                                                                    FILED
                                                         United States Court of Appeals
                                                                 Tenth Circuit

                                                               March 25, 2014
                                     PUBLISH                 Elisabeth A. Shumaker
                                                                 Clerk of Court
                  UNITED STATES COURT OF APPEALS

                               TENTH CIRCUIT



 PLANNED PARENTHOOD OF
 KANSAS AND MID-MISSOURI,

             Plaintiff - Appellee,
 v.                                         Nos. 11-3235, 12-3178 & 13-3175
 ROBERT MOSER, M.D., Secretary,
 Kansas Department of Health and
 Environment,

           Defendant - Appellant.
 _________________

 EAGLE FORUM EDUCATION &
 LEGAL DEFENSE FUND,

             Amicus Curiae.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF KANSAS
                (D.C. NO. 2:11-CV-02357-JTM-DJW)


James M. Armstrong, Foulston Siefkin LLP, Wichita, Kansas, for Defendant -
Appellant.

Elissa Joy Preheim, Arnold & Porter LLP, Washington, D.C. (Lee Thompson and
Erin C. Thompson, Thompson Law Firm, LLC, Wichita, Kansas; Roger K. Evans
and Helene T. Krasnoff, Planned Parenthood Federation of America, New York,
New York and Washington, D.C., with her on the briefs), for Plaintiff - Appellee.

Lawrence J. Joseph, Washington, D.C., for Amicus Curiae.
Before LUCERO, HARTZ, and O’BRIEN, Circuit Judges.


HARTZ, Circuit Judge.


      The federal government subsidizes the cost of family-planning services for

low-income individuals through Title X of the Public Health Service Act. It often

grants Title X funding directly to a state, which in turn makes subgrants to

family-planning service providers. Kansas is one such state.

      In May 2011 Kansas Governor Sam Brownback signed into law an

appropriations bill restricting the classes of entities eligible for Title X subgrants.

It limits the recipients to public entities, hospitals, and federally qualified health

centers that provide comprehensive primary and preventative healthcare services.

This restriction disqualified two family-planning clinics operated by Planned

Parenthood of Kansas and Mid-Missouri (Planned Parenthood). Planned

Parenthood sued Governor Brownback and Robert Moser, M.D., in his capacity as

the Secretary of the Kansas Department of Health and Environment (KDHE),

challenging the legislation on the grounds (1) that it violates Title X and is

therefore unconstitutional under the Supremacy Clause; (2) that it violates

Planned Parenthood’s First Amendment rights by penalizing it for associating

with providers of abortion and for its advocacy of access to abortion services; and

(3) that it violates the Fourteenth Amendment by imposing an unconstitutional

burden on the rights of women to choose abortion (a claim not raised on appeal).

                                          -2-
Ruling that Planned Parenthood had established a likelihood of success on the

merits of the first two claims and had otherwise satisfied the requirements for a

preliminary injunction, the district court enjoined KDHE from implementing the

legislation.

      Moser challenges the injunction on several grounds, most of which we need

not address. As to the Supremacy Clause claim, we hold that Planned Parenthood

cannot establish a likelihood of success on the merits because there is no private

cause of action for injunctive relief for the alleged violation of Title X. Although

Planned Parenthood and the dissent assert that the view we adopt is contrary to

circuit precedent in Chamber of Commerce of U.S. v. Edmondson, 594 F.3d 742,

764 (10th Cir. 2010), and Qwest Corp. v. City of Santa Fe, 380 F.3d 1258 (10th

Cir. 2004), this opinion does not call into question the validity of the injunctions

affirmed by those two decisions. Our holding is much narrower than what the

dissent suggests. We hold only that when actual or threatened state action is

allegedly contrary to a federal statute, the Supremacy Clause does not necessarily

(it is a matter of statutory interpretation that depends on the specifics of the

federal statute) authorize an injunction against the state action when four

conditions are all satisfied: (1) the statute does not specifically authorize

injunctive relief, (2) the statute does not create an individual right (which may be

enforceable under 42 U.S.C. § 1983), (3) the statute is enacted under the

Constitution’s Spending Clause, and (4) the state action is not an enforcement

                                          -3-
action in adversary legal proceedings to impose sanctions on conduct prohibited

by law.

      As to the First Amendment claim, we hold that Planned Parenthood cannot

establish a likelihood of success because the legislation does not restrict the rights

of speech or association of subgrantees and the motives of individual lawmakers

are irrelevant.

      After summarizing the relevant background of this case, we will set forth

the reasoning behind our two holdings, distinguishing the cases relied on by

Planned Parenthood and the dissent. We then vacate the preliminary injunction,

reverse, and remand for further proceedings.

I.    BACKGROUND

      A.     Overview of Title X

      In 1970 Congress passed the Family Planning Services and Population

Research Act (Act). See Pub. L. No. 91-572, 84 Stat. 1504 (1970). The Act’s

stated purposes include “assist[ing] in making comprehensive voluntary family

planning services readily available to all persons desiring such services.” Id. § 2,

84 Stat. at 1504. It established the Office of Population Affairs (OPA), the

responsibilities of which include “administer[ing] all Federal laws . . . which

provide for or authorize the making of grants or contracts related to . . . family

planning programs.” Id. §§ 3–4, 84 Stat. at 1504–05; 42 U.S.C. § 3505b(1). OPA




                                          -4-
resides within the Department of Health and Human Services (HHS). See

42 U.S.C. § 3505a(a).

      Of particular relevance to this appeal, the Act amended the Public Health

Service Act, Pub. L. No. 410, 58 Stat. 682 (1944), to add a new title: “Title

X—Population Research and Voluntary Family Planning Programs” (Title X).

Pub. L. No. 91-572, § 6, 84 Stat. 1504, 1506–08 (codified at 42 U.S.C.

§§ 300–300a-6). Title X facilitates the provision of family-planning services by

federally subsidizing such services. It authorizes the Secretary of HHS:

      to make grants to and enter into contracts with public or nonprofit
      private entities to assist in the establishment and operation of
      voluntary family planning projects which shall offer a broad range of
      acceptable and effective family planning methods and services
      (including natural family planning methods, infertility services, and
      services for adolescents).

42 U.S.C. § 300(a). Title X is relatively sparse, consisting of just a few short

provisions. It mostly confers executive authority. It authorizes the HHS

Secretary to make grants for various purposes related to family planning. See id.

§ 300(a) (family-planning project grants); id. § 300a(a) (formula grants to state

health authorities); id. §300a-1(a) (training grants); id. § 300a-2 (research grants);

id. § 300a-3 (grants for educational materials). And it gives the Secretary

authority to determine the amounts of grants, see id. § 300a-4(a), the conditions

to which grants are subject, see id. § 300a-4(b), and whether projects satisfy the

statutory eligibility requirements, see id. § 300a-4(c).


                                         -5-
      Under Title X, “[l]ocal and regional entities shall be assured the right to

apply for direct grants and contracts . . . , and the Secretary shall by regulation

fully provide for and protect such right.” Id. § 300(b); see also id. § 300a-4(a)

(authority to promulgate regulations governing grants). The regulations thus

provide that “[a]ny public or nonprofit private entity in a State may apply for a

grant under this subpart.” 42 C.F.R. § 59.3. The regulations detail the

application process and the requirements of a Title X project. See id. §§ 59.4,

59.5. HHS provides successful applicants with a “notice of grant award,” which

informs the grantee how long HHS intends to fund the project before requiring the

grantee to recompete for funding. Id. § 59.8. Although this period typically lasts

three to five years, the initial grant is usually for only one year; the grantee must

submit subsequent applications for “continuation awards” each year, subject to

“consideration of such factors as the grantee’s progress and management

practices, and the availability of funds.” Id.

      Direct Title X grantees need not provide family-planning services

themselves but may contract to have the services provided “by delegate/contract

agencies operating under the umbrella of the grantee” (delegate agencies). U.S.

Dep’t of Health & Human Servs., Office of Pub. Health & Sci., Office of

Population Affairs, Program Guidelines for Project Grants for Family Planning

Services § 6.1 (2001) (Program Guidelines). But the direct grantee remains

“responsible for the quality, cost, accessibility, acceptability, reporting, and

                                          -6-
performance of the grant-funded activities provided by delegate/contract

agencies.” Id.; see also Marilyn J. Keefe, Deputy Assistant Sec’y for Population

Affairs, Dep’t of Health & Human Servs., Memorandum on Title X Grantee

Compliance with Grant Requirements and Applicable Law 2 (March 1, 2011)

(“Title X grantees are responsible for conducting periodic reviews of sub-

recipient agencies, and must undertake immediate steps to address issues related

to lack of compliance with established policies and procedures.”). Although Title

X also authorizes direct federal grants to service providers, see Program

Guidelines § 6.1, “[m]ost Title X funds flow initially to state and local

governmental agencies and non-profit organizations[, which] function as

intermediaries that in turn distribute the funds to subgrantees who actually

administer the programs.” Nat’l Family Planning & Reproductive Health Ass’n,

Inc. v. Gonzales, 468 F.3d 826, 828 (D.C. Cir. 2006).

      The Title X regulations cross-reference “HHS Department-wide

regulations,” which apply to Title X grants. 42 C.F.R. § 59.10. The referenced

regulations include 42 C.F.R. pt. 50 and 45 C.F.R. pts. 16, 74, and 92, which

create an administrative scheme for HHS grants and cooperative state-federal

funding agreements. The scheme, promulgated primarily under the general grant

of authority to heads of executive agencies, see 5 U.S.C. § 301, provides for

centralized executive enforcement of Title X. It states, “If a grantee or

subgrantee materially fails to comply with any term of an award, whether stated

                                         -7-
in a Federal statute or regulation, an assurance, in a State plan or application, a

notice of award, or elsewhere, the awarding agency may” temporarily withhold

payments, disallow funding to cover the cost of the noncomplying activities,

terminate the award, withhold further awards, or pursue other legally available

remedies. 45 C.F.R. § 92.43(a). A grantee subjected to an adverse determination

may request an informal review of the decision before the agency. See 42 C.F.R.

§§ 50.404(a) (defining adverse determination), 50.405 (authorizing review

committees to review adverse determinations), 50.406 (setting forth steps in

administrative review process). A grantee may appeal an adverse final decision

to the Departmental Appeals Board. See 45 C.F.R. §§ 16.3 (requirements for

appeal to be heard by the board), 16.7–.8 (steps in initiating appeals process).

And a grantee may seek judicial review under the Administrative Procedure Act

(APA) of a final agency decision. See 5 U.S.C. § 704; see also 45 C.F.R.

§ 74.90(c)–(d) (requirements for final decisions in HHS disputes).

      In Kansas, HHS grants Title X funds to the State, which distributes the

funds to delegate agencies. The State applies directly to HHS for Title X funds

through KDHE, which is the sole direct grantee in Kansas. Most recently, KDHE

submitted a competitive grant application on February 22, 2010, requesting funds

for the five-year period from June 30, 2010, through June 29, 2015. KDHE

applied for a continuation grant on March 21, 2011, and the notice of grant award

was issued on June 27, 2011. KDHE provides no family-planning services itself,

                                          -8-
but instead contracts with delegate agencies.

      Before the events giving rise to this litigation, those delegate agencies

included Planned Parenthood. Planned Parenthood had received Title X funds

under contract with KDHE for over 25 years. Because KDHE included Planned

Parenthood in its application for the 2010–15 grant, Planned Parenthood did not

apply to HHS for a direct grant. Although Planned Parenthood does not provide

abortion services at the Wichita and Hays clinics, which have been subgrantees, it

provides the services in two clinics in Missouri and is affiliated with

Comprehensive Health of Planned Parenthood of Kansas and Mid-Missouri,

which provides them in Overland Park, Kansas.

      B.     Section 107(l)

      On May 28, 2011, Governor Brownback signed into law Senate Substitute

for House Bill 2014, an appropriations bill containing the provision at issue.

Section 107(l) of the law provides:

      During the fiscal year ending June 30, 2012, subject to any
      applicable requirements of federal statutes, rules, regulations or
      guidelines, any expenditures or grants of money by the department of
      health and environment—division of health for family planning
      services financed in whole or in part from federal title X moneys
      shall be made subject to the following two priorities: First priority to
      public entities (state, county, local health departments and health
      clinics) and, if any moneys remain, then, Second priority to
      non-public entities which are hospitals or federally qualified health
      centers that provide comprehensive primary and preventative care in
      addition to family planning services: Provided, That, as used in this
      subsection “hospitals” shall have the same meaning as defined in
      K.S.A. 65-425, and amendments thereto, and “federally qualified

                                         -9-
      health center” shall have the same meaning as defined in K.S.A.
      65-1669, and amendments thereto.

Aplt. App., Vol. I at 31 (30 Kan. Reg. 793 (June 9, 2011)). 1 Thus, only (1) public

entities and (2) nonpublic hospitals and federally qualified health centers

(FQHCs) may become delegate agencies of KDHE, with public entities receiving

priority. Kansas law adopts the definition of FQHC set forth in 42 U.S.C.

§ 1396d(l). See Kan. Stat. Ann. § 65-1669(e) (2008). Section 1396d(l), in turn,

provides that an FQHC is an entity that is receiving or satisfies the requirements

to receive a grant under 42 U.S.C. § 254b. See 42 U.S.C. § 1396d(l)(2)(B). And

to be eligible for a grant under § 254b, an entity must provide a range of primary

health services. See id. § 254b(a)(1)(A), (b)(1)(A).

      All agree that the two categories of eligible entities under § 107(l) do not

include Planned Parenthood, an operator of private, specialized family-planning

clinics. Accordingly, KDHE notified Planned Parenthood by letter dated June 14,

2011, that Title X funding would not be available in the upcoming fiscal year

      1
        On June 1, 2012, Kansas Governor Sam Brownback signed into law
Section 82(k) of House Substitute for Senate Bill No. 294, a funding provision
that reenacted the restrictions on Title X funding contained in Section 107(l),
applying it to the upcoming fiscal year. See 2012 Kan. Sess. Laws 2022; 31 Kan.
Reg. 861 (June 7, 2012). On June 29, 2012, the district court extended its
preliminary injunction to apply to and enjoin enforcement of Section 82(k). The
appeal of this injunction is case No. 12-3178. On June 28, 2013, the district court
again extended its preliminary injunction, this time to apply to and enjoin
enforcement of Section 131(k) of Senate Bill No. 171, passed by the Kansas
legislature in 2013. The appeal of this injunction is our case No. 13-3175. These
two appeals have been consolidated with the appeal of the Section 107(l)
injunction in case No. 11-3235; our reasoning applies to all three appeals.

                                        -10-
through its contract with KDHE. KDHE then sought or procured new or

expanded contracts with other service providers satisfying the requirements of

§ 107(l) to serve the geographical areas previously served by Planned Parenthood,

but the district court’s preliminary injunction in this litigation halted KDHE’s

efforts.

       C.    Procedural History

       On June 27, 2011, Planned Parenthood filed suit in the United States

District Court for the District of Kansas seeking declaratory and injunctive relief.

The complaint alleged three counts: (1) that § 107(l) violates, and is therefore

preempted by, Title X because it places eligibility restrictions on the receipt of

funding in excess of and inconsistent with those imposed by federal law; (2) that

§ 107(l) violates the First Amendment by penalizing Planned Parenthood for

associating with abortion providers and advocating for access to abortion

services; and (3) that § 107(l) violates the Fourteenth Amendment by penalizing

the provision of, and association or affiliation with, abortion services, thereby

burdening the right to choose abortion. The complaint named as defendants both

Moser and Brownback, in their official capacities, but the parties have since

dismissed Brownback with prejudice by stipulation. Planned Parenthood sought a

preliminary injunction against the implementation of § 107(l).

       On August 1, 2011, the district court granted a preliminary injunction. The

court decided (1) that § 107(l) imposes eligibility requirements that render it

                                        -11-
“certain that Planned Parenthood cannot successfully participate in Title X

funds,” Aplt. App., Vol. III at 473 (Memorandum & Order at 24, Planned

Parenthood of Kan. & Mid-Mo. v. Brownback, No. 11-2357-JTM (D. Kan. Aug. 1,

2011) (Mem. Op.)); and (2) that the purpose and effect of § 107(l) is to bar

Planned Parenthood, “an entity associated with abortion[,] from the benefit of

federal funding for which it would be otherwise eligible.” Id. at 480 (Mem. Op.

at 31). It therefore ruled that Planned Parenthood had demonstrated a likelihood

of success on the merits of its Supremacy Clause claim and its claim that § 107(l)

infringed on its constitutional rights of association. The court weighed the other

three factors required for a preliminary injunction—the risk of irreparable injury

to the plaintiff, whether the threatened injury outweighs the injury to the opposing

party from an injunction, and whether the injunction would be adverse to the

public interest, see Awad v. Ziriax, 670 F.3d 1111, 1125 (10th Cir. 2012)—and

ruled that each favored Planned Parenthood. Accordingly, it enjoined “any

further enforcement or reliance on Section 107(l)” and ordered Moser “to allocate

all Title X funding for State Fiscal Year 2012 without reference to Section

107(l).” Aplt. App., Vol. III at 485 (Mem. Op. at 36). The court did not address

the Fourteenth Amendment claim based on the right to choose abortion, and that

claim is not at issue in this appeal.

      Moser filed an interlocutory notice of appeal challenging the preliminary

injunction. He raises several grounds for reversal: (1) that neither a § 1983

                                        -12-
action nor an equitable cause of action is available to raise Planned Parenthood’s

Supremacy Clause claim; 2 (2) that even if the Supremacy Clause supplies a cause

of action, Planned Parenthood lacks prudential standing to assert HHS’s exclusive

entitlement to enforce Title X; (3) that the district court erred in finding that

Planned Parenthood is likely to succeed on the merits of its claims; (4) that the

court improperly weighed the other factors required for injunctive relief; and (5)

that the injunction exceeds the limited exception to state sovereign immunity

recognized by the Supreme Court in Ex parte Young, 209 U.S. 123 (1908)

(allowing injunctive relief against state officials violating federal rights).

Planned Parenthood responds that the district court properly evaluated each of the

four considerations for granting injunctive relief, including the likelihood of

success on the merits. It further contends that it has a cause of action under the

Supremacy Clause (although it does not claim to have a cause of action under

§ 1983), that it has standing to assert its claims, and that the injunction does not

infringe the State’s sovereign immunity.

II.   DISCUSSION




      2
         As noted in Part II(A)(2) below, there is a substantial question whether
Moser adequately raised in his original briefs the argument that Planned
Parenthood lacks a cause of action for injunctive relief based on alleged
violations of Title X. Nevertheless, this court requested and received
supplemental briefs on the matter and, as explained in Part II(A)(2), properly
considers it.

                                         -13-
      We have jurisdiction under 28 U.S.C. § 1292(a)(1), which authorizes

appellate review of a district court’s interlocutory order granting a preliminary

injunction. “We review the district court’s grant of a preliminary injunction for

abuse of discretion. A district court abuses its discretion when it commits an

error of law or makes clearly erroneous factual findings.” Edmondson, 594 F.3d

at 764 (citation and internal quotation marks omitted). If the claims by the party

seeking injunctive relief have no merit, granting relief is an abuse of discretion.

See Flood v. ClearOne Commc’ns, Inc., 618 F.3d 1110, 1111 (10th Cir. 2010).

      A.     Supremacy Clause Claim

             1.    Likelihood of Success on the Merits

      The district court agreed with Planned Parenthood that it had shown a

likelihood of success on its Supremacy Clause claim. In the court’s view,

“Congress foreclosed states participating in Title X from creating additional,

narrower standards for application.” Aplt. App., Vol. III at 476 (Mem. Op. at 27).

It explained that § 107(l) created such a standard, “completely excluding a class

of entities who are otherwise qualified under federal law for Title X

participation.” Id. at 477 (Mem. Op. at 28). Thus, it concluded, § 107(l) “is in

direct conflict with federal law and is unconstitutional.” Id. It therefore enjoined

Moser from applying the statute.

      Moser contests this ruling. He argues that § 107(l)’s scheme of prioritizing

funding to public and full-service healthcare providers is consistent with the

                                        -14-
Congressional policy of facilitating the provision of services to low-income

patients. He further argues that although Title X contemplates broad eligibility

for direct grants, nothing in the statute prevents a direct grantee from imposing

additional eligibility criteria for subgrants. And he insists that the State can

simultaneously comply with both Title X and § 107(l). We need not reach those

issues, however, because Moser prevails on another ground: Planned Parenthood

lacks a cause of action to assert its claim for injunctive relief.

                    a.     Cause of Action for Injunctive Relief

      Planned Parenthood does not claim that its cause of action is under

42 U.S.C. § 1983. Nor does it claim that Title X expressly authorizes its suit. It

relies solely on its contention that the Supremacy Clause itself gives it the right to

seek an injunction against state or local law inconsistent with Title X.

