James E. Pfander (Northwestern University – Pritzker School of Law) & Samy Abdelsalam have posted Pulp Fiction? A Reappraisal of Ex parte Young on SSRN. Here is the abstract:
For well over one hundred years, the Ex parte Young decision has served as a controversial landmark in the development of constitutional litigation. Celebrated for assuring a federal forum for the vindication of federal constitutional rights, the decision has also been criticized by those who view its rejection of the state’s sovereign immunity defense as a transparent fiction. Embracing this fictional account, the Court has expanded state immunity and needlessly complicated analysis of officer suits as a vehicle for the enforcement of federal law. What’s more, the recent holding in Trump v. CASA, Inc., limiting equitable remediation to practices traceable to the High Court of Chancery at the time of the founding, sets a standard that Ex parte Young litigation cannot obviously satisfy.
This Article seeks to understand Ex parte Young on its own terms, explaining how the Court adapted the emerging law of constitutional litigation in the latter half of the nineteenth century to the challenges of twentieth. Rather than relying on a fiction, Ex parte Young reaffirmed a settled distinction between suits that implicated the state’s pecuniary interests and those that merely specified rules for the government or regulation of the state. Unlike the suit in Hans v. Louisiana, seeking to enforce a state contract, the suit against Edward Young did not name the state as such and did not seek to enforce the state’s pecuniary obligations. Instead, the suit was purely governmental or regulatory, seeking to enforce individual duties imposed on Young by the Fourteenth Amendment. Indeed, the very language that critics deride as fictional was addressed not to the state’s immunity but to the officer’s discretionary immunity from private law claims.
Unpacking Ex parte Young helps answer a raft of questions that now complicate constitutional litigation. Rightly applied, Ex parte Young would foreclose the use of state immunity as a defense to officer suit litigation in such cases as Seminole Tribe and Pennhurst; those decisions rely on a misunderstanding of Ex parte Young and its supposed fiction. In addition, a reappraised Ex parte Young would limit equitable restraint under Younger v. Harris; broaden the role of federal courts in the settlement of multiparty disputes; foreclose the use of state immunity as a barrier to official suability in such cases as Whole Womens’ Health; and clarify the state’s obligation to protect its officials from personal liability in suits contesting state policy. Finally, Ex parte Young’s approach to the evolving challenges of constitutional enforcement raises important questions about the methodology of equitable traditionalism on display in Trump v. CASA.
Highly recommended. Download it while it’s hot!