Katherine Mims Crocker (Texas A&M University School of Law) has posted Ex Parte Young Redux (103 Washington University Law Review (forthcoming 2026)) on SSRN. Here is the abstract:
Trump v. CASA, Inc., a high-profile Supreme Court case challenging President Trump’s birthright-citizenship executive order, cemented a seismic shift in federal courts’ authority to issue injunctions against government defendants’ unconstitutional acts. An earlier stage of that shift was evident in 2021 with the failure of a lawsuit intended to shield Texans from the Lone Star State’s Senate Bill (“S.B.”) 8—a statutory scheme prohibiting abortions far earlier in pregnancy than Roe v. Wade and its progeny allowed. The problem for the challengers in Whole Woman’s Health v. Jackson was that S.B. 8 permitted enforcement only by private parties through civil suits, including for substantial money damages. That made it impossible to rely on the usual procedure for contesting state laws in federal court ahead of their application: seeking declaratory or injunctive relief against the government officials responsible for enforcing them.
“Were it not for sovereign immunity,” one scholar wrote, “the logical defendant in a suit to enjoin the enforcement of S.B. 8’s ban on pre-viability abortions would have been the state of Texas.” In the face of ascendant state “bounty” schemes, this Article challenges that near-universal assumption about the scope and strength of sovereign immunity, arguing that even with sovereign immunity, a logical defendant in a suit to enjoin the enforcement of S.B. 8’s ban on pre-viability abortions may have been the state of Texas. The Article does so by analyzing the development of the law surrounding Ex parte Young, the 1908 case permitting federal courts to prevent state officials from enforcing unconstitutional state statutes—and by advocating a modest but meaningful extension to allow suits for declaratory or injunctive relief against states themselves in limited circumstances. There are two principal ways to understand Young doctrine: the first aimed at upholding the rule of law by protecting structural constitutional values, the second aimed at preserving the judicial role by maintaining consistency with historical remedies. With a deep dive into each approach, this Article argues that both support state suability as a plausible path to keeping government generally within the bounds of law. Along the way, the Article examines what CASA, as part of the Supreme Court’s broader turn toward history and tradition, means for this “bedrock” area of civil-rights litigation.
Highly recommended.