      We disagree. We hold that, regardless of whether § 107(l) is inconsistent

with Title X, Planned Parenthood does not have a private cause of action for

injunctive relief under the Supremacy Clause. Our reasons, which we discuss

more fully below, can be summarized as follows: Whether to recognize a private

cause of action for injunctive relief is a matter of statutory interpretation. And

we cannot infer such a cause of action from Title X. HHS, the expert federal

agency charged by Congress with administering Title X, has ample power to

enforce the requirements of the law; private suits for injunctive relief can

undermine the advantages of uniformity and expertise provided by HHS

                                          -15-
supervision; Title X does not clearly notify States that they are subject to such

suits; implementation of § 107(l) does not constitute state enforcement action

forbidding Planned Parenthood from acting as it wishes (as opposed to state

action complying with legislation simply denying subsidies for that activity); and

private suits for injunctions are not traditionally implied in statutes enacted under

the Constitution’s Spending Clause, U.S. Const. art. I, § 8, cl. 1. The remedy for

a State’s violation of Title X is action by HHS, which can then be judicially

reviewed under the Administrative Procedure Act, 5 U.S.C. §§ 701–06. We

explain.

      The Supremacy Clause provides: “This Constitution, and the Laws of the

United States which shall be made in Pursuance thereof . . . , shall be the supreme

Law of the Land; and the Judges in every State shall be bound thereby, any Thing

in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S.

Const. art. VI, cl. 2. It declares that when state or local law conflicts with federal

law, federal law prevails. It does not, however, tell us what that federal law is.

This proposition may seem obvious, but the point might be overlooked when one

considers what remedies are available under federal law. A statute declaring what

the substantive rule is does not necessarily endorse every potential remedy for

violation of that rule. For example, a statute may not allow recovery of punitive

damages, see, e.g., 42 U.S.C. § 2210(s) (Price-Anderson Act), may not allow

damages for emotional distress, see, e.g., id. § 1997e(e) (restricting right of

                                         -16-
prisoner to recover damages for emotional or mental injury under 42 U.S.C.

§ 1983), or may not allow any damages at all, see, e.g., United States v. Johnson,

481 U.S. 681 (1987) (restricting right of service members to sue under Federal

Tort Claims Act).

      Planned Parenthood suggests that the Supremacy Clause requires that

whenever a state statute conflicts with federal law, a private person harmed by the

statute can obtain an injunction in federal court to prohibit the operation of the

statute. True, there are occasions when such injunctions can be obtained. But not

always. For example, under the doctrine established in Younger v. Harris, 401

U.S. 37 (1971), certain state-court proceedings, such as ongoing criminal

prosecutions, cannot be enjoined despite allegations that the statute underlying

the proceeding violates the federal Constitution. And the Tax Injunction Act

(TIA), 28 U.S.C. § 1341, ordinarily forbids a federal court from enjoining the

collection of a state tax even if it allegedly violates federal law. See Rosewell v.

LaSalle Nat’l Bank, 450 U.S. 503 (1981). We doubt that anyone would suggest

that the Supremacy Clause authorizes an injunction barred by the TIA. After all,

the federal law that is supreme is a statute forbidding the injunction. Granting an

injunction “under the Supremacy Clause” would undermine Congress’ statutory

command, not effectuate it.

      Determining what remedies are available for violations of a statute is a

matter of statutory construction. Cf. Alexander v. Sandoval, 532 U.S. 275, 286

                                         -17-
(2001) (“The judicial task is to interpret the statute Congress has passed to

determine whether it displays an intent to create not just the private right but also

a private remedy.”). The statute may make the task easy by spelling out the

remedies. But a court may have to infer whether or not a remedy is available by

using traditional methods of statutory construction. This is true regardless of

what remedy is in question, be it punitive damages, compensation for emotional

distress, or injunctive relief. The answers are not the same for every statute; and

the answers may differ depending on the remedy (for example, injunctive relief

may be implied when a damages remedy is not). But the Supremacy Clause does

not provide the answers. It does not tell us how to interpret federal statutes. It

proclaims only that the federal statute, once interpreted, prevails over state or

local law.

      Deciding whether injunctive relief is available can sometimes be

straightforward. For example, when a federal statute creates a personal right,

Congress has provided an injunctive remedy in 42 U.S.C. § 1983, which states:

      Every person who, under color of any statute, ordinance, regulation,
      custom, or usage, of any State or Territory or the District of
      Columbia, subjects, or causes to be subjected, any citizen of the
      United States or other person within the jurisdiction thereof to the
      deprivation of any rights, privileges, or immunities secured by the
      Constitution and laws, shall be liable to the party injured in an action
      at law, suit in equity, or other proper proceeding for redress, . . . .

(emphasis added); see Mitchum v. Foster, 407 U.S. 225, 242 (1972) (“Congress

plainly authorized the federal courts to issue injunctions in § 1983 actions, by

                                         -18-
expressly authorizing a ‘suit in equity’ as one of the means of redress.”). Even

then, however, injunctive relief under § 1983 may not be appropriate. The

remedial scheme of the statute creating the right may be exclusive, see City of

Rancho Palos Verdes v. Abrams, 544 U.S. 113, 120–27 (2005), or equitable

principles may limit the right to an injunction, see Younger, 401 U.S. at 49–55;

Sprint Commc’ns, Inc. v. Jacobs, 134 S. Ct. 584 (2013).

      The test can be more challenging when the federal statute does not create a

personal right. We need not provide here a test to resolve in all circumstances

when there is a cause of action for injunctive relief even though no personal right

is created by the federal statute allegedly violated by the State. We need analyze

only whether there is such a cause of action under Spending Clause legislation of

the type involved here. Our analysis persuades us that Planned Parenthood has no

cause of action under Title X to enjoin the application of § 107(l).

      First, in deciding whether Congress intended to create an injunctive

remedy, we look to see what other remedies are available for violation of the

federal law. When the law is Spending Clause legislation such as Title X, there is

a powerful alternative remedy available to deter and sanction violations.

Congress has appropriated money and, within limits, see Nat’l Fed’n of Indep.

Bus. v. Sebelius, 132 S. Ct. 2566, 2601–07 (2013), can require the States to

comply with certain conditions in return for accepting some of that money.

Inherent in such legislation is the power of the purse to assure compliance. That

                                        -19-
is certainly the case here. The provision of Title X allegedly violated by § 107(l)

directs how grantees of Title X funds must spend money appropriated by

Congress. If HHS, which administers the grants, thinks that the money is being

misspent, it can refuse to give more funds to Kansas and even clawback money

that Kansas has misspent. See 45 C.F.R. § 92.43(a).

      Second, we ask whether permitting private persons to seek injunctive relief

for alleged violations of Title X would substantially interfere with the

administration of the program by HHS. In our view, it would. HHS has deep

experience and expertise in administering Title X, and the great breadth of the

statutory language suggests a congressional intent to leave the details to the

agency. Although Planned Parenthood may be confident that § 107(l ) is

inconsistent with Title X, HHS may disagree, completely or in part. Absent

private suits, HHS can maintain uniformity in administration with centralized

control. If private suits were allowed, however, interpretation of Title X could be

in the hands of numerous courts. Rather than having a uniform rule enunciated by

the agency in interpreting and applying federal law, different courts could impose

disparate rules depending on which state is expending the appropriated funds. Of

course, administrative actions taken by HHS will often be reviewable under the

Administrative Procedure Act, but only after the federal agency has examined the

matter and had the opportunity to explain its analysis to a court that must show




                                        -20-
substantial deference. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council,

Inc., 467 U.S. 837 (1984).

      The advantages of such centralized, expert administration do not appear to

be controversial and would be obvious to Congress. As the Supreme Court wrote

in denying a private cause of action for damages under 42 U.S.C. § 1983 and the

Family Educational Rights and Privacy Act, “It is implausible to presume that the

same Congress [that created a centralized administrative enforcement scheme]

nonetheless intended private suits to be brought before thousands of federal- and

state-court judges, which could only result in the sort of ‘multiple interpretations’

the Act explicitly sought to avoid.” Gonzaga Univ. v. Doe, 536 U.S. 273, 290

(2002). Justice Breyer concurred, saying:

      Congress may well have wanted to make the agency remedy that it
      provided exclusive—both to achieve the expertise, uniformity,
      widespread consultation, and resulting administrative guidance that
      can accompany agency decisionmaking and to 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 for damages.

Id. at 292 (Breyer, J., concurring). And Chief Justice Roberts recently made the

following observation about legislation similar to Title X:

      The Medicaid Act commits to the federal agency the power to
      administer a federal program; the agency is comparatively expert in
      the statute’s subject matter; the language of the particular provision
      at issue here is broad and general, suggesting that the agency’s
      expertise is relevant; and APA review would provide an authoritative
      judicial determination. Allowing for both Supremacy Clause actions
      and agency enforcement threatens potential inconsistency or

                                         -21-
      confusion, and imperils the uniformity that Congress intended by
      centralizing administration of the federal program in the agency . . . .

Douglas v. Indep. Living Ctr. of S. Cal., Inc., 132 S. Ct. 1204, 1214–15 (2012)

(Roberts, C.J., dissenting) (citations and internal quotation marks omitted); see

also United States v. Hohri, 482 U.S. 64, 71–73 (1987) (observing that the

advantage of national uniformity is one reason why breach-of-contract suits

against the government must ordinarily be brought in the Court of Claims and are

reviewable only in the Federal Circuit).

      Moreover, an important, and apparently desirable, feature of supervision of

spending programs by federal agencies is the play in the joints—the

flexibility—of administrative enforcement. State and local governments can

negotiate compromises, even obtain waivers, from the federal agency. Courts

have much more limited authority in that regard. This feature of administrative

enforcement is of particular moment because of the special nature of Spending

Clause legislation. In the federal-grant context, the State is more a partner than a

subordinate of the federal government, and this relationship limits the authority of

the courts to devise remedies. The State should be informed of what its burdens

are before it accepts the federal funds and assumes the concomitant

responsibilities. “[L]egislation [such as Title X] enacted pursuant to the spending

power is much in the nature of a contract,” and “if Congress intends to impose a

condition on the grant of federal moneys, it must do so unambiguously.”


                                           -22-
Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981). By accepting

federal funding, States necessarily agree to be subject to applicable federal

administrative procedures. That is, they submit to federal executive authority and

acknowledge that the executive authority can pursue remedies—usually

concerning funding—for violations of the federal scheme. Such remedies are part

of any contractual arrangement. But that is a far different burden on the States

than being answerable in court to potentially numerous private parties seeking to

enjoin the operation of state law. States, being political animals, likely prefer

placing enforcement power exclusively with a federal agency, in part because of

its flexibility and the opportunity for negotiation; and they likely expect that to be

the exclusive enforcement power. We should not impose on the States the burden

of private suits unless the Spending Clause legislation “unambiguously” so

requires. Id.

      A third consideration is the nature of the harm suffered by the private

person as a result of a violation of the federal statute. It is one thing if the State

prohibits the person from engaging in conduct protected by the federal law. It is

another if, as with § 107(l), the State only declines to subsidize the conduct.

There is a qualitative difference between prohibiting an activity and refusing to

subsidize it. The Supreme Court, for instance, has drawn that line in rejecting

state laws prohibiting certain abortions but not laws refusing to provide funds for

the practice. See Harris v. McRae, 448 U.S. 297 (1980). And it has held that

                                          -23-
protected speech does not need to be subsidized by the government. See Regan v.

Taxation with Representation of Wash., 461 U.S. 540, 546 (1983) (“Congress has

not infringed any First Amendment rights or regulated any First Amendment

activity. Congress has simply chosen not to pay for TWR’s lobbying.”) True,

denial of a subsidy can create hardship, even great hardship, and Congress may

well decide that the hardship is sufficiently significant that a person denied the

subsidy should have a judicial remedy. But Planned Parenthood does not suggest

that Title X granted it an individual right, which could be enforced under § 1983.

      Finally, we look to tradition. We assume that Congress enacts legislation

aware of a judicial tradition interpreting similar statutes. For example, equitable

tolling is generally read into a federal statute of limitations even when not

expressed in the statute’s language. See Holland v. Florida, 130 S. Ct. 2549,

2560–62 (2010). Relevant to this case, there is no tradition of recognizing a

private party’s right to injunctive relief against a state law that is contrary to

Spending Clause legislation not creating a personal right. There is no reason to

assume that the Congress that enacted Title X anticipated creation of such a

remedy.

      We find significant support for our analysis in a recent Supreme Court

dissent by Chief Justice Roberts, joined by three other Justices and not challenged

by any other Justice on this point. In Douglas, 132 S. Ct. at 1211, Medicaid

providers and beneficiaries had sued to enjoin amendments to California’s

                                          -24-
Medicaid plan that reduced payments to the providers. See id. at 1208–09. They

argued that the amendments were preempted because the amended plan did not

“‘enlist enough providers’ to make Medicaid ‘care and services’ sufficiently

available,” as required by the Medicaid Act. See id. at 1209 (quoting 42 U.S.C.

§ 1396a(a)(30)(A)). The Ninth Circuit held that the plaintiffs could sue to

enforce § 1396a(a)(30)(A) under the Supremacy Clause, because state-plan

amendments that conflict with the Medicaid Act are invalid. See id.; id. at

1211–12 (Roberts, C.J., dissenting). After oral argument in Douglas, the federal

Center for Medicare and Medicaid Services (CMS) approved the challenged

amendments. See id. at 1209. Then, instead of reaching the merits, the Court

remanded for the Ninth Circuit to consider in the first instance whether the

plaintiffs could maintain their Supremacy Clause action after CMS had acted and

a suit under the APA would be available. See id. at 1211.

      Chief Justice Roberts, joined by Justices Scalia, Thomas, and Alito, would

have decided that the plaintiffs lacked a cause of action. Noting that the statute

did not authorize the suit, he explained that “as this case comes to us, the federal

rule is that Medicaid reimbursement rates must meet certain criteria, but private

parties have no statutory right to sue to enforce those requirements in court.” Id.

at 1212 (Roberts, C.J., dissenting). He then concluded that the Supremacy Clause

provides no cause of action. See id. He observed that unlike other constitutional

provisions, the Supremacy Clause itself creates no federal rights, but merely

                                        -25-
“ensure[s] that, in a conflict with state law, whatever Congress says goes.” Id.

Thus, he reasoned, it is not the role of the Supremacy Clause to supply a cause of

action to enforce a federal statute if Congress did not intend to do so. See id. at

1212–13. To hold otherwise, he observed, “would effect a complete end-run

around [the] Court’s implied right of action and [§ 1983] jurisprudence.” Id. at

1213. The Chief Justice found unavailing the plaintiffs’ appeal to “the traditional

exercise of equity jurisdiction.” Id. For a court to recognize an equitable cause

of action when Congress chose not to supply one, he argued, “would raise the

most serious concerns regarding both the separation of powers (Congress, not the

Judiciary, decides whether there is a private right of action to enforce a federal

statute) and federalism (the States under the Spending Clause agree only to

conditions clearly specified by Congress, not any implied on an ad hoc basis by

the courts).” Id. The dissent’s reasoning is sound.

      Turning to the specifics of Title X, the statutory scheme indicates that the

reasons for not recognizing private actions for injunctive relief operate with full

force. The statute clearly contemplates that grants will be administered under the

supervision of HHS. It provides that “[g]rants under [Title X] shall be . . . subject

to such conditions as the Secretary [of HHS] may determine to be appropriate to

assure that such grants will be effectively utilized for the purposes for which

made,” 42 U.S.C. § 300a-4(b); it contains no provision for private enforcement;

and it delegates authority to HHS to establish the regulatory scheme for

                                         -26-
enforcement, see 42 C.F.R. § 59.10; 45 C.F.R. §§ 74.62, 74.73, 92.43, 92.52.

When a statute rests all enforcement authority in a federal agency, never

mentioning the possibility of private litigation, the natural inference is that

Congress favored centralized enforcement, with the courts getting involved only

through the deferential oversight provided by the APA.

      We find persuasive Chief Justice Roberts’s analysis of the quite similar

circumstances presented in Douglas:

      The Medicaid Act commits to the federal agency the power to
      administer a federal program; the agency is comparatively expert in
      the statute’s subject matter; the language of the particular provision
      at issue here is broad and general, suggesting that the agency’s
      expertise is relevant; and APA review would provide an authoritative
      judicial determination. Allowing for both Supremacy Clause actions
      and agency enforcement threatens potential inconsistency or
      confusion, and imperils the uniformity that Congress intended by
      centralizing administration of the federal program in the agency. . . .
      [I]n light of all this, . . . the Supremacy Clause challenge appears at
      best redundant, and [the] continuation of the action in that form
      would seem to be inefficient.

132 S. Ct. at 1214–15 (Roberts, C.J., dissenting) (citations and internal quotation

marks omitted).

      In our view, Title X does not “display[] an intent to create” the remedy

sought by Planned Parenthood under the Supremacy Clause. Alexander, 532 U.S.

at 286. On the contrary, the message of the statutory scheme is that statutory

requirements should be enforced through the administering agency. Supporting

this view is the opinion by the Seventh Circuit in Planned Parenthood of Indiana,


                                         -27-
Inc. v. Comm’r of Indiana State Department of Health, 699 F.3d 962 (7th Cir.

2012). Although it relied on other grounds to reject a claim under the Medicaid

Act virtually identical to the one presented here, it noted that, for the reasons set

forth in Chief Justice Roberts’s dissent, it was “not inclined to agree” with the

proposition that the Supremacy Clause supplied a right of action for injunctive

relief. Id. at 983. Similarly, the Massachusetts Supreme Judicial Court has

adopted the dissent in Douglas. See Bos. Med. Ctr. Corp. v. Sec’y of Exec. Office

of Health & Humans Servs., 974 N.E.2d 1114, 1127–28 (Mass. 2012).

                    b.     Distinguishing Planned Parenthood’s Cases

      Planned Parenthood argues that our conclusion is contrary to binding

precedent. But it cites to no decision of the Supreme Court or this court holding

that when a state (or local) law is contrary to a federal statute not conferring a

personal right, a person can bring a claim under the Supremacy Clause to enjoin

operation of the state law even when (1) the federal law is Spending Clause

legislation and (2) the state law does not subject the person to an adversary

enforcement action prohibiting the person from engaging in particular conduct.

Before showing why the decisions cited by Planned Parenthood are far from

binding in this case, we discuss why we should distinguish cases in which the

federal statute invoked is Spending Clause legislation and the person seeking

injunctive relief is not facing an enforcement action.




                                          -28-
      It should be apparent from our prior discussion why courts should

distinguish cases in which the allegedly preempting statute is Spending Clause

legislation. In that circumstance the federal government’s power of the purse

gives it a very effective means for ensuring that federal law is honored. The

availability of that effective means makes it unnecessary to also recognize

remedies (such as private suits for injunctive relief) that can interfere with

important policies such as reliance on the experience and expertise of

administrative agencies and uniformity of interpretation of the law. Additionally,

when construing Spending Clause legislation (which is of a quasi-contractual

character) courts should be reluctant to infer a private cause of action not clearly

created by the statute.

      The reason to distinguish cases involving enforcement actions should also

be apparent, but further explanation can be helpful. State and local laws prohibit

a good deal of conduct, from selling narcotics, to driving over the speed limit, to

disturbing the peace, to conducting a business without a license. If a person

violates such a law, the government can commence adversary proceedings to

impose sanctions for the violation. When we use the term enforcement actions,

we are referring to adversary legal proceedings by a government to impose such

sanctions on conduct prohibited by law. Sometimes the prohibitory law is

contrary to federal law. One remedy generally recognized in that circumstance is

the availability to the accused of a defense in the adversary proceeding that the

                                         -29-
law allegedly violated is preempted by federal law. For example, in Thompson v.

City of Louisville, 362 U.S. 199 (1960), a person accused of loitering under a

Louisville ordinance successfully defended himself on the ground that the

loitering law was too vague to satisfy federal due process. Given the uniform

precedent in permitting such a defense, one might infer that the defense is

compelled by the Supremacy Clause. But that precedent can readily be explained

on the ground that it is almost always reasonable to infer from the federal law at

issue that it is intended to be available as a defense to enforcement of state or

local law. As in Thompson, permitting the defense may be the only way to

effectuate the federal law. And the “equities” weigh heavily in favor of one who

is being prohibited from engaging in conduct that, under the Supremacy Clause, is

lawful.

