTS: I was just going to make the point that in those cases, of course, I was advocating the position for a client.
I did have occasion as a judge to address a spending clause case. It was a case called Barbour v. Washington Metropolitan Area....
LEAHY: But that one the statute was pretty darn clear.
ROBERTS: Well, it was a 2-1 decision; divided decision on a court that doesn't often issue 2-1 decisions. There was a lengthy dissent saying that Congress did not have the authority to require...
LEAHY: Judge Sentelle dissented?
ROBERTS: Judge Sentelle dissented.
LEAHY: I read that. I don't want to go into that; he's not here before us.
But what I worry about, though, is the trend of these (inaudible) that may say that Congress intended these programs, more like Medicaid, a commitment there to be, kind of, an exclusive bargain between the federal government and the state government.
And that raises a question in my mind. I mean, do the courts really think we've made empty promises?
I thought of this the other night. Because I remember what you said about the empty promises of the Soviet constitution.
LEAHY: But wouldn't it be an indication we were making the same kind of empty promises if individuals can't sue if they're left as innocent bystanders who are harmed, but they have no remedy, if the state is negligent in acting or if the federal government doesn't protect it?
I mean, why shouldn't they be able to sue to get the promises that are made in these bills so it's not like the Soviet constitution: great promises, but empty?
ROBERTS: Well, the issue is not whether they should be able to sue or not. The issue is whether Congress intended them to be able to sue or not.
The issue doesn't even come up if Congress would simply spell out in the legislation, "We intend these individuals to have the right to sue in federal court." That would prevent the issue from even coming up.
All of those cases we've been talking about arose because Congress did not address the question and, therefore, the courts...
LEAHY: Congress assumes the states and the federal government are going to do what the law spells out. We don't do it as an empty promise; we assume they're going to do it.
When they don't do it, if you're developmentally disabled, Medicaid kids, foster kids, rape victims and so on, shouldn't they be able to have a voice?
ROBERTS: Well, if Congress wants them to sue, all Congress has to do is write one sentence saying "individuals harmed by a violation of this statute may bring a right of action in federal court." There are laws where Congress says that and that question never comes up.
The issue in the various cases that we've been talking about, including in the Barbour case, where I ruled that the individual did have the right to sue -- when I was a judge -- the issue is what did Congress intend? And all too often that issue is not even addressed.
I don't know whether it's because of inadvertence or it's because of inability of Congress to agree and both sides, sort of, say, "Well, let's let the courts figure it out."
LEAHY: May be the assumption of those of us who take an oath of office here to uphold the laws that the state government, those officials who take similar oaths of office, or the administrators and the national government takes similar oaths of office are actually going to do what they've sworn to do.
LEAHY: Can I move on? Because it also goes to -- and I understand your point on this. And we can probably debate this all morning long. But I hope you understand my concern, which is a concern of a lot of the American people in this area.