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Wednesday, September 24, 2003
Predictions for Tuesday, Oct. 7


No. 02-628 Frew v. Hawkins


The first case to be argued this term has to do with the Medicaid Act. Petitioners sued various state officials in their official capacities, alleging that children were not being provided their rights under a particular Medicaid program. This case is similar to Westside Mothers v. Haveman, 289 F.3d 852 (2002), which was the subject of the paper I wrote for my federalism seminar several years ago. The paper argued that the district court in Westside Mothers incorrectly held that the Supremacy Clause does not apply to states’ obligations under programs enacted pursuant to Congress’s spending power. The Sixth Circuit vindicated my position, and the Supreme Court denied certiorari.


But that’s neither here nor there. In this case, the officials entered into a consent decree with the plaintiffs, which was enforceable by the court. The plaintiffs later filed suit to enforce certain provisions of the decree. The district court found that it had jurisdiction, that the suit was not barred by the Eleventh Amendment, and ordered the officials to submit proposals for remedying their violations of the consent decree. The officials appealed, and the Fifth Circuit reversed. The court found that the officials had not waived Eleventh Amendment immunity by its conduct in litigation, and that certain rights under the consent decree were not federal rights enforceable under 42 U.S.C &sec; 1983.


It seems unlikely that a state may urge a court to adopt a consent decree (emphasis on the word “consent”), and later claim that it has not waived immunity from suit. I predict the Court will REVERSE.


No. 220129 Virginia v. Maryland


In the interests of full disclosure, I should admit that I am a Virginian. Although I am currently in Florida, I have lived in Virginia for most of my life. I am a member of the Virginia Bar. Further, I have lived in Northern Virginia, which, on the one hand, lowers my Virginia cred with many Virginians. On the other hand, Northern Virginians, more so than our southerly brothers and sisters, have an inherent dislike for Maryland. That is, I have nothing against Marylanders in particular. My girlfriend, for instance, claims Annapolis as her home. It’s more that there is something about living in Virginia that causes a certain ire against Maryland in general. This is particularly true of the Maryland suburbs of Washington, D.C. I have much less problem with Annapolis, Baltimore, or the eastern shore of Maryland than I do with Chevy Chase, Bethesda, and Silver Spring. It’s also true that Marylanders have the same dislike of Virginia. In fact, I tend to lose a little respect for a Marylander who fails to join the Maryland side of the Maryland-Virginia schism. And a Virginian that moves to Maryland? Unforgivable. What causes this conflict? Maybe it’s something in the water.


It is from this perspective that I approach the current dispute between the Old Dominion and Maryland. The states have been arguing about their border along the Potomac River since before the Revolution. They eventually agreed that both states can fish and build improvements on their respective sides of the river, and a hundred years late, that Maryland generally owns the land under the river up to the low water mark on the Virginia side of the river. In this dispute, Virginia wanted to build a water intake structure, and, just to be nice, sought permits from Maryland to do so. Maryland dragged its feet, so Virginia decided it didn’t need any stinking permits and sued in the Supreme Court. The case went before a Special Master, whose report recommended that the Court grant Virginia the relief it requested.


It seems to me that the Special Master is correct. Neither party disputes that what Virginia wants to do is within the rights that both states agreed that each state had back in the 1700s. The only question is whether Virginia has to ask Maryland for permission (and whether, having asked permission before, Virginia must continue to ask permission). Having stated the question, the answer seems obvious: “No.” I predict the Court will either enter an order granting Virginia’s requested relief or somehow say something to the effect of “why did you even ask this question?” That is, I wonder why Virginia brought this to the Supreme Court in the first place. Why didn’t it just build whatever the heck it felt like building and leave it to Maryland to attempt to enjoin the activity? The long-standing rivalry notwithstanding, I doubt that Maryland would have attempted to physically stop the construction, or sent “past due” tax notices to Virginia, or booted Virginia’s car. In any case, I predict Virginia will win.