          It is important to recognize, however, that even in this circumstance there

may be exceptions. What if, for example, the federal statute prohibited its use as

a defense? Say, Congress, in an effort to assist the trucking industry, enacted a

statute providing that a State receiving federal highway funds could not impose a

speed limit under 80 miles per hour on rural parts of interstate highways. Assume

further that a federal agency could withhold highway funds from States that did

not comply with the speed-limit requirement. To avoid confusion that could

endanger those traveling on interstate highways, however, the statute included a

proviso that forbade anyone from defending against a speeding ticket on the

                                          -30-
ground that the posted speed limit on a highway was below federal requirements.

Could a driver still invoke the Supremacy Clause as a defense to enforcement of a

state speed limit? Certainly not. The Supremacy Clause is the law, but it does

not amend federal legislation to contradict congressional intent. Recognizing the

driver’s defense would infringe the authority of Congress, not effectuate it.

Congress obviously decided that its purposes could best be advanced by limiting

the sanctions against contrary state laws to those provided by the power of the

purse.

         Nevertheless, we can generally presume that a person accused in a state or

local enforcement action of engaging in prohibited conduct is entitled to defend

against the charge on the ground that the conduct is protected under federal law. 3

When that is so, we can also generally presume that a person likely to face such

an enforcement action may proceed in federal court to enjoin enforcement insofar

as it is contrary to federal law. As Justice Kennedy has written, an anticipatory

action to enjoin enforcement of state law is “nothing more than the pre-emptive

assertion in equity of a defense that would otherwise have been available in the

State’s enforcement proceedings at law.” Va. Office for Prot. & Advocacy v.

Stewart, 131 S. Ct. 1632, 1642 (2011) (Kennedy, J, concurring). To be sure, a

person who seeks injunctive relief already has one remedy available—if

         3
         We note that Planned Parenthood has not identified any enforcement
action that could be taken against it in which it could defend on the ground that
§ 107(l) is preempted by federal law.

                                          -31-
enforcement proceedings begin, federal law can be used as a defense. But that

remedy may be ineffectual because the threat of enforcement itself can be

disabling; enforcement proceedings may never need to be initiated because the

person may decide to halt the conduct to avoid the risk. In that circumstance the

injunctive remedy may serve an important purpose and does not interfere with any

other remedy. Once enforcement proceedings begin, however, an injunction is

ordinarily unavailable, both because the “defense” remedy is available and

because permitting injunctions against ongoing enforcement actions could greatly

impair important state interests. See Younger, 401 U.S. at 44–45; Sprint

Comm’ns, Inc. v. Jacobs, 134 S. Ct. 584 (2013). Thus, the preemption defense

and injunctive relief serve as complementary means (really, two forms of the

same remedy) for effectuating federal law when other means are likely

unavailable.

      Moreover, once the courts recognize a federal preemption defense to an

enforcement action, allowing suits to enjoin state enforcement does not increase

the risk of nonuniform interpretation of federal law. Yes, multiple courts will

have the authority to interpret federal law in deciding whether to grant an

injunction. But multiple courts already have the authority to interpret the federal

law in deciding whether that law provides a preemption defense to state

enforcement action.




                                        -32-
      It should be plain that the compelling reasons not to recognize a private

cause of action for injunctive relief under Title X are inapplicable (or at least of

much less weight) when a court is considering an injunction against a state or

local enforcement action based on preemption by federal law not enacted under

the Spending Clause. Unlike the present suit to enjoin § 107(l), such suits for

injunctive relief are a component of what is probably the only means of

effectuating the federal law (the combination of the preemption defense and

injunctive relief); centralized uniformity of interpretation of the federal law is

impossible (at least until a Supreme Court ruling); the state is prohibiting

conduct, not just refusing to subsidize it; and the remedy is a traditional one.

      We now turn to an examination of the cases that Planned Parenthood

asserts to be binding precedent contrary to our conclusion. It is useful to begin

with a lesson from Chief Justice Marshall on how to read precedent. He wrote:

      It is a maxim, not to be disregarded, that general expressions, in
      every opinion, are to be taken in connection with the case in which
      those expressions are used. If they go beyond the case, they may be
      respected, but ought not to control the judgment in a subsequent suit
      when the very point is presented for decision.

Cohens v. Virginia, 19 U.S. 264, 399 (1821).

      The path of the law is not a straight line. It would be a wooden

jurisprudence if every general statement by a court were set in stone. Every

lawyer (and certainly every judge) knows that factual circumstances and

arguments (that is, insights) may be presented that were not anticipated or

                                         -33-
considered by the court issuing the original opinion. We should not read into an

opinion more than the author wrote into it. When courts are presented with new

facts or new arguments, they regularly, and properly, decide to qualify general

rules or recognize exceptions.

      Of course, revisions to precedents can be taken to extremes. Because no

two cases are identical, we could always say we are not bound by precedent

because of differences between the facts in the precedent and in the case before

us. But there needs to be a good reason on which to distinguish a precedent. And

the need for a good reason increases in proportion to the extent to which the

precedent has analyzed and elaborated on the issue. By that standard, it is easy to

see that in this case we are not bound by any precedent of the United States

Supreme Court or this court. No binding opinion has addressed the factors that

we find compelling in this case—the federal statute’s origin in the Spending

Clause and the absence of an enforcement action. Indeed, in not one of the

allegedly precedential decisions cited by Planned Parenthood was the existence of

a Supremacy Clause cause of action for injunctive relief a disputed issue, and

statements regarding the existence of such a cause of action (which appear in only

a couple of the cases) were brief and not supported by substantial analysis.

      We begin with the Supreme Court “precedents” cited by Planned

Parenthood. Most striking, a number of these cases (unavailability of the records

keeps us from knowing precisely how many) were brought under 42 U.S.C.

                                        -34-
§ 1983, which independently provides a right to obtain injunctive relief, mooting

whether the Supremacy Clause does the same. See Wilder v. Virginia Hospital

Ass’n, 496 U.S. 498, 501 (1990); Wright v. City of Roanoke Redevelopment &

Housing Authority, 479 U.S. 418, 419 (1987); Shea v. Vialpando, 416 U.S. 251,

257 (1974); Townsend v. Swank, 404 U.S. 282 (1971) (see Brief for Appellants

Alexander, Alexander v. Swank, No. 70-5032, 1971 WL 134144, at *2 (S. Ct.

1971)); King v. Smith, 392 U.S. 309, 311 (1968).

      In other cited cases we cannot discern the source of the cause of action

because the Court does not address the matter; certainly none of the opinions state

that the source was the Supremacy Clause. In Arkansas Department of Health &

Human Services v. Ahlborn, 547 U.S. 268, 292 (2006), there is no mention of the

Supremacy Clause in the Court’s unanimous opinion, nor is there any mention of

the Clause in the district-court or circuit-court opinions in the case. In Crosby v.

National Foreign Trade Council, 530 U.S. 363 (2000), the source of the cause of

action was apparently not a matter of contention because the opinion contains no

discussion of whether a cause of action exists. In Green v. Mansour, 474 U.S. 64

(1985), the Court denied relief, so the opinion could not be a precedent for the

existence of a cause of action. And Jones v. T_H_, 425 U.S. 986 (1976), was a

summary affirmance with no discussion of the basis of the cause of action. See

Ill. State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 182–83

(1979) (discussing the very limited precedential effect of a summary affirmance).

                                         -35-
      Shaw v. Delta Airlines, Inc., 463 U.S. 85 (1983), is sometimes cited as

supporting the existence of a Supremacy Clause cause of action. But it addressed

only whether there was federal jurisdiction, not the existence of a cause of action,

in a case involving an injunction against a state law prohibiting discrimination.

The existence of a cause of action is a distinct question from whether there is

jurisdiction to consider a claim. See Bell v. Hood, 327 U.S. 678, 682 (1946)

(“Jurisdiction . . . is not defeated . . . by the possibility that the averments might

fail to state a cause of action on which petitioners could actually recover.”). This

point was made clear in another opinion relied on by Planned Parenthood.

Verizon Maryland, Inc. v. Public Service Commission of Maryland, 535 U.S. 635

(2002), held that the federal courts had jurisdiction to hear the case. But in

response to the argument that there was no private cause of action, the Court said

that jurisdiction required only an arguable, not a valid, cause of action, so it did

not need to decide if a cause of action actually existed. See id. at 642–43.

Similarly, Lawrence County v. Lead-Deadwood School District No. 40-1, 469

U.S. 256 (1985), was a review of a state-court mandamus action and contained no

discussion of the propriety of the cause of action; a footnote cited by Planned

Parenthood criticizes a federal circuit court for holding that it lacked jurisdiction

to hear a case raising the same claim, but the Court said nothing about whether

there would have been a proper cause of action in federal court, see id. at 259 n.6.




                                          -36-
      Finally, in Pharmaceutical Research & Manufacturers of America v. Walsh,

538 U.S. 644 (2003), the Court affirmed the circuit court’s reversal of a

preliminary injunction against a state law without addressing whether the plaintiff

had a cause of action. Justice Thomas’s concurrence pointed out that the

respondents had failed to argue that the petitioner was “not entitled to bring a pre-

emption lawsuit as a third-party beneficiary to the Medicaid contract.” Id. at 683.

      We note that the dissent also cites Franchise Tax Board v. Construction

Laborers Vacation Trust, 463 U.S. 1 (1983), as rejecting our view when it stated

that “a claim of federal preemption does not always arise as a defense to a

coercive action,” id. at 12 n.12. But the cases cited by the Court as illustrations

of that proposition, see id. at 20 n.20, make clear that all the Court was saying is

that preemption can be raised not only as a defense but also in suits for

injunctions or declaratory judgments. It was not deciding when it can be a basis

for injunctive relief, and it was hardly saying that preemption always provides a

cause of action for injunctive relief. As for the dissent’s citation of Virginia

Office for Protection & Advocacy v. Stewart, 131 S. Ct. 1632 (2011), the only

issue before the Court was the scope of the exception to the Eleventh Amendment

recognized in Ex parte Young, 209 U.S. 123 (1908). The existence of a cause of

action was not addressed. Suggesting caution in reading too much into the

opinion is that the author was Justice Scalia, who less than a year later joined the

dissent in Douglas.

                                         -37-
      The Supreme Court has told us that even on questions of jurisdiction, which

courts always have a duty to consider, precedent is not established by the Court’s

decision to hear a case if the Court does not address the issue of jurisdiction. See

Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 91 (1998) (“drive-by

jurisdictional rulings . . . have no precedential effect”). A fortiori, cases that do

not consider whether a cause of action under the Supremacy Clause exists do not

create precedent on the issue. It is hardly unusual for the Court to assume,

without deciding, the existence of a cause of action that has not been challenged.

See, e.g., Lake Country Estates, Inc. v. Tahoe Reg’l Planning Agency, 444 U.S.

391, 398 (1979).

      Turning to the decisions of this court, the earliest three opinions cited by

Planned Parenthood as precedential did not address the possibility of causes of

action under the Supremacy Clause. In Planned Parenthood v. Dandoy Ass’n of

Utah, 810 F.2d 984 (10th Cir. 1987), the suit was brought under 42 U.S.C.

§ 1983, which unquestionably allows for injunctive relief. See Planned

Parenthood Ass’n of Utah v. Dandoy, 635 F. Supp. 184, 186 (D. Utah 1986)

(stating that case was brought under § 1983). In Jane Does 1 Through 4 v. Utah

Department of Health, 776 F.2d 253 (10th Cir. 1985), the opinion made no

mention of the basis of the cause of action, did not mention the Supremacy

Clause, and stated, “We do not see a preemption issue in this case,” id. at 256.




                                          -38-
And in Hern v. Beye, 57 F.3d 906 (10th Cir. 1995), the court also did not discuss

the basis of the cause of action and did not mention the Supremacy Clause.

      That leaves us with the two of our opinions on which Planned Parenthood

places its principal reliance: Edmondson, 594 F.3d 742, and Qwest Corp., 380

F.3d 1258. But as opinions that purportedly have definitively resolved the issue

before us, they are remarkably short on discussion. In neither was the existence

of a Supremacy Clause cause of action disputed. And of particular importance,

neither involved Spending Clause legislation and both involved relief from

enforcement actions.

      Edmondson dealt with the issue in a footnote stating that one of the

defendants had challenged the plaintiffs’ right to bring suit under 42 U.S.C.

§ 1983 but had not challenged the plaintiffs’ invocation of the Supremacy Clause.

It then quoted Qwest as follows: “We have held that ‘[a] party may bring a claim

under the Supremacy Clause that a local enactment is preempted even if the

federal law at issue does not create a private right of action.’” 594 F.3d at 756

n.13. That is the sum of the court’s discussion and analysis on an issue not

contested by the parties. Of course, a short holding is as binding as a long one.

But the point here is that the parties had not sought a ruling on the issue, the issue

was not argued in the briefs, and the court certainly had no occasion to consider

the full extent of when the general rule would apply. Our holding in this case is

limited to a claim for injunctive relief under the Supremacy Clause when the

                                         -39-
allegedly preempting federal law is a statute enacted under the Spending Clause

and the injunction sought is not to halt an enforcement action. In Edmondson the

preempting statute was the federal Immigration Reform and Control Act (not

Spending Clause legislation) and the injunctive relief affirmed by the panel was

to halt enforcement action. 4 It would be to adopt a formalism inconsistent with

our duties as judges to say that the sentence in Edmondson forecloses our

authority to recognize an exception to the general rule stated in Edmondson for

the very different circumstances present in this case.

      The discussion in Qwest was not significantly longer. It consisted of four

conclusory sentences, citing decisions by two other circuits. See id. at 1266.

There was no need for any additional analysis because no one disputed the

      4
         The district-court injunction at issue in Edmondson involved three
provisions of the Oklahoma Taxpayer and Citizen Protection Act of 2007. First,
it enjoined the Oklahoma Attorney General from enforcing Section 7(B), which
prohibited a contractor from contracting with a public employer unless it used a
particular system to verify eligibility. We reversed that portion of the injunction.
See Edmondson, 594 F.3d at 750. Our decision therefore cannot be characterized
as affirming a cause of action in that respect. Second, it enjoined the state Human
Rights Commission from enforcing Section 7(C), which made it a “discriminatory
practice,” id. at 760, for an employer to discharge an employee while retaining
another employee that the employer knew or should have known was an
unauthorized alien. See id. at 758, 760, 765 (describing the Act’s remedies—
cease-and-desist orders, reinstatement, back pay, costs, and attorneys’ fees—as
“‘sanctions’”). This was certainly an injunction against potential enforcement
action. Third, the district-court injunction enjoined the state Tax Commission
from enforcing Section 9, which, as characterized by our decision, imposed “a
regulatory penalty, not a tax,” on “contracting entities that do not verify
eligibility [under the immigration laws] or withhold taxes from their independent
contractors.” Id. at 763. Again, this was an injunction against potential
enforcement action.

                                        -40-
existence of a cause of action. In its reply brief on appeal, the City of Santa Fe

argued for the first time that the district court lacked jurisdiction because there

was no federal-question jurisdiction to hear the request for an injunction. The

Qwest opinion dealt with the jurisdictional issue in a footnote. See 380 F.3d at

1264 n.1. As explained above, the existence of jurisdiction is quite different from

the existence of a cause of action. See Bell, 327 U.S. at 682.

      The statement in Qwest regarding a Supremacy Clause cause of action was

not in response to a question raised by a party about whether a cause of action

existed. No such question was raised. Rather, the statement appeared in a

discussion addressing Qwest’s (losing) argument that it had a personal right under

47 U.S.C. § 253 that was enforceable under § 1983, so it could recover attorney

fees under 42 U.S.C. § 1988(b). The statement was background used by the panel

majority to argue that some comments by Senators in the Congressional Record

did not indicate that the Senators intended to create a personal right. See 380

F.3d at 1265–66. Indeed, our analysis did not require that there actually be a

private right to injunctive relief but only that the few Senators whose statements

had been relied on (by courts reaching a different result from ours on the § 1983

issue) believed that there was such a private right of action.

      Ironically, our Qwest opinion recognized that the existence of a private

right of action under a federal statute may be affected by whether the statute is

Spending Clause legislation. In analyzing whether § 253 created a right

                                         -41-
enforceable through § 1983, we applied the test set forth by the Supreme Court in

Gonzaga University v. Doe, 536 U.S. 273. We noted that Gonzaga, unlike Qwest,

involved Spending Clause legislation, and that the Supreme Court had been

reluctant to interpret such legislation as creating federal rights; but we assumed,

without deciding, that the Gonzaga test applied because the parties had agreed

that it did. See Qwest, 380 F.3d at 1265 n.2. Presumably the Qwest court would

not have thought it untoward to consider whether to distinguish Spending Clause

legislation from other legislation with regard to whether it created a cause of

action for damages. The same should be true for a cause of action for injunctive

relief.

          Again, Qwest had no occasion to consider whether there is a private cause

of action for an injunction under the Supremacy Clause when the allegedly

preempting statute is Spending Clause legislation and the injunction is not to halt

enforcement action. The injunction in Qwest was founded on the Federal

Telecommunications Act of 1996, not enacted under the Spending Clause. And,

as set forth in the footnote, 5 the injunction in Qwest was described by the

          5
         Qwest’s complaint alleged, and the City’s answer admitted, that failure to
comply with the Santa Fe ordinance would subject Qwest to criminal and civil
penalties. See Compl. (Qwest v. City of Santa Fe, No. CIV 00 795 LH (D.N.M.
June 1, 2000)), and City of Santa Fe’s Answer to Pl.’s Compl. dated June 1, 2000
(id., June 22, 2000). The context of the case is important. Qwest had a state
license requiring it to serve anyone requesting service within Santa Fe and
forbidding it from terminating service without state-agency permission. See
Qwest Corp. v. City of Santa Fe, 224 F. Supp. 2d 1305, 1308 (D.N.M. 2002). It
                                                                         (continued...)

                                          -42-
plaintiff, and is best understood, as an injunction against enforcement

proceedings. 6

      We do not dispute that Edmondson and Qwest are binding precedent for the

contexts in which those cases arose. But the case before us, unlike Edmondson

and Qwest, involves Spending Clause legislation. And Planned Parenthood is not

facing a potential enforcement action—an adversary legal proceeding to impose a



      5
          (...continued)
had been operating under a continuing franchise agreement with the City, which,
in exchange for a 2% franchise fee, let Qwest use City rights-of-way to provide
services. See id. But then Santa Fe adopted an ordinance imposing various
burdens on telecommunications carriers (such as a requirement to enter into a
costly lease for each City right-of-way being used). Qwest claimed that the
ordinance violated federal law barring local laws that “prohibit or have the effect
of prohibiting” a telecommunications carrier from providing service, 47 U.S.C.
§ 253(a), because Qwest would be subject to penalties if it continued to provide
telecommunications service as it had in the past (that is, servicing anyone
requesting services within Santa Fe, as permitted by the franchise giving it access
to City rights-of-way and as required by the state licence) without complying with
the new, burdensome provisions of the ordinance. Qwest’s concern was that
Santa Fe was effectively prohibiting it from providing telecommunications
service. The district court “enjoined [the City and its agents] from taking any
enforcement action against Qwest” based on various sections of the ordinance.
Qwest Corp., 224 F. Supp. 2d at 1332 (emphasis added).
      6
        The dissent says that Qwest is like this case in that Qwest could have
sought review under the APA. Perhaps Qwest could have found a way to obtain a
final order from the FCC that would have been reviewable under the APA. But
that consideration was never addressed by the court and parties in Qwest. Indeed,
Qwest appears to agree with two circuit decisions cited by the opinion as stating
that the FTC does not have authority to enforce preemption claims relating to
local-government management of public rights-of-way, the very type of
preemption claim raised in Qwest. See 380 F.3d at 1265–66. In any event, the
availability of APA review is only one factor in deciding whether Congress
intended to allow a private suit for an injunction.

                                        -43-
sanction for engaging in prohibited activity. After all, § 107(l) does not prohibit

Planned Parenthood from doing anything. It does not say that all health-care

providers must offer comprehensive care. It does not even prohibit those who do

not offer comprehensive care from providing family-planning services. Planned

Parenthood can continue to do so. The statute says only that the State will not

subsidize family-planning services provided by those who do not offer

comprehensive care.

      Were we to say that Edmondson and Qwest, in which no party challenged

the existence of a Supremacy Clause cause of action, are binding precedent that

such a cause of action is available even in very different contexts, we would be

unfaithful to Chief Justice Marshall’s maxim that “general expressions” in an

opinion that “go beyond the case . . . may be respected, but ought not to control

the judgment in a subsequent suit when the very point is presented for decision.”

Cohens, 19 U.S. at 399. Because we do not believe that Title X contemplates

enforcement through private suits for injunctive relief and because the office of

the Supremacy Clause is to effectuate federal statutes, not contravene them, we

hold that Planned Parenthood is without a cause of action to assert its Supremacy

Clause claim. 7

      7
        The dissent cites ten opinions from other circuits as support for a
preemption cause of action for injunctive relief. But none weaken our analysis.
Pharmaceutical Research & Manufacturers of America v. Concannon, 249 F.3d
66, 73 (1st Cor. 2001), aff’d by Pharmaceutical Research & Manufacturers of
                                                                        (continued...)

                                        -44-
      7
          (...continued)
America v. Walsh, 538 U.S. 644 (2003), addressed only standing, did not rely on
any Supreme Court preemption cases, and held that the state law was not
preempted (so any statement about the existence of a cause of action would be
dictum). St. Thomas–St. John Hotel & Tourism Ass’n v. Government of United
States Virgin Islands, 218 F.3d 232, 241 (3d Cir. 2000), addressed only
jurisdiction (with at most one sentence suggesting the existence of a cause of
action), and held that the local law was not preempted. The only Supreme Court
case relied on by Western Air Lines, Inc. v. Port Authority, 817 F.2d 222, 225–26
(2d Cir. 1987), was City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624
(1973), which did not address whether there was a cause of action; and Western
Air Lines held that the local law was not preempted. Lankford v. Sherman, 451
F.3d 496, 509 (8th Cir. 2006), suggested the existence of a preemption cause of
action but it relied only on language in Golden State Transit Corp. v. City of Los
Angeles, 493 U.S. 103 (1989), which appeared to address only the scope of 42
U.S.C. § 1983. Wright Electric, Inc. v. Minnesota State Board of Electricity, 322
F.3d 1025, 1028–29 (8th Cir. 2003), addressed only subject-matter jurisdiction
(relying on Shaw, 463 U.S. at 96 n.14 for support), and held that the local law
was not preempted. Lewis v. Alexander, 685 F.3d 325, 345–46 & n.20 (3d Cir.
2012), held that there was a cause of action, but the only Supreme Court decision
on which it relied (calling it “binding precedent”) was Shaw, which, as we have
explained, addressed only jurisdiction. Pharmaceutical Research &
Manufacturers of America v. Thompson, 362 F.3d 817, 819 n.3 (D.C. Cir. 2004),
held that the state law was not preempted, but it said that there was a cause of
action, relying on Walsh, 538 U.S. 644. The court said that “[b]y addressing the
merits of the parties’ arguments without mention of any jurisdictional flaw, the
[majority of the Justices] appear to have sub silentio found no flaw,” and cited
Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94–102 (1992), for
the proposition that “federal courts must ensure they have jurisdiction before
considering merits.” 362 F.3d at 819 n.3. But the existence of a cause of action
is not jurisdictional, and, as we have previously noted, Steel Co. itself warned that
“drive-by jurisdictional rulings . . . have no precedential effect,” 523 U.S. at 91.
We should be particularly reluctant to infer that the Supreme Court implicitly
decided a nonjurisdictional issue on which it did not grant certiorari. Indep.
Living Ctr. of S. Cal., Inc. v. Shewry, 543 F.3d 1050 (9th Cir. 2008), which
ultimately (after remand to the district court and a second appeal to the Ninth
Circuit) was vacated by the Supreme Court in Douglas, see Shewry, id., remanded
to No. CV 08-3155 CAS (MANx), 2008 WL 3891211 (C.D. Cal. Aug. 18, 2008),
aff’d sub nom. Indep. Living Ctr. of S. Cal., Inc. v. Maxwell-Jolly, 572 F.3d 644
                                                                        (continued...)

                                        -45-
                2.     Waiver

      Planned Parenthood argues that Moser has waived the issue of whether it

has a cause of action for injunctive relief under the Supremacy Clause. Planned

Parenthood may be correct. Although Moser’s opening brief directed our

attention to the Douglas issue and we questioned Planned Parenthood about the

matter at oral argument, Moser did not press the point in his briefs as we expect a

party to do if it wishes us to decide an issue. Waiver, however, binds only the

party, not the court. A party that waives an issue is not entitled to have us

consider and rule on it. But it is well-settled that courts have discretion to raise

and decide issues sua sponte, even for the purpose of reversing a lower-court

judgment.

      In United States National Bank v. Independent Insurance Agents of

America, Inc., 508 U.S. 439 (1993), the Supreme Court addressed the petitioner’s


      7
          (...continued)
(9th Cir. 2009), vacated and remanded sub. nom. Douglas v. Indep. Living Ctr. of
S. Cal., Inc., 132 S. Ct. 1204 (2012), also relied on Shaw and Walsh, and Supreme
Court decisions like City of Burbank that did not address whether there was a
cause of action. Planned Parenthood of Houston & Southeast Texas v. Sanchez,
403 F.3d 324, 331–34 (5th Cir. 2005), improperly based its cause-of-action ruling
on Walsh, with additional improper support from Verizon Maryland, Inc. v.
Public. Service Commission of Maryland, 535 U.S. 635 (2002), which we
distinguished above as addressing only jurisdiction. Finally, the dissent cites the
post-Douglas opinion in United States v. South Carolina, 720 F.3d 518 (4th Cir.
2013). But that case concerned an injunction against enforcing a criminal statute,
an injunction fully consistent with the Douglas dissent and this opinion.

                                         -46-
argument that the court of appeals had improperly considered an argument (that

Congress had repealed the statute permitting certain banks to sell insurance) not

raised by the respondents in the circuit court in their opening brief or even at oral

argument, despite that court’s invitation, see id. at 445. Indeed, in response to the

circuit court’s orders for supplemental briefing, the respondents did not take a

position on the merits. See id. But the Court wrote, “[W]hen an issue or claim is

properly before the court, the court is not limited to the particular legal theories

advanced by the parties, but rather retains the independent power to identify and

apply the proper construction of governing law.” Id. at 446 (internal quotation

marks omitted). In language particularly pertinent here, the Court said that “a

court may consider an issue antecedent to and ultimately dispositive of the

dispute before it, even an issue the parties fail to identify and brief.” Id. at 447

(ellipsis and internal quotation marks omitted). The Court held that the circuit

court had not abused its discretion in raising and addressing the issue. See id. at

447. But it reversed on the merits unanimously.

      It is not hard to find examples of appellate courts raising issues sua sponte,

although sometimes the opinion does not mention that the court did so. An en

banc Ninth Circuit recently pronounced that it “may consider an issue that has not

been adequately raised on appeal if such a failure will not prejudice the opposing

party.” United States v. Cotterman, 709 F.3d 952, 960 (9th Cir. 2013). It found

no prejudice in that case because it had “called for and received supplemental

                                          -47-
briefs by both parties.” Id. (internal quotation marks omitted). The Fifth Circuit

did the same in United States v. Key, 599 F.3d 469, 474 (5th Cir. 2010). And we

disposed of an appeal on an unraised antecedent issue in Hanson v. Wyatt, 552

F.3d 1148 (10th Cir. 2008), although it would have been better if we had

requested supplemental briefing.

      Sometimes it may even be improper not to consider an issue waived by the

parties. Certainly when the opposing parties both agree that a contract is

unambiguous (but they differ on the meaning), we should be able to decide

otherwise. And we think it significant that Justice Stevens (joined by Justice

Marshall) once wrote a dissent faulting the majority, which held that the Federal

Arbitration Act (FAA) compelled arbitration of an employment claim, because it

had not addressed the unraised (except by amici) question of whether the FAA

extends to employment disputes, a question “clearly antecedent to disposition of

this case.” Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 37 (1991)

(Stevens, J., dissenting). Justice Stevens pointed out that already in that term of

court, “the Court ha[d] on at least two occasions decided cases on grounds not

argued in any of the courts below or in the petitions for certiorari.” Id.

      We are comfortable with the propriety of our addressing the cause-of-action

issue. Whether there is a cause of action under the Supremacy Clause for

injunctive relief is certainly a question antecedent to whether injunctive relief is




                                         -48-
proper in a particular case. 8 We see no unfairness to Planned Parenthood given

the opportunity we have provided for it to submit two briefs on the subject. And

we think this issue is sufficiently substantial and important to demand our

attention. At least four members of the Supreme Court appear to believe that

there is no cause of action in this type of case, and, as the dissent here notes, they

might go further than this opinion in restricting suits for injunctive relief. To be

sure, four is not a majority of the Court; but the fact that the issue is as yet

undecided argues for, rather than against, consideration of an issue that has

clearly grabbed the attention of the Justices.

             B.       First Amendment Claim

      The district court also granted Planned Parenthood a preliminary injunction

against implementation of § 107(l) on the ground that it infringed Planned

Parenthood’s First Amendment rights. This claim was brought under § 1983, so

there is no dispute that Planned Parenthood has a cause of action. We therefore

address the merits.




      8
        The dissent seems to suggest that the only issues that can be termed
“antecedent” are jurisdictional issues. But the issue raised by Justice Stevens’s
dissent in Gilmer was quite similar to the issue here—whether the Federal
Arbitration Act created a cause of action in the context of employment disputes.
See 500 U.S. at 36–37. And the “antecedent” issue in United States National
Bank was whether the Comptroller of the Currency had statutory authority to
permit certain national banks to sell insurance outside their communities. See 508
U.S. at 441.

                                          -49-
      Moser challenges the preliminary injunction, arguing that § 107(l) contains,

on its face, nothing that discriminates based on speech or association. He

contends that the law neither conditions eligibility for a Title X subgrant on the

relinquishment of First Amendment rights, nor punishes entities for exercising

such rights. Planned Parenthood argues in response that § 107(l) imposes an

unconstitutional condition because it penalizes the exercise of Planned

Parenthood’s rights “ to associate with entities that provide abortions and to

advocate for access to abortion services .” Aplee. Br. at 24. We agree with

Moser.

      We begin by stating our understanding of the unconstitutional-conditions

doctrine. Under the “modern unconstitutional conditions doctrine . . . the

government may not deny a benefit to a person on a basis that infringes his

constitutionally protected freedom of speech even if he has no entitlement to that

benefit.” Bd. of Cnty. Comm’rs v. Umbehr, 518 U.S. 668, 674 (1996) (ellipsis

and internal quotation marks omitted). To do so, the Supreme Court has

explained, “would allow the government to produce a result which it could not

command directly.” Perry v. Sindermann, 408 U.S. 593, 597 (1972) (brackets and

internal quotation marks omitted). The Court has applied this doctrine in two

distinct contexts.

      First, the doctrine has been applied when the condition acts prospectively

in statutes or regulations that limit a government-provided benefit—typically a

                                         -50-
subsidy or tax break—to those who refrain from or engage in certain expression

or association. See, e.g., FCC v. League of Women Voters, 468 U.S. 364, 366

(1984) (federal statute that forbids recipients of public-broadcasting subsidy from

“engag[ing] in editorializing” (internal quotation marks omitted)); Speiser v.

Randall, 357 U.S. 513, 515 (1958) (state constitutional provision and effectuating

statute that grant tax exemption only to veterans who pledge not to advocate

overthrowing the government). These cases recognize that the government

ordinarily can impose conditions on the receipt of government funding, but that

conditioning a benefit on someone’s speech or association achieves an effect

similar to direct regulation of the speech or association. See Rumsfeld v. Forum

for Academic & Institutional Rights, 547 U.S. 47, 59 (2006). These cases have

addressed only conditions explicitly imposed by the law.

      Second, the unconstitutional-conditions doctrine has been applied when the

condition acts retrospectively in a discretionary executive action that terminates a

government-provided benefit—typically public employment, a government

contract, or eligibility for either—in retaliation for prior protected speech or

association. See, e.g., Umbehr, 518 U.S. at 671 (termination of independent

contractor by county officials in retaliation for contractor’s criticism of county

board); Perry, 408 U.S. at 597 (nonrenewal of professor’s contract with state

university by board of regents in retaliation for his criticizing the board). In these

cases, the government official’s action has not been compelled by a statute or

                                         -51-
regulation; rather, the challenged action is one that would be within the official’s

discretion if it were not taken in retaliation for the exercise of a constitutional

right. Thus, these cases necessarily examine the official’s motive for taking the

action; the challenge will be rejected unless retaliation against the protected

conduct was “a substantial or motivating factor” for taking the action and the

official would not “have taken the same action . . . in the absence of the protected

conduct.” Umbehr, 518 U.S. at 675.

      Neither of these contexts is present here. The first is absent because

nothing in § 107(l) prohibits subgrantees—or even their officers or employees—

from advocating abortion rights or associating with abortion providers. Nor does

any advantage accrue to a potential recipient by its advocacy against abortion.

Planned Parenthood could qualify under the statute if it expanded its services to

satisfy the requirements to be an FQHC. It does not dispute that, on its face,

§ 107(l)’s scheme of prioritizing funding to public entities and full-service

healthcare providers does not discriminate in funding based on a potential

recipient’s speech or association.

      Rather, Planned Parenthood attempts to fit its claim within the second

category of cases, those in which a person is penalized by discretionary executive

action for prior speech or association. It asserts that § 107(l) violates the First

Amendment “by imposing a penalty on [Planned Parenthood’s] association or

affiliation with, abortion services.” Aplt. App., Vol. I at 21. And to show that

                                          -52-
§ 107(l) imposes a penalty, it attempts to show the motive for enactment of the

measure. It points to the following evidence: (1) a declaration by a Planned

Parenthood employee that she heard members of both houses of the Kansas

legistature refer to § 107(l) as the “‘Planned Parenthood’ provision” and heard

Representative Lance Kinzer, who introduced the measure, confirm during floor

debates that it “was designed to defund Planned Parenthood,” id. at 62–63; (2) a

press release from Kinzer’s office stating that § 107(l) “took all state funding

away from Planned Parenthood to ensure that state dollars are not used for

abortion services,” id. at 196; (3) a substantially identical release from the

Speaker of the House Mike O’Neal, id. at 197; (4) a post by Kinzer on his

Facebook page hailing the passage of his “floor amendment to deny Title X

funding to Planned Parenthood for the balance of FY2011,” id. at 199; and (5) a

news article quoting a spokesperson for the Governor stating that “Gov.

Brownback, along with the overwhelming majority of Kansans, opposes taxpayer

subsidy of abortions,” id., Vol. II at 202 (internal quotation marks omitted).

      But Planned Parenthood cites no Supreme Court or Tenth Circuit authority

for expanding the second category of unconstitutional-condition cases—those in

which adverse discretionary executive action was motivated by the plaintiff’s

speech or association—to legislative enactments. Indeed, we are bound by

Supreme Court precedent not to consider the motives of lawmakers to determine




                                         -53-
whether legislation that imposes no burden on speech (or expressive conduct) or

association was enacted to penalize speech or association.

      United States v. O’Brien, 391 U.S. 367 (1968), considered the 1965

amendment to the Universal Military Training and Service Act of 1948 to impose

criminal penalties on anyone who “knowingly destroys [or] knowingly mutilates” a

draft card. Id. at 370 (internal quotation marks omitted). The defendant was

convicted of violating the statute after he burned his draft card “publicly to

influence others to adopt his antiwar beliefs.” Id.

      O’Brien is best known for setting forth the test for determining the

constitutionality of a statute that restricts expressive conduct. See id. at 377 (“A

government regulation [of expressive conduct] is sufficiently justified if it is

within the constitutional power of the Government; if it furthers an important or

substantial governmental interest; if the governmental interest is unrelated to the

suppression of free expression; and if the incidental restriction on alleged First

Amendment freedoms is no greater than is essential to the furtherance of that

interest.”); see also Texas v. Johnson, 491 U.S. 397, 407–20 (1989) (invalidating

state flag-burning statute because one of state’s asserted interests was not

implicated on the facts of the case and the other was related to the suppression of

expression). The statute satisfied that test. See O’Brien, 391 U.S. at 382.

      But the Court then considered the argument that the statute was

unconstitutional because Congress’ “purpose” was “to suppress freedom of

                                         -54-
speech.” Id. at 382–83 (internal quotation marks omitted). The Court rejected

the argument as illegitimate, relying on the “familiar principle of constitutional

law that this Court will not strike down an otherwise constitutional statute on the

basis of an alleged illicit legislative motive.” Id. at 383. It set forth three reasons

for that practice. First, determining the motives of all, or even a majority, of a

legislative body is fraught with difficulty. As the Court explained:

      Inquiries into congressional motives or purposes are a hazardous
      matter. When the issue is simply the interpretation of legislation, the
      Court will look to statements by legislators for guidance as to the
      purpose of the legislature, because the benefit to sound decision-
      making in this circumstance is thought sufficient to risk the
      possibility of misreading Congress’ purpose. It is entirely a different
      matter when we are asked to void a statute that is, under well-settled
      criteria, constitutional on its face, on the basis of what fewer than a
      handful of Congressmen said about it. What motivates one legislator
      to make a speech about a statute is not necessarily what motivates
      scores of others to enact it, and the stakes are sufficiently high for us
      to eschew guesswork.

Id. at 383–84 (footnote omitted). Second, the Court noted the futility of striking

down a statute “which could be reenacted in its exact form if the same or another

legislator made a ‘wiser’ speech about it.” Id. at 384. Third, it expressed

reluctance to invalidate—“essentially on the ground that it is unwise

legislation”—a beneficial law because of the tainted process by which it was

enacted. Id.; see John Hart Ely, Legislative & Administrative Motivation in

Constitutional Law, 79 Yale L.J. 1205, 1212–16 (1970) (characterizing the




                                          -55-
Court’s three reasons for refusing to rely on legislative motive as ascertainability,

futility, and disutility).

       As here, the plaintiff in O’Brien relied primarily on the statements of three

lawmakers, the only ones to speak during floor debate. But the Court downplayed

the importance of the statements, saying that “[t]here was little floor debate on

[the challenged] legislation in either House,” the statute having passed after only

a “brief statement” by one senator and statements by two congressmen. O’Brien,

391 U.S. at 385. It added that although the Senate and House Armed Services

Committee reports had made “clear a concern with ‘defiant’ destruction of” draft

cards, “both reports also indicate[d] that this concern stemmed from an

apprehension that unrestrained destruction of cards would disrupt the smooth

functioning of the Selective Service System.” Id. at 385–86. Although one might

argue that the statements by the supporters of § 107(l) are more probative of

legislative purpose than were the statements regarding the draft-card statute, the

bottom line of O’Brien was not the weakness of the evidence but its irrelevance.

       We recognize that the Supreme Court has considered legislative motive or

purpose in assessing whether a statute is valid under the Establishment Clause and

the Equal Protection Clause. See Edwards v. Aguillard, 482 U.S. 578, 585 (1987)

(invalidating law under Establishment Clause based on state’s lack of a legitimate

secular purpose); Wallace v. Jaffree, 472 U.S. 38, 59 (1985) (same); Hunter v.

Underwood, 471 U.S. 222, 233 (1985) (invalidating state constitutional provision

                                         -56-
under Equal Protection Clause based on racially discriminatory motive and

impact); Crawford v. Bd. of Educ. of L.A., 458 U.S. 527, 543–45 (1982) (rejecting

equal-protection challenge to state constitutional amendment limiting state

court-ordered busing on ground that it was not adopted with a discriminatory

purpose); Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252,

266–67 (1977) (rejecting equal-protection challenge to city’s rezoning decision on

ground that the challengers failed to carry their burden of proving that racially

discriminatory purpose was a motivating factor). 9 But Planned Parenthood has

not pointed to any decision of the Supreme Court that has invalidated a statute

containing no explicit restriction on speech (or expressive conduct) or association

on the ground that the “motive” of the legislature was to penalize a person for the

person’s speech or association.



      9
        Planned Parenthood cites cases inquiring into legislative history to
interpret a statute, arguing that these cases support consideration of legislative
background here. We find these cases unpersuasive. As noted above, the
Supreme Court observed in O’Brien:

      When the issue is simply the interpretation of legislation, the Court
      will look to statements by legislators for guidance as to the purpose
      of the legislature, because the benefit to sound decision-making in
      this circumstances is thought sufficient to risk the possibility of
      misreading Congress’ purpose. It is entirely a different matter when
      we are asked to void a statute that is, under well-settled criteria,
      constitutional on its face, on the basis of what fewer than a handful
      of Congressmen said about it.

391 U.S. at 383–84 (footnote omitted).

                                         -57-
      On the contrary, after the decisions cited in the prior paragraph the

Supreme Court has reiterated in the context of a First Amendment retaliation

claim that a court cannot inquire into a legislator’s motives. Bogan v. Scott-

Harris, 523 U.S. 44 (1998), presents a clear contrast to the Court’s decision less

than two years earlier in Umbehr. In Umbehr the Court had held that an

independent contractor could sue two members of the board of county

commissioners who had allegedly terminated his government contract in

retaliation for his criticism of the county and the board. See 518 U.S. at 670–73.

The Court applied to independent government contractors essentially the same

protection provided to public employees.

      In Bogan the government conduct was quite similar to that in Umbehr,

except that the alleged retaliation took the form of legislation rather than

executive action. The city had adopted an ordinance eliminating the city’s

Department of Health and Human Services, of which plaintiff was the sole

employee. Plaintiff alleged that her department was eliminated in retaliation for

her filing a complaint against another city employee, an action protected by the

First Amendment. In ruling that the defendant mayor and city councilor were

protected from liability by absolute legislative immunity, the unanimous Court

noted that it “is ‘not consonant with our scheme of government for a court to

inquire into the motives of legislators.’” Bogan, 523 U.S. at 55 (quoting Tenney




                                         -58-
v. Brandhove, 341 U.S. 367, 377 (1951)). 10 If such inquiry is improper in the

Bogan context, we fail to see how it could be proper here.

      Even if we were not bound by O’Brien and Bogan, we would be most

reluctant to expand the statutory-motive cases to the arena of freedom of speech

and association. The implications of doing so are daunting. Planned

Parenthood’s theory raises the prospect of every loser in a political battle

claiming that enactment of legislation it opposed was motivated by hostility

toward the loser’s speech. That is essentially what Planned Parenthood argues

here. Planned Parenthood favors abortion rights. At least some influential

Kansas lawmakers take a contrary view. If they act on that view to favor

legislation opposed by Planned Parenthood, is the statute to be struck down as

violating Planned Parenthood’s First Amendment rights? If Congress imposes a

tax on oil companies, is the tax to be voided because supporters of the tax said

they dislike Big Oil or because those impacted by the tax contributed to losing

campaigns challenging legislators who later voted for the tax? Must courts decide




      10
         Tenney, like Bogan, was a legislative-immunity case. But Tenney gave as
the ultimate source for the proposition the early case of Fletcher v. Peck, 10 U.S.
87, 130 (1810), which considered a challenge to legislation predicated on the
improper motives of the enactors. And both Tenney, 341 U.S. at 377, and
O’Brien, 391 U.S. at 383, pointed to the cases collected by Justice Brandeis in
Arizona v. California, 283 U.S. 423, 455 (1930), to support the proposition that
“[i]nto the motives which induced members of Congress to enact the [statute],
this court may not inquire.”

                                        -59-
in cases such as this whether legislators were motivated to punish Planned

Parenthood’s speech and association, or were opposed to providing funding to an

organization that also provides abortion services, or were simply in favor of

family-planning services associated with full-service medical care? We think not.

We reject the notion that Planned Parenthood can challenge § 107(l) as an

unconstitutional condition solely on the ground that its passage was motivated by

a desire to penalize Planned Parenthood’s protected speech and association.

       We hold that Planned Parenthood’s First Amendment claim lacks merit.

III.   CONCLUSION

       We REVERSE and REMAND to the district court with instructions to

vacate its preliminary injunction and proceed consistently with this opinion.




                                        -60-
11-3235, 12-3178, & 13-3175,
Planned Parenthood of Kansas and Mid-Missouri v. Moser
LUCERO, J., dissenting.

       I dissent.

       Litigants and the public at large are entitled to receive decisions from our court

rooted in precedent and based on rigorous analysis of the parties’ submissions. Today’s

decision meets neither test. Instead, the majority conveniently defenestrates controlling

precedent and proceeds on substituted premises. This behavior is particularly unjust

because the very rule that the majority would scuttle was conceded by the parties as

controlling.

       This dissent proceeds in two parts. Part I addresses the case as presented by the

parties in their briefing before our court. It speaks to the issues brought to us by the

parties for our resolution and argued to our panel. Part II addresses the arguments of my

majority colleagues in support of the issues of their own irregular creation and about

which they sought additional briefing over my objection.

       In initial briefing, all parties acknowledged that Planned Parenthood possesses a

cause of action under the Supremacy Clause. The holdings of this court required such an

acknowledgement. In his opening brief, Moser cited Qwest Corp. v. City of Santa Fe,

380 F.3d 1258 (10th Cir. 2004), and correctly stated that the Tenth Circuit “has allowed

an equitable injunction action when a state law is alleged to conflict with federal law in

violation of the Supremacy Clause.” Moser predicted that “the Supreme Court will

abolish this equitable Supremacy Clause cause of action” in Douglas v. Independent

Living Center of Southern California, Inc., 132 S. Ct. 1204 (2012), which was pending at
the time his brief was submitted. This prediction proved inaccurate, and Moser advanced

no other argument on that issue. Moser thus conceded that our circuit jurisprudence

allows for a cause of action under the Supremacy Clause, and Planned Parenthood

understandably refrained from addressing this waived issue in its briefing.

       I ought not need remind my colleagues that a panel of this court lacks authority to

overrule the decisions of prior panels. United States v. Meyers, 200 F.3d 715, 720 (10th

Cir. 2000). This bedrock principle of stare decisis ensures that parties are treated

consistently and invites confidence in the judicial process. See Payne v. Tennessee, 501

U.S. 808, 827 (1991). It is “a basic self-governing principle within the Judicial Branch,

which is entrusted with the sensitive and difficult task of fashioning and preserving a

jurisprudential system that is not based upon ‘an arbitrary discretion.’” Patterson v.

McLean Credit Union, 491 U.S. 164, 172 (1989) (quoting The Federalist No. 78, at 490

(Alexander Hamilton) (H. Lodge ed., 1888)). The majority has elected to disregard these

principles—it is not our office to do so.

                                              I

                                             A

       In Qwest Corp., we held that “[a] party may bring a claim under the Supremacy

Clause that a local enactment is preempted even if the federal law at issue does not create

a private right of action.” 380 F.3d at 1266 (emphasis added). Qwest claimed that the

Federal Telecommunications Act of 1996 preempted several provisions of a Santa Fe

ordinance that established new procedures for telecommunications providers seeking to

access city-owned property. Qwest Corp., 380 F.3d at 1262. Pursuant to the ordinance,

                                             -2-
telecommunications providers were required to register with the city and obtain a lease

agreement to use city-owned rights-of-way. Id. To register, a telecommunications

provider had to pay a fee and provide information regarding its affiliates, the location of

existing facilities, the services provided by the company, and “such other information as

the city may reasonably require.” Id. To obtain a lease agreement, Qwest was required

to submit an application containing an appraisal, engineering plans, and “such other and

further information as may be required by the city.” Id. It would then have to pay a

rental price based on the appraisal, and would be required to install excess conduit

capacity equal to 100% of what the installer planned to use. Id.

       Qwest “sought to install” new telecommunications equipment on a city-owned

right-of-way, but after learning that the new ordinance would require a lease for that

project and “any use of the City’s rights-of-way,” the company withdrew its application

and filed suit in federal district court. Id. at 1262-63. Qwest claimed that various

provisions of the ordinance were preempted by 47 U.S.C. § 253, which provides that

“[n]o State or local statute or regulation, or other State or local legal requirement, may

prohibit or have the effect of prohibiting the ability of any entity to provide any interstate

or intrastate telecommunications service.” § 253(a). The statute further provides that if

the Federal Communications Commission (“FCC”) “determines that a State or local

government has permitted or imposed any statute, regulation, or legal requirement that

violates subsection (a) . . . the Commission shall preempt the enforcement of such statute,

regulation, or legal requirement to the extent necessary to correct such violation or

inconsistency.” § 253(d).

                                             -3-
       The panel in Qwest Corp. concluded that we had federal question jurisdiction

because “‘[a] plaintiff who seeks injunctive relief from state regulation, on the ground

that such regulation is pre-empted by a federal statute which, by virtue of the Supremacy

Clause of the Constitution, must prevail, thus presents a federal question which the

federal courts have jurisdiction under 28 U.S.C. § 1331 to resolve.’” Qwest Corp., 380

F.3d at 1264 (quoting Shaw v. Delta Airlines, Inc., 463 U.S. 85, 96 n.14 (1983)). We

noted that “a federal-law defense . . . anticipated in response to the complaint” does not

confer jurisdiction, but explained that “the issue of pre-emption is not an anticipated

defense, but is the basis for a federal claim in Qwest’s complaint in federal court.” Id. at

1264 n.1.

       Qwest Corp. considered whether the district court erred in concluding that § 253

did not evince congressional intent “to create a federal right to be free of local laws or

regulations that prohibit the provision of any telecommunications service” and thus “that

no action under [42 U.S.C.] § 1983 is available.” Qwest Corp., 380 F.3d at 1265. The

panel affirmed the district court’s conclusion, holding that the statute did “not reveal a

clear congressional intent to create an individual right.” Id. Instead, § 253(d) “calls on

the FCC to enforce 253(a).” Qwest Corp., 380 F.3d at 1265.

       Although we held that § 253 did not “create[] a right enforceable through 42

U.S.C. § 1983,” Qwest Corp., 380 F.3d at 1265, we nevertheless concluded that Qwest

could proceed on a cause of action directly under the Supremacy Clause:

       A federal statutory right or right of action is not required where a party
       seeks to enjoin the enforcement of a regulation on the grounds that the local
       ordinance is preempted by federal law. A party may bring a claim under

                                             -4-
       the Supremacy Clause that a local enactment is preempted even if the
       federal law at issue does not create a private right of action.

Id. at 1266 (citations and footnote omitted).

       On considering the merits of Qwest’s direct Supremacy Clause claims, we

affirmed the district court’s ruling that many of the ordinance’s provisions were

preempted by § 253. Although bare registration and lease requirements were not per se

“prohibitive” under § 253(a), Qwest Corp., 380 F.3d at 1269, it was determined that

several specific provisions were preempted, including the requirements that

telecommunications providers pay a rental price based on the value determined by a city-

approved appraiser, install double capacity when installing new conduit, and provide

various forms of information to the city as part of the registration process. Id. at 1270-71,

1274-75.

                                                B

       It having been acknowledged by the parties that the cause of action at issue was

firmly controlled by circuit precedent, our analysis should have proceeded directly to the

merits of Planned Parenthood’s Supremacy Clause claim. Remarkably, the majority did

not reach the merits. I would hold that Planned Parenthood possesses standing, has

established a likelihood of success on the merits of its claim, and is entitled to a

preliminary injunction.

       In Bond v. United States, 131 S. Ct. 2355 (2011), a criminal defendant argued that

Congress lacked constitutional authority to enact a federal statute that imposed criminal

penalties for chemical weapon use. The Court unanimously rejected the argument that


                                             -5-
Bond lacked standing because she asserted only the legal rights and interests of the states.

Id. at 2363. Instead, the Court held that a party “has a direct interest in objecting to laws

that upset the constitutional balance between the National Government and the States

when the enforcement of those laws causes injury that is concrete, particular, and

redressable.” Id. at 2364. Citing to a long list of Supreme Court cases in which

individual plaintiffs asserted constitutional challenges based on separation-of-powers and

checks-and-balances principles, the Court concluded that individual plaintiffs may by

analogy “challenge a law as enacted in contravention of constitutional principles of

federalism.” Id. at 2365. Bond had standing to raise the federalism issue because she

properly sought to vindicate her own interests and could “assert injury from

governmental action taken in excess of the authority that federalism defines.” Id. at

2363-64. Thus, the Supreme Court specifically rejected the argument, made by Moser in

this case, that an individual advancing a Supremacy Clause challenge asserts only the

interests of a government entity.

       As did Bond, Planned Parenthood seeks to vindicate its own interests in

contending that Section 107(l) “upset[s] the constitutional balance between the National

Government and States.” Bond, 131 S. Ct. at 2364. Thus, Planned Parenthood falls

within the ambit of plaintiffs defined by the Supreme Court as having standing so long as

it asserts a harm that is “concrete, particular, and redressable.” Id.; see also Summers v.

Earth Island Inst., 555 U.S. 488, 493 (2009).

       The district court determined that Planned Parenthood “has demonstrated

convincingly the existence of an injury which may be effectively addressed only by

                                             -6-
granting the injunction sought.” This finding is entitled to deference and is supported by

ample record evidence. Planned Parenthood alleges that Section 107(l) caused its

Wichita and Hays health centers to lose more than $330,000 in funding, will end their

eligibility for a low-cost drug-purchasing program, and will likely lead to declines in

staffing levels and the closure of the Hays health center. Thus, Planned Parenthood has

suffered concrete harm. These injuries are particular because the funding cuts apply only

to Planned Parenthood.1 Finally, the injuries would be redressed by an injunction barring

enforcement of Section 107(l).

       Moser cannot rely on Wilderness Society v. Kane County, 632 F.3d 1162 (10th

Cir. 2011) (en banc), for his contention that Planned Parenthood lacks prudential

standing. The Supreme Court’s decision in Bond expressly rejected the conclusion that a

party “does not assert a valid right to relief of its own,” Kane Cnty., 632 F.3d at 1170,

and thus lacks prudential standing if it asserts that a statute violates constitutional

principles of federalism. See Bond, 131 S. Ct. at 2363. Further, the plaintiff in Kane

County was a private environmental organization that, according to the en banc majority,

sought to assert the property rights of the federal government and “lack[ed] any

independent property rights of its own.” 632 F.3d at 1171. Planned Parenthood, in

contrast, has direct economic interests at stake in this dispute. It seeks to preserve a

crucial funding source, not hypothetical interests in the property rights of another.

       1
         The funding cuts also applied to the Dodge City Family Planning Clinic, which
was previously an intervenor in this case. Because the organization ceased operations
and is no longer seeking funding from the Kansas Department of Health and
Environment (“KDHE”), we dismissed Dodge City’s appeal as moot upon a joint
stipulation of the parties.
                                              -7-
                                               C

       Under our federal structure, “state law is nullified to the extent that it . . . stands as

an obstacle to the accomplishment and execution of the full purposes and objectives of

Congress.” Fidelity Fed. Sav. & Loan Ass’n v. de la Cuesta, 458 U.S. 141, 153 (1982)

(quotation omitted). This doctrine applies equally to federal regulations. Id. “[T]he

Federal Government, unless barred by some controlling constitutional prohibition, may

impose the terms and conditions upon which its money allotments to the States shall be

disbursed, and [] any state law or regulation inconsistent with such federal terms and

conditions is to that extent invalid.” Planned Parenthood Ass’n of Utah v. Dandoy, 810

F.2d 984, 988 (10th Cir. 1987) (quotation omitted).

       Title X establishes a broad eligibility standard for grantees, allowing “[a]ny public

or nonprofit private entity” to apply for Title X funds. 42 C.F.R. § 59.3. In addition,

federal law recognizes that organizations affiliated with abortion providers may

participate in Title X and requires only that Title X funds not “be used in programs where

abortion is a method of family planning.” 42 U.S.C. § 300a-6; see also Standards of

Compliance for Abortion-Related Services in Family Planning Services Projects, 65 Fed.

Reg. 41,270, 41,275-76 (July 3, 2000) (describing the separation Title X grantees must

maintain between Title X projects and abortion-related activities). By explicitly

establishing a broad eligibility standard, the federal government precluded participating

states from creating additional, narrower standards.

       When other circuits have examined state laws that impose heightened Title X

eligibility requirements, they have concluded that such provisions violate the Supremacy

                                              -8-
Clause. See Planned Parenthood of Hous. & Se. Tex. v. Sanchez, 403 F.3d 324, 337 (5th

Cir. 2005) (“[A] state eligibility standard that altogether excludes entities that might

otherwise be eligible for federal funds is invalid under the Supremacy Clause.”); Planned

Parenthood Fed. of Am. v. Heckler, 712 F.2d 650, 663 (D.C. Cir. 1983) (“Title X does

not provide, or suggest, that states are permitted to determine eligibility criteria for

participants in Title X programs.”); Valley Family Planning v. North Dakota, 661 F.2d

99, 101-02 (8th Cir. 1981) (“The conflict between Title X and [the state law at issue] is

clear.”).

       Section 107(l) is similarly inconsistent with the terms and conditions that

Congress and the Department of Health and Human Services (“HHS”) established in

allowing KDHE to receive Title X funding. Even without considering Section 107(l)’s

underlying purpose, the provision excludes an entire category of providers from

eligibility, contravening the federal command that “[a]ny public or nonprofit private

entity” may apply for Title X funds. 42 C.F.R. § 59.3. Section 107(l) directs Title X

funding to public entities and then, “if any moneys remain,” to non-public hospitals or

federally qualified health centers. 2011 Kan. Sess. Laws 2020. The provision does not

mention non-public facilities that solely provide family planning services, such as

Planned Parenthood, nor does it provide that, “if any moneys remain” after funds are

distributed to non-public hospitals or federally qualified health centers, Title X funding

may be distributed to non-public family planning providers. Implicitly, such entities are

barred from applying for funds, contrary to 42 C.F.R. § 59.3.



                                              -9-
       Record review fully supports the district court’s conclusion that Section 107(l)

“effectively block[s]” and “exclu[des]” Planned Parenthood from participating in

KDHE’s Title X program. Immediately after Section 107(l) was passed, Planned

Parenthood was informed that “[d]ue to recent legislative action funding is no longer

available for your organization.” KDHE sought alternative subgrantees only after

terminating Planned Parenthood’s contracts. Further, KDHE acknowledges that at the

time the preliminary injunction was granted, it had not contracted with or located

sufficient facilities to replace Planned Parenthood’s service offerings. There is no record

evidence that Planned Parenthood’s funding was terminated because KDHE ran out of

Title X funding; rather, KDHE had imposed a policy of wholly excluding Planned

Parenthood from obtaining Title X funds. We thus are not presented with the

hypothetical scenario under which an agency merely prioritizes funding pursuant to a

blanket rule. Both the text and the actual implementation of Section 107(l) demonstrate a

categorical bar on eligibility for Planned Parenthood.

       If Section 107(l)’s purpose is considered—and it is not necessary to do so before

concluding the provision is preempted—the conflict is even clearer. The district court

found that Section 107(l) was intended to “single out, punish, and exclude Planned

Parenthood, the only historical Kansas subgrantee which provides or associates with a

provider of abortion services, from receiving any further Title X subgrants.” In making

this factual finding—entitled to our deference—the district court relied on extensive

direct evidence from Section 107(l)’s legislative history. Representative Lance Kinzer,

who offered the provision as an amendment to a Kansas appropriations bill, stated in an

                                           -10-
accompanying press release that the amendment “took all state funding away from

Planned Parenthood to ensure that state dollars are not used for abortion services.”

Substantially the same press release was circulated by the Communications Director for

the Speaker of the Kansas House. Representative Kinzer also stated online: “Delighted

to announce that the KS House just approved my floor amendment to deny Title X

funding to Planned Parenthood . . . a great victory on the first pro-life floor vote of the

session.” A news story on the amendment quoted Governor Sam Brownback’s

spokeswoman as stating, “Gov. Brownback . . . opposes taxpayer subsidy of abortions.”

Planned Parenthood submitted an affidavit averring that on the floor of the Kansas

legislature, the amendment was repeatedly referred to as the “Planned Parenthood”

provision. According to Planned Parenthood, Section 107(l) was part of a nationwide

effort to prohibit entities affiliated with abortion providers from receiving government

funds unconnected to abortion services.

       But Title X’s enacting statute and implementing regulations recognize that entities

affiliated with abortion providers may participate in Title X projects as long as Title X

funds are not used for abortion programs. 42 U.S.C. § 300a-6; 65 Fed. Reg. at 41,275-76.

Section 107(l)’s goal of disqualifying organizations associated with abortion providers

contravenes federal regulations that allow abortion providers and their affiliates to

participate in Title X.

       Regardless of the statute’s purpose, the text of Section 107(l) and KDHE’s manner

of implementing it violate 42 C.F.R. § 59.3 by categorically barring entities such as

Planned Parenthood from Title X funding. The district court’s conclusion that Planned

                                             -11-
Parenthood is likely to prevail on its Supremacy Clause claim is thus fully supported by

the record and applicable law, and should be affirmed.2

                                              D

       Planned Parenthood has demonstrated that the remaining preliminary injunction

factors weigh in its favor. See Winter v. Nat’l Res. Def. Council, 555 U.S. 7, 20 (2008)

(describing the standard for a preliminary injunction).

       The record firmly supports the district court’s conclusion that Planned Parenthood

“is likely to suffer irreparable harm in the absence of preliminary relief.” Id. Plaintiff

attests that Section 107(l) caused its health centers to lose more than $330,000 in funding,

will end their health centers’ eligibility for a low-cost drug purchasing program, and will

likely lead to declines in staffing levels and the closure of one center. Furthermore,



       2
         Because I would affirm the district court’s conclusion as to Planned Parenthood’s
Supremacy Clause claim, I would not reach its First Amendment claim. Nonetheless, I
must voice my disagreement with the majority’s analysis of that issue. The majority
argues that Planned Parenthood’s claim does not fall within an asserted category of cases,
“those in which a person is penalized by discretionary executive action for prior speech
or association.” (Majority Op. 52.) In doing so, the majority ignores the undisputed
evidence of executive action noted above: KDHE pulled funding from Planned
Parenthood without having contracted with alternative providers.
        The majority bases its holding entirely on the putative absence of executive action
and the inability of courts to overturn legislative enactments due to improper motives. It
therefore does not reach plaintiff’s argument that Section 107(l) is unconstitutional
because it disqualifies Planned Parenthood from receiving government funds on the basis
of its constitutionally protected activity. KDHE has in practice barred Planned
Parenthood from Title X funding based on its affiliation with abortion. As the Supreme
Court recently held, legislatures may “define the limits of [a] government spending
program” but may not “leverage funding to regulate speech outside the contours of the
program itself.” Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l, Inc., 133 S. Ct.
2321, 2328 (2013).

                                            -12-
Planned Parenthood cannot apply directly to HHS for Title X funding until the next

project period begins in 2015. See, e.g., 42 C.F.R. § 59.8(a).

       I also agree with the district court’s conclusion that “the balance of equities tips in

[Planned Parenthood’s] favor.” Winter, 555 U.S. at 20. The harm to Planned Parenthood

outweighs any harm to Moser. As discussed above, the harm to Planned Parenthood is

severe. In comparison, the only harm to Moser is that the state will no longer be able to

implement its unconstitutional eligibility requirement. Despite Moser’s protests, the

Eleventh Amendment does not preclude federal courts from enjoining an ongoing

violation of federal law. Ex parte Young, 209 U.S. 123, 159-60 (1908); Muscogee

Nation v. Okla. Tax Comm’n, 611 F.3d 1222, 1232 (10th Cir. 2010). Further, the district

court’s order does not harm KDHE revenues because the funding in question is federal

money already intended for Planned Parenthood. An injunction merely reestablishes the

status quo ante prior to passage of Section 107(l).

       Finally, I would also affirm the district court’s conclusion that an injunction is “in

the public interest.” Winter, 555 U.S. at 20. Title X plays a key role in ensuring that

low-income women and families have access to family planning services. For decades,

two Planned Parenthood facilities in Kansas have relied on Title X funds to carry out this

mission. Reversal of the district court’s injunction will have immediate consequences for

the well-being of the women and families that rely on these centers. Without injunctive

relief, Planned Parenthood clients will see their cost of service increase and the range of

available services decrease. It is questionable that the replacement facilities Moser has

cobbled together can meet community needs to the same degree. For example, KDHE’s

                                             -13-
2011 continuation grant application states that the alternative provider in Sedgwick

County has no weekend hours and does not provide all the services available at Planned

Parenthood facilities. As Title X itself indicates, the public has a strong interest in

delivering family planning services to vulnerable populations.

                                              II

                                              A

       Instead of undertaking the foregoing analysis, the majority sua sponte announced

its skepticism that precedent acknowledged as controlling by all litigants was actually

controlling. Over my objections, my colleagues then sought supplemental briefing on

two issues not discussed in any of the initial briefs: (1) Whether the Administrative

Procedure Act (“APA”), 5 U.S.C. §§ 701-06, provides an alternate and exclusive remedy

to Planned Parenthood; and (2) whether the precedents of this court require recognition of

a cause of action under the Supremacy Clause to enforce Spending Clause legislation.

(Sept. 19, 2013 Order 1-2.) It also asked whether those two issues were waived, and if

so, whether the waiver stripped this court of jurisdiction. (Id. at 2.)

       The majority is correct that waiver is not a jurisdictional bar. But that does not

mean it is something to be tossed aside when two judges “are comfortable with the

propriety” of addressing a given issue. (Majority Op. 48.) “The premise of our

adversarial system is that appellate courts do not sit as self-directed boards of legal

inquiry and research, but essentially as arbiters of legal questions presented and argued

by the parties before them.” NASA v. Nelson, 131 S. Ct. 746, 756 n.10 (2011) (quotation

omitted). “Courts do not, or should not, sally forth each day looking for wrongs to right.

                                             -14-
We wait for cases to come to us, and when they do we normally decide only questions

presented by the parties.” Greenlaw v. United States, 554 U.S. 237, 244 (2008)

(alteration and quotation omitted). The waiver rule “is more than just a prudential rule of

convenience; its observance, at least in the vast majority of cases, distinguishes our

adversary system of justice from the inquisitorial one.” United States v. Burke, 504 U.S.

229, 246 (1992) (Scalia, J., concurring).

       The majority pretends that the waiver issue is debatable, stating that Planned

Parenthood “may be correct” that the issue was waived. (Majority Op. 46.) It is well

established that we do not address arguments an appellant does not assert in its opening

brief. See Gaines-Tabb v. ICI Explosives, USA, Inc., 160 F.3d 613, 624 (10th Cir.

1998); see also Fed. R. App. P. 28. We “will not craft a party’s arguments for him.”

Perry v. Woodward, 199 F.3d 1126, 1141 n.13 (10th Cir. 1999).

       This rule carries particular force in the context of affirmative waiver. “A waived

claim or defense is one that a party has knowingly and intelligently relinquished; a

forfeited plea is one that a party has merely failed to preserve.” Wood v. Milyard, 132 S.

Ct. 1826, 1832 n.4 (2012). As the Supreme Court noted in Milyard, consideration of a

forfeited issue may be proper in exceptional cases, id. at 1833, but “[a] court is not at

liberty . . . to bypass, override, or excuse a [party’s] deliberate waiver of a[n affirmative]

defense,” id. at 1830. Although jurisdiction may not be created by a party’s concession,

In re Am. Ready Mix, Inc., 14 F.3d 1497, 1499 (10th Cir. 1994), a private cause of action

issue is “not of the jurisdictional sort which the Court raises on its own motion,” Lake

Country Estates, Inc. v. Tahoe Reg’l Planning Agency, 440 U.S. 391, 398 (1979)

                                             -15-
(quotation omitted). When a defendant does not contest the existence of a cause of

action, the proper course is to “assume[], without deciding, that the suit could properly be

brought.” Id. (quotation omitted); see also Morris v. Okla. Dep’t of Human Servs., 685

F.3d 925, 932 n.4 (10th Cir. 2012) (“[W]e will assume without deciding that a cause of

action exists when defendants fail to dispute it.”).3

       The majority provides neither a reasoned basis for its rejection of Moser’s

concession nor a compelling justification for its argument of the cause of action issue on

his behalf. “Today’s decision is backwards in many senses. It elevates the majority’s

agenda over the litigants’ submissions . . . .” Citizens United v. FEC, 558 U.S. 310, 478

(2010) (Stevens, J., dissenting). Milyard strongly suggests that a court has no discretion

to raise sua sponte an affirmative defense that has been waived, rather than forfeited. See

132 S. Ct. at 1830, 1832 n.4. But even assuming this rule is not absolute, a court should

depart from regular practice only in “exceptional cases.” Id. at 1833. What makes this

case so exceptional that affirmative waiver should be ignored? The majority is wholly

silent, citing only its comfort with employing an extraordinary and irregular procedure.

The public will fill that silence with its own explanations. See Morgane v. States Marine

Lines, Inc., 398 U.S. 375, 403 (1970) (describing “necessity of maintaining public faith

in the judiciary as a source of impersonal and reasoned judgments”).

       3
         As the majority observes, courts must occasionally decide antecedent issues that
the parties may not have briefed in order to resolve the dispute between the litigants.
(Majority Op. 47); see also U.S. Nat’l Bank v. Indep. Ins. Agents of Am., Inc., 508 U.S.
439, 447 (1993). Because the lack of a cause of action is an affirmative defense, the
plaintiff is not required to negate this defense unless properly preserved, and thus the
issue is not antecedent in the appropriate sense. See Lake Country Estates, Inc., 440 U.S.
at 398.
                                             -16-
                                              B

       The majority’s call for additional briefing constitutes nothing more and nothing

less than an attempt to find a way to distinguish Qwest Corp. Having received briefing

on the subject, my colleagues invent and apply a four-part test for determining whether

the Supremacy Clause “authorize[s] an injunction against . . . state action.” (Majority

Op. 3.) Two elements of the four-part test rely on precisely the sort of statutory

interpretation that this court has already held is not part of the analysis for determining

whether a plaintiff may proceed directly under the Supremacy Clause. The fourth

element, the absence of an “enforcement action,” (id. at 4), was also present in Qwest

Corp. and thus fails to distinguish our controlling circuit precedent. This leaves the

majority’s third element, Title X’s status as Spending Clause legislation. Numerous

courts have already held this to be a distinction without a difference. The majority also

argues (though it does not incorporate the claim into its assumedly controlling four-part

standard) that potential APA remedies are a relevant consideration. (Majority Op. 20-

22.) But this asserted dissimilarity also fails because the plaintiffs in Qwest Corp., as in

this case, might have sought a remedy by suing a federal agency under the APA.

                                              1

       The majority repeatedly asserts that “[w]hether to recognize a private cause of

action for injunctive relief [under the Supremacy Clause] is a matter of statutory

interpretation.” (Majority Op. 15; see also id. at 3, 17.) Specifically, the majority says

that to determine whether a cause of action exists under the Supremacy Clause we must

decide whether “the statute . . . specifically authorize[s] injunctive relief” and whether

                                             -17-
“the statute . . . create[s] an individual right.” (Id. at 3.) This newly conjured test cannot

be squared with our precedent. After evaluating the federal statute at issue in Qwest

Corp., we concluded that “nothing in the text or structure of [the statute at issue] indicates

an intention to create a private right.” 380 F.3d at 1265. Nonetheless, we unanimously

held that the plaintiff had a cause of action under the Supremacy Clause. Id. at 1266.

       Engaging in an unwarranted exercise in statutory interpretation, the majority

announces that plaintiff lacks a cause of action under the Supremacy Clause because

“Title X does not ‘display[] an intent to create’ the remedy sought by Planned

Parenthood.” (Majority Op. 27 (quoting Alexander v. Sandoval, 532 U.S. 275, 286

(2001)).) Thus the majority imports wholesale the test for determining whether a

statutory right of action exists in concluding that Planned Parenthood may not proceed

directly under the Supremacy Clause. See Alexander, 532 U.S. at 286 (“The judicial task

is to interpret the statute Congress has passed to determine whether it displays an intent to

create not just a private right but also a private remedy.”); see also Gonzaga Univ. v. Doe,

536 U.S. 273, 290 (2002) (“[I]f Congress wishes to create new rights enforceable under

§ 1983, it must do so in clear and unambiguous terms—no less and no more than what is

required for Congress to create new rights enforceable under an implied private right of

action.”).

       As we explained in Qwest Corp., however, an implied right of action is distinct

from a Supremacy Clause claim: “‘A claim under the Supremacy Clause simply asserts

that a federal statute has taken away local authority to regulate a certain activity. In

contrast, an implied private right of action is a means of enforcing the substantive

                                             -18-
provisions of a federal law.’” 380 F.3d at 1266 (quoting Western Air Lines, Inc. v. Port

Auth., 817 F.2d 222, 225 (2d Cir. 1987)). The test to determine whether one may assert a

claim directly under the Supremacy Clause cannot be identical to the statutory cause of

action analysis because we expressly held in Qwest Corp. that “[a] party may bring a

claim under the Supremacy Clause that a local enactment is preempted even if the federal

law at issue does not create a private right of action.” Id. If, through its legerdemain, the

majority intended to place some daylight between the Supremacy Clause analysis and the

analysis for an implied private right of action under a statute, it has not done so. To the

contrary, and in obvious contravention of our prior precedent, there are no cases under

the first two prongs of the majority’s novel test in which a plaintiff could lack a statutory

cause of action but possess one under the Supremacy Clause.

                                                2

          My colleagues also argue that Qwest Corp. is distinguishable because Planned

Parenthood, unlike Qwest, cannot be subjected to an “enforcement action” arising from

§ 107(l). (Majority Op. 42-43.) This assertion misconstrues Qwest Corp., which

enjoined several provisions of a local ordinance that could not have led to an enforcement

action.

          The majority cites the dispositional section of the district court opinion we

reviewed in Qwest Corp., (Majority Op. 42 n.5), which enjoined Santa Fe and its agents

“from taking any enforcement action against Qwest Corporation” based on certain

preempted provisions. Qwest Corp. v. City of Santa Fe, 224 F. Supp. 2d. 1305, 1332



                                               -19-
(D.N.M. 2002). From this, I am led to presume that the majority would hold that if a

district court enjoins enforcement, enforcement is possible under the statute.

       But that cannot be right, because the district court opinion on review today orders

the following: “[T]he defendants are hereby enjoined from any further enforcement or

reliance on Section 107(l) of H.B. 2014 . . . .” Planned Parenthood of Kan. & Mid-Mo. v.

Brownback, 799 F. Supp. 2d 1218, 1236 (D. Kan. 2011). Perhaps the majority believes

that the Qwest Corp. district court’s use of the word “action,” compared to the district

court order on review today that merely enjoins “enforcement,” works some magic that

makes the two statutes distinguishable—one subject to mere enforcement and

unchallengeable in a Supremacy Clause suit, the other presenting the possibility of

“enforcement actions” and giving rise to potential Supremacy Clause litigation. That

would be an odd approach, given that we can make our own determination without

resorting to semantic trivialities.

       A review of the provisions enjoined in Qwest Corp. makes it pellucid that an

enforcement action would have been logically impossible. The majority incorrectly

suggests that Qwest only wanted to “continue[] to provide telecommunications service as

it had in the past.” (Majority Op. 43 n.5.) Instead, the dispute began when “Qwest

sought to install a four-by-four foot utility cabinet on a twelve-by-eighteen foot concrete

pad on a city-owned right-of-way.” Qwest Corp., 380 F.3d at 1262. Much of the

challenge centered on the requirements for installing new telecommunications facilities.

By the majority’s own definition of the term—“an adversary legal proceeding to impose



                                            -20-
a sanction for engaging in prohibited activity,” (Majority Op. 43-44)—Qwest was not and

could not have been subjected to an “enforcement action” for violating these provisions.

       For example, the requirement that telecommunications companies provide the city

certain information as part of the registration process logically cannot be “enforced”

against the company in an “action” as the majority uses those terms. And Qwest could

not possibly raise preemption of the information requirement as a “defense” in an

“enforcement action.” If Qwest failed to provide the information, it simply would be

ineligible for a government benefit: the opportunity to lease city-owned rights-of-way.

The majority fails to provide a scenario under which the city might “enforce” this

provision in a coercive action that would place Qwest in a posture to raise preemption as

a defense. Similarly, the Qwest Corp. panel barred enforcement of the double-conduit

and appraisal-based rental requirements in the Santa Fe ordinance. 380 F.3d at 1271.

The opinion says nothing about a potential adversarial enforcement action of these

forward-looking provisions, instead holding that “the substantial increase in costs

imposed by the excess conduit requirements and the appraisal-based rent . . . in

themselves renders those provisions prohibitive.” Id. (emphasis added). If a “substantial

increase in costs” is by itself sufficient for a private party to assert a successful cause of

action under the Supremacy Clause, the possibility of an enforcement action cannot be an

essential part of the claim.

       My colleagues do not explain how the preempted provisions of the Santa Fe

ordinance could have given rise to an enforcement action, or how preemption of the

ordinance could possibly serve as a defense. If Qwest violated the terms of its license by

                                              -21-
failing to provide service, it might have raised some sort of impossibility defense in

regulatory proceedings to explain its failure, but a claim that the ordinance is preempted

would not invalidate the regulations requiring service provision. Alternatively, I suppose,

Qwest could have simply trespassed on a city-owned right-of-way and installed new

telecommunications facilities. In that circumstance, it may have been subject to sanctions

for trespass, but again, the challenged provisions of the ordinance would not form the

basis of such an action and a claim that the ordinance was preempted could not possibly

serve as a defense.4

       The Qwest Corp. opinion specifically held that “the issue of pre-emption is not an

anticipated defense, but is the basis for a federal claim in Qwest’s complaint in federal

court.” 380 F.3d at 1264 n.1 (emphasis added). We affirmatively held, with respect to a

local ordinance that merely imposed conditions on the receipt of government benefits,

that “[a] party may bring a claim under the Supremacy Clause that a local enactment is

preempted even if the federal law at issue does not create a private right of action.” Id. at

1266. This holding was joined in relevant part by the author of today’s majority opinion.

       Because Qwest was not defending against a threatened enforcement action, its

position is precisely analogous to that of Planned Parenthood. The majority says


       4
        If this is the basis of the majority’s hypothetical enforcement action, it must be
presumed that Planned Parenthood could similarly attempt to “continue[] to provide
[family planning] service as it had in the past,” (Majority Op. 43 n.5), by stealing state
funds to replace its prior Title X funding. But as far as I can tell, the subsequent criminal
proceeding would qualify as an “enforcement action” under the majority’s reasoning. I
would hope that important rules of constitutional law are not based on such fanciful
hypotheticals, but I must highlight the exact congruence between the plaintiffs in this
case and Qwest Corp.
                                            -22-
“Qwest’s concern was that Santa Fe was effectively prohibiting it from providing

telecommunications service.” (Majority Op. 43 n.5.) Similarly, Planned Parenthood’s

concern in this case is that Kansas is effectively “prevent[ing] Planned Parenthood from

participating in the Title X program.” (Planned Parenthood Answer Br. 2.) In both

cases, a local law denies what federal law guarantees. Both plaintiffs sought to access

government benefits but were thwarted by a law that conflicts with a federal statute.

Both advanced a cause of action directly under the Supremacy Clause to redress their

grievances. Both requested an order enjoining enforcement of the allegedly preempted

law: Qwest sought “an injunction to prevent the enforcement” of Santa Fe’s ordinance,

Qwest Corp., 380 F.3d at 1262, and Planned Parenthood similarly seeks an injunction “to

prevent the application and enforcement” of Section 107(l), Planned Parenthood of Kan.

& Mid.-Mo., 799 F. Supp. 2d at 1220; see also 2011 Kan. Sess. Laws 2020; 30 Kan. Reg.

793 (June 9, 2011). “Enforcement” in this context simply means conditioning benefits in

a manner inconsistent with federal law.

       Moreover, Qwest Corp. was not this court’s final word as to the existence of a

Supremacy Clause cause of action. In Chamber of Commerce of the United States v.

Edmondson, 594 F.3d 742 (10th Cir. 2010), this court held that the plaintiffs “have a

valid right of action under the Supremacy Clause” to challenge three provisions of

Oklahoma law as preempted. 594 F.3d at 756 n.13. Because our circuit precedent in

Qwest Corp. was controlling on this point, we declined to reach one defendant’s

argument that the plaintiffs lacked a cause of action under § 1983. Edmondson, 594 F.3d

at 756 n.13. As in Qwest Corp., the plaintiffs challenged a statutory provision that

                                           -23-
simply limited access to government benefits and thus could not logically lead to an

“enforcement action.” The panel majority concluded that plaintiffs possessed a cause of

action directly under the Supremacy Clause to challenge Okla. Stat. tit. 25, § 1313(B)(2),

which prospectively barred public employers from entering into contracts with entities

that refused to use a certain employment verification system. Edmondson, 594 F.3d at

753-54, 756 n.13. The Supremacy Clause could not logically be used as a defense to this

provision in a hypothetical “enforcement action” because such an enforcement action

could never occur. The statute at issue in Edmondson merely directed state officials not

to sign certain contracts.5

       The majority’s claim that Planned Parenthood, unlike Qwest and the Chamber of

Commerce, faces no “enforcement action” arises from a semantic contortion. I am

reminded of Justice John Marshall Harlan’s guidance: “[A]lmost any word or phrase

may be rendered vague and ambiguous by dissection with a semantic scalpel. I do not,

however, consider it a provident use of the time of this Court to coach what amounts to

little more than verbal calisthenics.” Cole v. Richardson, 397 U.S. 238, 240 (1970)

(Harlan, J., concurring in the result). The majority’s attempt to distinguish away a

binding precedent on the basis of one district court’s single use of the phrase

       5
         Because the majority places great weight on the use of the phrase “enforcement
action” in the district court order enjoining parts of the ordinance at issue in Qwest Corp.,
I note that the district court on review in Edmondson did not use the word “enforcement
action” to describe its injunction. Instead, much like the district court order on review
before us, it simply used a form of the verb “enforce”: “Because of . . . the irreparable
harm Plaintiffs will suffer if an unconstitutional Act is enforced, the Court finds
Plaintiffs’ Motion for Preliminary Injunction . . . should be and is GRANTED.”
Chamber of Commerce of the U.S. v. Henry, No. CIV-08-109-C, 2008 WL 2329164, at
*8 (W.D. Okla. June 4, 2008) (unpublished).
                                            -24-
“enforcement action” constitutes precisely the sort of verbal calisthenics that Justice

Harlan warned against.

                                              3

       Having failed to distinguish Qwest Corp. on three of the elements identified in its

novel test, the majority suggests that our circuit has not found that a Supremacy Clause

cause of action exists if the “federal law [at issue] is Spending Clause legislation.”

(Majority Op. 28.) The Supreme Court has stated that “legislation enacted pursuant to

the spending power is much in the nature of a contract.” Pennhurst State Sch. & Hosp. v.

Halderman, 451 U.S. 1, 17 (1981) (“Pennhurst I”). Therefore, says the majority, we

should look to the legislation to determine which remedies are available, because

“[s]tates, being political animals, likely prefer placing enforcement power exclusively

with a federal agency” and “[w]e should not impose on the States the burden of private

suits unless the Spending Clause legislation ‘unambiguously’ so requires.” (Majority Op.

23.) My colleagues fail to explain why state preferences ought to be treated more

deferentially than the Constitution’s explicit statement that “[t]his Constitution, and the

Laws of the United States which shall be made in Pursuance thereof . . . shall be the

supreme Law of the Land . . . any Thing in the Constitution or Laws of any State to the

Contrary notwithstanding.” U.S. Const. art. VI, cl. 2. In any event, a state should be well

aware “of what its burdens are before it accepts the federal funds and assumes the

concomitant responsibilities,” (Majority Op. 22), given that the clear text of the

Supremacy Clause informs the states that they are obligated to follow federal law.



                                            -25-
Today’s majority opinion makes it less clear to the states what their burdens are by

introducing confusion into what was once clear and unambiguous circuit precedent.

       Four circuits have considered the argument that Spending Clause legislation is

fundamentally different from other legislation for Supremacy Clause purposes. None

found any merit in the argument. My colleagues do not even acknowledge, much less

attempt to distinguish, the countervailing positions of the Fourth, Fifth, Sixth, and Eighth

Circuits in choosing to create a deliberate circuit split.

       In Westside Mothers v. Haveman, 289 F.3d 852 (6th Cir. 2002), the Sixth Circuit

rejected a district court opinion stating “that Medicaid was only a contract between a state

and the federal government, that spending-power programs such as Medicaid were not

supreme law of the land, . . . [and] that in this case Ex parte Young was unavailable.”

Westside Mothers, 289 F.3d at 857. The district court had relied on the same language

from Pennhurst I that undergirds the majority opinion. Westside Mothers v. Haveman,

133 F. Supp. 2d 549, 557 (E.D. Mich. 2001). The Sixth Circuit explained that the

Supreme Court “is using the term ‘contract’ metaphorically, to illuminate certain aspects

of the relationship formed between a state and the federal government in a program such

as Medicaid.” Westside Mothers, 289 F.3d at 858. The Supreme Court, it added, had

already explicitly rejected a Medicaid-as-contract theory, holding that “‘unlike normal

contractual undertakings, federal grant programs originate in and remain governed by

statutory provisions expressing the judgment of Congress concerning desirable public

policy.’” Id. (quoting Bennett v. Ky. Dep’t of Educ., 470 U.S. 656, 669 (1985)). It went

on to review several Supreme Court decisions striking down state enactments as

                                              -26-
inconsistent with Spending Clause legislation. Id. at 860 (citing Dalton v. Little Rock

Family Planning Servs., 516 U.S. 474, 477-78 (1996); Lawrence Cnty. v. Lead-

Deadwood Sch. Dist. No. 40-1, 469 U.S. 256, 269-70 (1985)). Finally, the court ruled

that because “spending clause enactments are supreme law of the land, they may be the

basis for an Ex parte Young action.” Westside Mothers, 289 F.3d at 861.

       The Fifth Circuit adopted the Sixth Circuit’s Westside Mothers reasoning in

Frazar v. Gilbert, 300 F.3d 530 (5th Cir. 2002), rev’d on other grounds sub nom. Frew ex

rel. Frew v. Hawkins, 540 U.S. 431 (2004). The state of Texas urged the court to adopt

the reasoning of the district court in Westside Mothers and recognize a “Spending Clause

exception to the Ex Parte Young exception to the Eleventh Amendment.” Frazar, 300

F.3d at 550 (quotation omitted). The Fifth Circuit easily rejected this invitation to depart

from settled practice, explaining that, “[f]or purposes of the Supremacy Clause and Ex

Parte Young, the mandates set out in [the] Medicaid statute are more than contractual;

they are federal law.” Frazar, 300 F.3d at 550.

       In Missouri Child Care Ass’n v. Cross, 294 F.3d 1034 (8th Cir. 2002), the court

described as an “unusual assertion” state officials’ argument “that Ex parte Young does

not apply” to claims based on Spending Clause legislation because such legislation is

“not part of the supreme law of the land under the Supremacy Clause.” 294 F.3d at 1040.

The court roundly rejected the argument that Spending Clause legislation “amounts to

nothing more under the Constitution than a contract to be interpreted under ordinary

contract principles,” holding that the defendants’ contention was based on a

“misinterpret[ation of] language from the Supreme Court's opinions in Pennhurst [I] and

                                            -27-
Blessing [v. Freestone, 520 U.S. 329 (1997)].” Mo. Childcare Ass’n, 294 F.3d at 1040.

Citing Westside Mothers, the Eighth Circuit declined to “make the logical leap . . . from

describing such programs as ‘like contracts’ to treating such programs ‘as nothing more

than contracts.’ Like the Sixth Circuit, we refuse to make that leap, as it is unsupported

by the applicable case law.” Mo. Childcare Ass’n, 294 F.3d at 1041.

       Finally, in Antrican v. Odom, 290 F.3d 178 (4th Cir. 2002), the court rejected the

defendants’ argument that “Spending Clause legislation[] is not supreme law and

therefore does not fall within Ex Parte Young’s defining purpose, which is to give life to

the Supremacy Clause.” 290 F.3d at 188 (quotations omitted). The defendants’ “novel

position,” the court concluded, is “at odds with existing, binding precedent.” Id. “[T]he

Supreme Court has treated the Medicaid Act as ‘supreme’ law and has invalidated

conflicting State law under the Supremacy Clause.” Id. (citing Dalton, 516 U.S. at 478).

       Today’s majority might respond that these cases are distinguishable because they

were brought under statutes enforceable utilizing § 1983.6 But merely pointing out a

difference in procedural posture does not overcome the majority opinion’s failure to


       6
         The majority repeatedly chastises both Planned Parenthood and this dissent for
citing cases that deal with § 1983, private statutory rights of action, the Eleventh
Amendment, and jurisdictional issues. (Majority Op. 34-38.) My colleagues refuse to
follow our Supremacy Clause jurisprudence from Qwest Corp. and Edmondson, and they
summarily reject in a single footnote the well-reasoned decisions on point from a
majority of other circuits, (Majority Op. 44 n.7), electing instead to spin from whole cloth
a new test never endorsed by another court. I am therefore forced to look to analogous
precedent for “general expressions” of the law. (Majority Op. 44 (citing Cohens v.
Virginia, 19 U.S. (6 Wheat.) 264, 399 (1821)).) Moreover, because the majority’s test
imports techniques of statutory interpretation that courts have previously used to
determine whether a statute itself or § 1983 provides a private right of action, it is entirely
appropriate to rely on such cases in assessing my colleagues’ reasoning.
                                             -28-
explain why Spending Clause legislation is somehow less supreme than legislation

passed pursuant to other constitutional clauses. And although the majority does not take

the clearly erroneous position that Spending Clause legislation is not the law of the land,

its attempt to limit the Supremacy Clause has the same effect.

       The majority’s sole support for its extreme proposition is its citation to dicta in

Pennhurst I. In addition to the foregoing circuit court holdings, the Supreme Court itself

has cautioned against over-reading the Pennhurst I analogy, noting that it “do[es] not

imply, for example, that suits under Spending Clause legislation are suits in contract, or

that contract-law principles apply to all issues that they raise.” Barnes v. Gorman, 536

U.S. 181, 188 n.2 (2002). Rather than looking to the well-reasoned decisions of other

courts, the majority rests on policy arguments in favor of uniformity. I note that judicial

decisions provide such uniformity when judges faithfully observe precedent, and that

today’s opinion creates disuniformity by placing our circuit in direct conflict with several

others that have considered similar issues, as well as with our own cases.

       Moreover, the majority’s contention that states have not consented to suits to

enjoin ongoing violations of federal law is a dramatic and unwarranted expansion of the

principles announced in Pennhurst I. (See Majority Op. 22-23.) In that case, the Court

noted that the $1.6 million grant provided under the Spending Clause legislation at issue

was “woefully inadequate to meet the enormous financial burden” of the alleged

conditions attached to that grant. Pennhurst I, 451 U.S. at 24. Planned Parenthood does

not seek damages, nor does it attempt to impose costs on the state in excess of the funds



                                            -29-
provided by the federal government. It merely argues that KDHE should be enjoined

from prospectively violating federal law by misdirecting federal funds.

       The Court has stressed the unanticipated financial liability rationale as

fundamental to its Spending Clause jurisprudence. With respect to “legislation enacted

pursuant to Congress’ authority under the Spending Clause . . . private damages actions

are available only where recipients of federal funding had adequate notice that they could

be liable for the conduct at issue.” Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629,

640 (1999) (emphasis added). Similarly, after acknowledging an implied injunctive or

equitable remedy for Title IX violations, the Court in Gebser v. Lago Vista Independent

School District, 524 U.S. 274 (1998), noted the need to “examine closely the propriety of

private actions holding the recipient liable in monetary damages for noncompliance with

[a Spending Clause] condition,” and held that its “central concern in that regard is with

ensuring that the receiving entity of federal funds has notice that it will be liable for a

monetary award.” Id. at 287 (quotation and alteration omitted).

       In light of these cases, I am baffled by the following assertion by the majority:

“Presumably the Qwest court would not have thought it untoward to consider whether to

distinguish Spending Clause legislation from other legislation with regard to whether it

created a cause of action for damages. The same should be true for a cause of action for

injunctive relief.” (Majority Op. 42.) In the context of Spending Clause legislation, the

Supreme Court has clearly explained that unanticipated financial liability through private

damages actions is paramount in determining whether a state may be sued. The

possibility of injunctive relief does not implicate the same concerns. Immediately after

                                             -30-
the text quoted by the majority, (Majority Op. 22-23), the Pennhurst I decision explains,

“in return for federal funds, the States agree to comply with federally imposed

conditions.” 451 U.S. at 17. And under traditional equitable principles, “[a]n injunction

to prevent [a state official] from doing that which he has no legal right to do is not an

interference with the discretion of an officer.” Ex parte Young, 209 U.S. at 159.

                                              4

       The majority also suggests that the potential availability of a remedy under the

APA should make us reluctant to consider a Supremacy Clause challenge. (Majority Op.

20-21.) This is, to put it mildly, an invented claim that finds no support in precedent or

practice. The majority cites Gonzaga, 536 U.S. at 290, for the proposition that “[t]he

advantages of . . . centralized, expert administration do not appear to be controversial and

would be obvious to Congress.” (Majority Op. 21.)

       If the availability of APA review were a relevant factor in determining whether a

cause of action under the Supremacy Clause exists, Qwest Corp. itself would have been

decided differently. In that case, Qwest argued that the Federal Telecommunications Act,

specifically 47 U.S.C. § 253, preempted the local ordinance at issue. That statute

includes the following provision:

       If, after notice and an opportunity for public comment, the Commission
       determines that a State or local government has permitted or imposed any
       statute, regulation, or legal requirement that violates subsection (a) or (b) of
       this section, the Commission shall preempt the enforcement of such statute,
       regulation, or legal requirement to the extent necessary to correct such
       violation or inconsistency.

§ 253(d).


                                            -31-
       Section 253(d) grants power to the FCC; presumably an action filed under the

APA to compel the FCC to “preempt the enforcement of such statute,” id., would have

been available to Qwest. Such an action would have promoted “[t]he advantages of . . .

centralized, expert administration.” (Majority Op. 21.) The Qwest Corp. panel expressly

acknowledged other courts’ holding “that 47 U.S.C. § 253(d) calls on the [FCC] to

enforce 253(a) and 253(b).” 380 F.3d at 1265. Yet none of the panel members, including

the author of today’s majority opinion (who wrote separately in Qwest Corp.), concluded

that the possibility of an APA action foreclosed Qwest’s suit against Santa Fe.7

       Today’s majority cites Chief Justice Roberts’ dissent in Douglas for the

proposition that “[a]llowing for both Supremacy Clause actions and agency enforcement

threatens potential inconsistency or confusion, and imperils the uniformity that Congress

intended by centralizing administration of the federal program in the agency . . . .”

(Majority Op. 21-22.) I am sure my colleagues are well aware that dissents, even those

“not challenged by any other Justice on [a particular] point,” (id. at 24), and even those

whose reasoning the majority finds sound, (id. at 26), are not law. To my knowledge, no

court has ever held that the hypothetical possibility of bringing a suit against an agency

under the APA forecloses a litigant from bringing an entirely different suit against a state


       7
         My colleagues say that the possibility of APA relief in Qwest Corp. “was never
addressed by the court and parties,” (Majority Op. 43 n.6), suggesting that the panel’s
silence on the matter supports their position. But the absence of any discussion of an
APA remedy is precisely the point. The majority’s assertion that the possible availability
of APA review in this case distinguishes it from Qwest Corp. is an invention; APA
review is equally available to the plaintiffs in both cases. And as I have already noted,
the APA was not properly addressed by the parties in this case. The majority raised the
issue sua sponte in its call for supplemental briefing.
                                            -32-
or a municipality. The majority certainly does not direct the reader to any such case, nor

does it suggest that the text of the APA provides any support for its position. And

because this entirely novel factor was also present in Qwest Corp., it provides the

majority no shelter.

       In its eagerness to jettison the binding holding of Qwest Corp., the majority omits

a series of cases that undermine its assertion that a Supremacy Clause action is

unavailable because “statutory requirements should be enforced through the

administering agency.” (Majority Op. 27.) In Seminole Tribe v. Florida, 517 U.S. 44

(1996), the Supreme Court considered the circumstances under which a traditional

equitable cause of action under Ex parte Young might be curtailed based on concerns of

interference with executive administration. The Court concluded that such suits are

unavailable only if “Congress has prescribed a detailed remedial scheme for the

enforcement against a State of a statutorily created right.” Seminole Tribe, 517 U.S. at

74. But “[t]he fact that the Federal Government can exercise oversight of a federal

spending program and even withhold or withdraw funds . . . does not demonstrate that

Congress has displayed an intent not to provide the more complete and more immediate

relief that would otherwise be available under Ex parte Young.” Va. Office for Prot. &

Advocacy v. Stewart, 131 S. Ct. 1632, 1639 n.3 (2011) (quotation omitted).8 Because the


       8
         Similarly, a federal right may be unenforceable under § 1983 if the statute creates
a “comprehensive enforcement scheme.” City of Rancho Palos Verdes v. Abrams, 544
U.S. 113, 120 (2005) (quotation omitted). However, an agency’s “power to shut off all or
part of a state’s funding is not a comprehensive enforcement scheme.” Planned
Parenthood of Ind., Inc. v. Comm’r of Ind. State Dept. of Health, 699 F.3d 962, 974-75
(7th Cir. 2012) (quotation omitted). As the Supreme Court has explained, agency
                                           -33-
Seminole Tribe doctrine already provides an important limitation on direct Supremacy

Clause causes of action, effectively limiting the possibility of interference with a

comprehensive statutory scheme, the majority’s decision to create a new and far more

restrictive test is all the more indefensible.

                                                  C

       The majority’s asserted rationales for distinguishing Qwest Corp. and Edmondson

are unavailing. But I am also troubled by the way the majority opinion would undermine

the precedents of the Supreme Court and our court to reach its conclusion. I fear that

today’s opinion creates a dangerous norm that will allow future litigants to undermine

and re-litigate issues once thought to be settled law, depriving the public of the

“evenhanded, predictable, and consistent development of legal principles.” Payne, 501

U.S. at 827.

                                                  1

       To justify its conclusion that neither Qwest Corp. nor Edmondson binds this panel,

the majority writes: “In neither was the existence of a Supremacy Clause cause of action

disputed.” (Majority Op. 39.) The majority characterizes our holding in Qwest Corp. as

“four conclusory sentences, citing decisions by two other circuits.” (Id. at 40.) It adds,

“[t]here was no need for any additional analysis because no one disputed the existence of


authority over funding, even when coupled with the “availability of an action against [an
agency] under the APA,” does not provide a “sufficiently comprehensive” scheme to bar
other avenues of relief. Wilder v. Va. Hosp. Ass’n, 496 U.S. 498, 522 & n.19 (1990).
Thus, “[c]ourts have consistently held that statutory schemes that merely give oversight
and funding control to the federal government do not foreclose § 1983 claims.” Joseph
A. v. Ingram, 275 F.3d 1253, 1263 (10th Cir. 2002).

                                                 -34-
a cause of action.” (Id. at 40-41.) And because Edmondson simply applied the rule

articulated in Qwest Corp., its discussion of the cause of action issue was even barer.

The majority infers from the brevity of these discussions that they failed to “definitively

resolve[] the issue before us.” (Id. at 39.) With no small degree of hubris, the majority

opinion suggests that the Qwest Corp. panel improperly reached out to decide an

unargued issue. (But see Majority Op. 15-45.)

       But to make that conclusion, my colleagues must rely not on the published

opinions of this court or the Court, but instead (erroneously, see Part II.C.2, infra) on the

briefs and pleadings of the parties in earlier decided cases, (see Majority Op. 39, 42 n.5).

Neither Qwest Corp. nor Edmondson indicates that the cause of action issue was

undisputed; the majority makes this claim based on an incorrect reading of briefs filed in

those cases. This approach does violence to any reasonable conception of precedent and

potentially undermines countless decisions of this court. The existence of a cause of

action in Qwest Corp. was unambiguously decided by the panel. A later panel is not

entitled to announce—based entirely on its reading of the briefs in a previous case—that

a holding is invalid. Such an approach reduces the certainty and predictability that are

central to the principle of stare decisis. Any future litigant unsatisfied with an

unambiguous holding of this court may now apparently turn to documents authored not

by an Article III judge, but by the interested parties, and convince a subsequent panel to

re-try the case.

       A person seeking to understand the law in this circuit should not have to read

briefs in already decided cases to capture the meaning of a published opinion of our

                                             -35-
court. When a panel of this court writes, “[a] party may bring a claim under the

Supremacy Clause that a local enactment is preempted even if the federal law at issue

does not create a private right of action,” Qwest Corp., 380 F.3d at 1266, it should not be

necessary to look past that statement and decide whether that issue was sufficiently

“disputed” to make that statement by this court binding law. By relying on its own

assessment to undermine a precedent that both parties to this litigation treated as settled,

the majority establishes a norm that permits infinite relitigation of our court’s holdings.

                                              2

       In any event, the majority’s claim that the existence of a Supremacy Clause cause

of action was undisputed is erroneous. In its combined opening and answer brief,9 the

City of Santa Fe advanced a jurisdictional argument intertwined with the question of

whether the Supremacy Clause provides a cause of action. The majority correctly states

that the existence of a cause of action and the question of jurisdiction are distinct,

(Majority Op. 36), but in light of the specific arguments advanced by the parties in Qwest

Corp., the questions collapsed into a single inquiry.

       Santa Fe argued that Qwest lacked a cause of action under either § 1983 or § 253

of the Federal Telecommunications Act. (See City of Santa Fe Combined Opening and

Answer Br. 2.) It thus stated that the district court’s decision “rests federal jurisdiction

solely on the Supremacy Clause” and that this was error because “the Supremacy Clause

cannot in and of itself confer ‘arising under’ jurisdiction.” (Id.) The City argued that

although the Supremacy Clause might provide a defense based on federal law, “under the

       9
           Qwest Corp. was a cross-appeal. 380 F.3d at 1262.
                                             -36-
well-pleaded complaint rule, a federal defense does not show that ‘the plaintiff’s original

cause of action arises under the Constitution.’” (Id. at 2-3 (quoting Franchise Tax Bd. v.

Laborers Vacation Trust, 463 U.S. 1, 10 (1983)).) In its conclusion, the City explicitly

equated the jurisdictional and cause of action questions, arguing that if the court “finds

that Qwest’s complaint fails to state a federal cause of action, the court should remand

with instructions to dismiss for want of jurisdiction under 28 U.S.C. § 1331.” (Id. at 58.)

       Qwest responded that “private plaintiffs seeking injunctive or declaratory relief

may challenge local telecommunications ordinances under the Supremacy Clause,

regardless of whether the Telecom Act confers a private right of action.” (Qwest Reply

Br. 2-3.) In a footnote, Qwest noted that “[e]ven in the absence of an explicit statutory

provision establishing a cause of action, a private party may ordinarily seek declaratory

and injunctive relief against state action on the basis of federal preemption.” (Id. at 2 n.4

(quoting Bud Antle, Inc. v. Barbosa, 45 F.3d 1261, 1269 (9th Cir. 1995)).) The City of

Santa Fe replied that the relevant precedent “does not hold that federal courts have

jurisdiction to enjoin local telecommunications ordinances, even absent a private right of

action.” (City of Santa Fe Reply Br. 2.)

       As the foregoing makes clear, Santa Fe asserted two premises: (1) that Qwest

lacked a federal cause of action; and (2) that a federal cause of action was a precondition

of federal question jurisdiction. The Qwest Corp. panel might have disposed of Santa

Fe’s jurisdictional argument by rejecting the second premise and holding that federal

question jurisdiction can exist even without a federal cause of action. In Grable & Sons

Metal Products v. Darue Engineering & Manufacturing, 545 U.S. 308 (2005), decided the

                                            -37-
year after Qwest Corp., the Supreme Court “resolve[d] a split within the Courts of

Appeals on whether . . . a federal cause of action [is] a condition for exercising federal-

question jurisdiction,” by holding just that. Id. at 311-12. But the Qwest Corp. panel

instead addressed the first premise, ruling that “the issue of pre-emption is not an

anticipated defense, but is the basis for a federal claim,” 380 F.3d at 1264 n.1,

specifically, a direct “claim under the Supremacy Clause,” id. at 1266.

       Because this legal conclusion was a necessary step in the court’s decisional path, it

is a binding holding. See Yost v. Stout, 607 F.3d 1239, 1244 n.6 (10th Cir. 2010) (“A

holding consists of those propositions along the chosen decisional path or paths of

reasoning that (1) are actually decided, (2) are based upon the facts of the case, and (3)

lead to the judgment.” (quotation and emphasis omitted)). And despite the majority’s

attempt to limit Qwest Corp. to a misstated version of its specific facts, “[t]he precedent

of prior panels which this court must follow includes not only the very narrow holdings

of those prior cases, but also the reasoning underlying those holdings, particularly when

such reasoning articulates a point of law.” United States v. Meyers, 200 F.3d 715, 720

(10th Cir. 2000).

                                             D

       There are but two exceptions to the rule that one panel may not overrule another:

superseding en banc review or intervening Supreme Court decisions. See Rezaq v.

Nalley, 677 F.3d 1001, 1012 n.5 (10th Cir. 2012). The majority does not identify any

such superseding decisions. Instead, the majority relies on the dissent in Douglas in its

attempt to rewrite our circuit jurisprudence. Again, a dissent is not superseding Supreme

                                            -38-
Court precedent. To the extent the majority is drawn to the Douglas dissent, it is free to

argue for en banc reversal of Qwest Corp. See Fed. R. App. P. 35. But it is not at liberty

to usurp the authority of the Supreme Court or our en banc court and overturn Qwest

Corp. on its own.

       There can be no doubt that the Douglas dissent is incongruous with our circuit

precedent. The dissenting Justices in that case would have established a blanket rule:

“the Supremacy Clause does not provide a cause of action to enforce the requirements of

[a federal statute] when Congress, in establishing those requirements, elected not to

provide such a cause of action in the statute itself.” Douglas, 132 S. Ct. at 1212 (Roberts,

C.J., dissenting); see also id. (“Thus, if Congress does not intend for a statute to supply a

cause of action for its enforcement, it makes no sense to claim that the Supremacy Clause

itself must provide one.”). These statements are the antithesis of our holding in Qwest

Corp. that “[a] party may bring a claim under the Supremacy Clause that a local

enactment is preempted even if the federal law at issue does not create a private right of

action.” 380 F.3d at 1266. Tellingly, despite the majority’s extensive quotation of the

Douglas dissent, these passages are omitted. The majority nevertheless applies them.

        Other than the Douglas dissent, the majority provides no support for its novel

theory of Supremacy Clause jurisprudence. The text of the Constitution does not assist

the majority’s attempt to limit these claims. The Supremacy Clause states:

       This Constitution, and the Laws of the United States which shall be made in
       Pursuance thereof; and all Treaties made, or which shall be made, under the
       Authority of the United States, shall be the supreme Law of the Land; and
       the Judges in every State shall be bound thereby, any Thing in the
       Constitution or Laws of any State to the Contrary notwithstanding.

                                             -39-
U.S. Const. art. VI, cl. 2. It does not distinguish between preemption of state

“enforcement actions” and laws that interfere with positive federal rights, nor does it

exclude Spending Clause legislation.

       The majority finds no support in majoritarian Supreme Court opinions. This is

because our holding in Qwest Corp. is fully in line with Supreme Court practice. In

Shaw, the Court explained that “[i]t is beyond dispute that federal courts have jurisdiction

over suits to enjoin state officials from interfering with federal rights.” 463 U.S. at 96

n.14 (citing Ex parte Young, 209 U.S. at 160-62). And the Court notes that it “frequently

has resolved pre-emption disputes in a similar jurisdictional posture.” Id. As numerous

commentators and courts—including our own—have noted, “[t]he best explanation of Ex

parte Young and its progeny is that the Supremacy Clause creates an implied right of

action for injunctive relief against state officers who are threatening to violate the federal

Constitution and laws.” Charles Alan Wright et al., 13D Federal Practice and Procedure

§ 3566, at 292 (3d ed. 2008); see Joseph A. ex rel. Wolfe v. Ingram, 275 F.3d 1253, 1265

(10th Cir. 2002) (quoting Charles Alan Wright et al., 13B Federal Practice and Procedure

§ 3566, at 102 (2d ed. 1984)); Burgio & Campofelice, Inc. v. N.Y. Dep’t of Labor, 107

F.3d 1000, 1006 (2d Cir. 1997) (quoting same); Guar. Nat’l Ins. Co. v. Gates, 916 F.2d

508, 512 (9th Cir. 1990) (quoting same); see also Richard H. Fallon et al., Hart and

Wechsler’s The Federal Courts and the Federal System 807 (6th ed. 2009) (describing as

“well established” “the rule that there is an implied right of action to enjoin state or local

regulation that is preempted by a federal statutory or constitutional provision”).



                                             -40-
       The Supreme Court has explicitly rejected the majority’s assertion that only

preemptive defenses are permitted under the Supremacy Clause. In Franchise Tax Board,

a case decided the same day as Shaw, the Court explained that “a claim of federal pre-

emption does not always arise as a defense to a coercive action.” 463 U.S. at 12 n.12.

This holding fits neatly with the Court’s prior pronouncement that “the prospective relief

authorized by Young ‘has permitted the Civil War Amendments to the Constitution to

serve as a sword, rather than merely a shield, for those whom they were designed to

protect.’” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 105 (1984) (quoting

Edelman v. Jordan, 415 U.S. 651, 664 (1974)).

       Moreover, the Court has repeatedly addressed the merits of Supremacy Clause

claims that do not involve “enforcement actions” and are based on Spending Clause

legislation. In Pharmaceutical Research & Manufacturers of America v. Walsh, 538 U.S.

644 (2003), seven Justices (three in the plurality, one concurring, and three in dissent)

reached the merits of preemption claims concerning a state law that provided for the

public identification of manufacturers who refused to participate in a rebate program, and

forbade the dispensation of drugs from non-compliant manufacturers to state Medicaid

beneficiaries without “prior authorization.” Id. at 654, 668; see id. at 670-71 (Breyer, J.,

concurring in part); id. at 684 (O’Connor, J., concurring in part and dissenting in part).

And in Lawrence County, the Court considered whether a state statute regulating the

manner in which certain federal funds could be distributed by local governments violated

the Supremacy Clause. 469 U.S. at 257-58. It noted that a related federal case seeking a

declaration that the statute “conflicted with the federal Act and was therefore invalid

                                            -41-
under the Supremacy Clause” had been dismissed by the Eighth Circuit, which concluded

“that the county’s invocation of the Supremacy Clause did not convert the action into one

arising under federal law.” Id. at 259 n.6. “This ruling was erroneous,” the Court added.

Id.

       The majority cites Justice Kennedy’s concurrence in Virginia Office for Protection

& Advocacy for the proposition that the Supremacy Clause permits only “an anticipatory

action to enjoin enforcement of a state law.” (Majority Op. 31.) But the actual quote is

descriptive rather than restrictive; it simply notes that the injunction sought in Ex parte

Young was a preemptive assertion of a defense in equity. Va. Office for Prot. &

Advocacy, 131 S. Ct. at 1642 (Kennedy, J., concurring). Justice Kennedy states

immediately following the quoted sentence that “[t]he Court has expanded the Young

exception far beyond its original office in order to vindicate the federal interest in

assuring the supremacy of federal law.” Va. Office for Prot. & Advocacy, 131 S. Ct. at

1642 (quotation and alteration omitted). As this statement indicates, the concurrence

does not suggest that defensive claims are the only ones permitted under the Supremacy

Clause. To the contrary, Justice Kennedy joined the opinion of the court, which gave the

green light to a suit “alleg[ing] that respondents’ refusal to produce the requested medical

records violates federal law; and seek[ing] an injunction requiring the production of the

records.” Id. at 1639 (majority opinion). Such a suit is clearly not one asserting a

preemptive defense.




                                             -42-
                                             E

       The majority’s deviation from Qwest Corp. also breaks with the clear weight of

authority in other circuits. Numerous decisions have stressed the distinction between a

cause of action under the Supremacy Clause and one seeking enforcement of the federal

law in question—a distinction the majority attempts to eliminate by imposing the same

requirements on Supremacy Clause claimants as those applying to plaintiffs seeking to

assert an implied right of action. See Indep. Living Ctr. of S. Cal., Inc. v. Shewry, 543

F.3d 1050, 1058 (9th Cir. 2008) (holding that “a plaintiff seeking injunctive relief under

the Supremacy Clause on the basis of federal preemption need not assert a federally

created ‘right,’ in the sense that term has been recently used in suits brought under

§ 1983, but need only satisfy traditional standing requirements”); Wright Elec., Inc. v.

Minn. State Bd. of Elec., 322 F.3d 1025, 1028 (8th Cir. 2003) (“[A] claim under the

Supremacy Clause that a federal law preempts a state regulation is distinct from a claim

for enforcement of that federal law.” (quotation omitted)); St. Thomas-St. John Hotel &

Tourism Ass’n v. Virgin Islands, 218 F.3d 232, 241 (3d Cir. 2000) (concluding that “a

state or territorial law can be unenforceable as preempted by federal law even when the

federal law secures no individual substantive rights for the party arguing preemption”

after noting that “[w]e know of no governing authority to the effect that the federal

statutory provision which allegedly preempts enforcement of local legislation by conflict

must confer a right on the party that argues in favor of preemption”).

       As these courts recognize, the potential relief available in a Supremacy Clause

claim is limited to enjoining a state or local government official from engaging in an

                                            -43-
ongoing violation of the Constitution. See Qwest Corp., 380 F.3d at 1266. A private

statutory cause of action, in contrast, frequently allows for damages and in some

circumstances may be asserted against private parties. See Western Air Lines, 817 F.2d

at 225-26 (“an implied private right of action is a means of enforcing the substantive

provisions of a federal law” and “provides remedies, frequently including damages, for

violations of federal law by a government entity or by a private party”); see also

Gonzaga, 536 U.S. at 277 (damages remedy under private cause of action); Sanchez, 403

F.3d at 335 (“The Supremacy Clause claim advanced here by Appellees is not based on a

claim of right under Title X, nor is it a claim for damages; it is a preemption claim. The

Gonzaga Court gave no indication that it intended to alter its prior practice regarding such

claims . . . .”). Unlike a damages remedy, a suit that merely prevents a state official from

violating our federal structure cannot reasonably be described as interfering with a

statutory scheme. See Bond, 131 S. Ct. at 2365 (noting the role of individual claims in

remedying “violation[s] of a constitutional principle that allocates power within

government”); Green v. Mansour, 474 U.S. 64, 68 (1985) (“[T]he availability of

prospective relief of the sort awarded in Ex parte Young gives life to the Supremacy

Clause. Remedies designed to end a continuing violation of federal law are necessary to

vindicate the federal interest in assuring the supremacy of that law.”).

       Further, a majority of circuits have recognized a cause of action under the

Supremacy Clause to challenge allegedly preempted state laws that merely impose

conditions on the receipt of government benefits and thus could not lead to an

“enforcement action.” Most of these cases involve Spending Clause legislation. Yet the

                                            -44-
majority asserts that “tradition” backs its naked “assum[ption]” that Planned Parenthood

is prohibited from redressing its injury through the Supremacy Clause without actually

looking to the case law. (Majority Op. 24.)

       In Sanchez, the Fifth Circuit concluded that it was “well-established” that “there is

an implied right of action to enjoin state or local regulation that is preempted by a federal

statutory or constitutional provision,” 403 F.3d at 334 (quotation omitted), and reached

the merits of a claim alleging that a Texas statute “imposes conditions on the receipt of

federal funds that are incompatible with Title X,” id. at 335. That statue—just like the

Kansas statute at issue in this case—could not have led to an “enforcement action”

because it merely distributed funding. Id. at 328. Today’s panel majority creates a direct

circuit split with Sanchez.

       The Eighth Circuit has also held that the Supremacy Clause provides a private

right of action for claims that involve the provision of government benefits. In Lankford

v. Sherman, 451 F.3d 496 (8th Cir. 2006), the plaintiffs challenged a state regulation

making them ineligible for durable medical equipment as inconsistent with the Medicaid

Act. Id. at 501-02. The court held “that plaintiffs do not have a private right of action to

enforce Medicaid’s reasonable-standards provision under section 1983,” but reached the

opposite conclusion with respect to the Supremacy Clause: “Preemption claims are

analyzed under a different test than section 1983 claims, affording plaintiffs an

alternative theory for relief when a state law conflicts with a federal statute or

regulation.” Id. at 509. Lankford held that the plaintiffs were likely to prevail on their

Supremacy Clause claim, id. at 513, which would require the state to provide additional

                                             -45-
benefits and thus could not possibly be a defense against an “enforcement action.”

Similarly, the Third Circuit held in Lewis v. Alexander, 685 F.3d 325 (3d Cir. 2012),

“that the Supremacy Clause provides Plaintiffs with an independent basis for a private

right of action in this case.” Id. at 345.10 The challenged state statute defined which

trusts would be counted as assets for purposes of determining Medicaid eligibility, id. at

333-34, and the challenge thus was not being used to defend against government coercion

but to establish eligibility for government benefits.

       In Pharmaceutical Research & Manufacturers of America v. Concannon, 249 F.3d

66 (1st Cir. 2001), the plaintiff challenged a statute that directed a state agency to enter

into rebate agreements with drug manufacturers. Id. at 71. Drug manufacturers were not

required to enter into these agreements, and thus an “enforcement action” would be

impossible. Instead, the statute provided for public identification of providers that did

not participate, and required prior authorization of drugs from those companies before

they could be dispensed to Medicaid beneficiaries. Id. at 71-72. The court rejected the

argument that the plaintiff’s interests were not adequately at issue, because the plaintiff

did not assert “an action to enforce rights under the Medicaid statute, . . . but rather a

preemption-based challenge under the Supremacy Clause. In this type of action, it is the

interests protected by the Supremacy Clause, not by the preempting statute, that are at


       10
          Although the plaintiffs also filed suit under § 1983, the district court concluded
that it was necessary to reach the Supremacy Clause issue because plaintiffs challenged
one of the statutory provisions solely in their Supremacy Clause claim. Lewis, 685 F.3d
at 345 n.17. Noting that this “may be an overly narrow construction of the Complaint,”
the Third Circuit nevertheless concluded that “the Supremacy Clause does provide a
cause of action” and affirmed. Id.
                                             -46-
issue.” Id. at 73. The Supreme Court affirmed, although it did not discuss the

Supremacy Clause private right of action issue. Walsh, 538 U.S. at 670. The D.C.

Circuit reached the same conclusion in a case essentially identical to Concannon. In

Pharmaceutical Research & Manufacturers of America v. Thompson, 362 F.3d 817 (D.C.

Cir. 2004), the court rejected the state of Michigan’s argument that “the appellants have

no private right of action for injunctive relief.” Id. at 819 n.3 (over the separate opinions

of Justices Scalia and Thomas in Walsh, 538 U.S. 644). The Thompson court noted that

by reaching the merits of the Supremacy Clause claim, “the remaining seven Justices

appear to have sub silentio found no flaw” in the reasoning of the First Circuit. Id.

       The Second Circuit has held, consistent with Qwest Corp., that a plaintiff may sue

directly under the Supremacy Clause to seek access to government property. In Western

Air Lines, the court concluded that the plaintiff lacked a cause of action under the

allegedly preemptive federal statutes and affirmed the dismissal of the plaintiff’s § 1983

claims for lack of prosecution. 817 F.2d at 224-25. Highlighting the “distinction

between a Supremacy Clause claim and other private rights of action,” the court held that

the plaintiff could sue directly under the Supremacy Clause to challenge an airport’s

perimeter rule that refused flights from a certain distance. Id. at 226. The court in

Western Air Lines expressly noted that this rule was not a coercive restriction but part of

the “proprietary powers of airport operators.” Id. Thus the allegedly preempted rule was

not one that could lead to an “enforcement action” but simply imposed a condition on the

use of property held by a local government body.



                                            -47-
       And our circuit, in Qwest Corp. and Edmondson, has recognized a direct cause of

action under the Supremacy Clause to challenge local enactments that could not be

enforced in a coercive action. That makes no fewer than seven circuits that have rejected

the rationale espoused by the majority.

                                              F

       In some future case, the Supreme Court might upend the long line of cases flowing

from Ex parte Young to Shaw to Qwest Corp., reject the view of a majority of circuits,

and curtail litigants’ ability to assert the supremacy of federal law in protecting their

rights. In the Supreme Court, “stare decisis is a principle of policy rather than an

inexorable command.” Hohn v. United States, 524 U.S. 236, 251 (1998) (quotations

omitted). Not so in this court. Meyers, 200 F.3d at 720.

       In Douglas, the Court explicitly stated: “[W]e do not address whether the Ninth

Circuit properly recognized a Supremacy Clause action to enforce this federal statute

before the agency took final action.” 132 S. Ct. at 1211. Notwithstanding the position of

the Chief Justice’s dissent on the matter, the only fair interpretation of Douglas is that the

inquiry remains open at that level. Since Douglas, the Fourth Circuit has explicitly

declined to reassess its existing precedent. See United States v. South Carolina, 720 F.3d

518, 525-26 (4th Cir. 2013) (“Nothing in the Chief Justice’s dissent disturbed the prior

holdings of the Supreme Court or circuit courts that have allowed private parties to seek

injunctive relief from state statutes allegedly preempted by federal law.”).

       My colleagues claim that Planned Parenthood of Indiana supports their decision to

upend our circuit precedent based on the Douglas dissent because the Seventh Circuit

                                             -48-
was “not inclined to agree” with the position of multiple circuits, including our own, that

allow a cause of action directly under the Supremacy Clause. (Majority Op. 28 (quoting

699 F.3d at 983).) But the Seventh Circuit’s discussion of the Douglas dissent did not

reject binding circuit precedent, and that panel did what my colleagues categorically

refuse to do: proceed to the merits of Planned Parenthood’s claims. Planned Parenthood

of Ind., 699 F.3d at 983-85. Looking for whatever they can find that might support the

adoption of a dissenting opinion, my colleagues meekly point to a state court decision

from Massachusetts. Boston Med. Ctr. Corp. v. Sec’y of the Exec. Office of Health &

Human Servs., 974 N.E.2d 1114, 1127-28 (Mass. 2012). I acknowledge that state

opinions may provide persuasive analysis in some instances, but the cited decision

contains no substantive discussion of the Supremacy Clause issue, and “the federal courts

are particularly appropriate bodies for the application of pre-emption principles.” Hagans

v. Lavine, 415 U.S. 528, 550 (1974) (quotation omitted). The majority’s invocation of

the Douglas dissent as a basis for denying Planned Parenthood a cause of action is

unwarranted.

                                              III

       The district court opinion before us on review for error is well-grounded in its

findings of fact and based on a learned presentation of the appropriate authorities.

Because it correctly applies the precedents of the Court and of this court, it is free of error

and justly worthy of affirmance. I am neither persuaded to follow the vanishing trail that

my colleagues pursue in an end run around the district court, nor am I amenable to their

harsh treatment of binding precedent. Accordingly, I dissent.

                                             -49-
