by Michael C. Dorf
Although not widely known by non-lawyers, attorneys who practice in the federal courts are very familiar with the 1908 case of Ex Parte Young for two main reasons. First, it is the leading case articulating the legal fiction that a lawsuit against a government official seeking an injunction directed at that official to act or refrain from acting in some way is not a suit against the state barred by sovereign immunity. Second, Ex Parte Young is commonly cited as vindicating the existence of a cause of action or legal claim against such officials.
In this second function, Ex Parte Young is somewhat redundant with the injunctive relief available against government officials under the main civil rights statute, 42 U.S.C. Sec. 1983. However, there are some circumstances where Ex Parte Young is not redundant. For example, in a case like the 2002 SCOTUS decision in Verizon Md v. Public Serv. Comm'n, the plaintiff was permitted to bring an Ex Parte Young action to enjoin state officials from taking action that violated a federal statute (the federal Telecommunications Act) but not civil rights. A Section 1983 action wouldn't have been available, but Ex Parte Young was.
Because Ex Parte Young is most closely associated with the two important doctrines that bear its name, it is easy to forget the facts of the case. However, they bear examination, because they point the way towards a means for challenging Texas SB 8 and future laws that similarly seek to chill the exercise of constitutional rights while closing the federal courthouse doors to suits for anticipatory relief. Accordingly, let's review what actually occurred in Young.
Minnesota regulated railroad rates through ex post punishments. The railroad sued the Attorney General to enjoin the rates as confiscatory and thus unlawful. The question was whether it could do so or instead had to wait for the state to enforce the law after a violation and then raise the alleged unlawfulness of the rates as a defense--thus taking the risk that the railroad and its human agents would be subject to severe penalties if the defense proved unsuccessful. As noted above, the Court said yes, sweeping aside the sovereign immunity of the state and allowing (based on a long line of precedent) a cause of action.
Crucial to the Court's opinion in Young (although absent in many of the post-Young cases) was the impracticality of the railroad asserting its federal objections as a defense in a post-hoc enforcement action in state court. Why was that impractical? Because of what we would today call a chilling effect very similar to the operation of SB 8. Here is how the Court put the point in Young:
a sale of a single [passenger railroad] ticket above the price mentioned in th[e] act might subject the ticket agent to a charge of felony, and, upon conviction, to a fine of $5,000 and imprisonment for five years. It is true the company might pay the fine, but the imprisonment the agent would have to suffer personally. It would not be wonderful if, under such circumstances, there would not be a crowd of agents offering to disobey the law. The wonder would be that a single agent should be found ready to take the risk.
As I have noted, even absent this sort of chilling effect, the case law permits an Ex Parte Young challenge to state (or local) executive action to be brought in advance of its enforcement. In a case like Young, even the threat of a post-hoc fine of five cents rather than five thousand dollars and no imprisonment could be the basis for an anticipatory action in federal court. Nonetheless, the Court in Young emphasized the chilling effect because it highlighted why anticipatory relief was so valuable in that context.
A federal cause of action for anticipatory relief would likewise be extremely valuable where the chilling effect comes from the threat of severe civil liability, as with SB 8.
(As an aside, I would note that when I described SB 8 as posing the threat of crippling liability in an earlier essay and tweet, one skeptic suggested that a properly constructed test case would pose the threat of "only" $10,000 in liability. That strikes me as dubious. As Professor Colb observed in her Verdict column this week, SB 8 "says a defendant is protected from further legal exposure once he or she or it has fully paid for a particular abortion. But because the statutory amount for full payment is 'not less than' $10,000, the potential liability ceiling appears to be infinitely high." Yes, it is possible that the Texas Supreme Court could limit liability to $10,000 per defendant per abortion, but in the absence of anticipatory relief, it might impose that limit only after the fact. So the mere potential for crippling liability is enough to exert the kind of chill that rightly concerned the Court in Young.)
In my essay here on Tuesday, I explained that restrictive Supreme Court justiciability doctrines play a key role in permitting even the possibility that the Texas legislature can get away with banning abortion via the back door even while abortion officially remains a constitutional right. I argued that those doctrines are hardly necessitated by the constitutional text or history but are of the Court's own making. The same can be said of Ex Parte Young. Indeed, it has been said, and by the Supreme Court itself.
In the 2015 case of Armstrong v. Exceptional Child, the Supreme Court had occasion to expound the nature of the Ex Parte Young cause of action. The Court rejected the suggestion that the Constitution's Supremacy Clause itself gives rise to Ex Parte Young. Rather, as Justice Scalia wrote for the Court: "The ability to sue to enjoin unconstitutional actions by state and federal officers is the creation of courts of equity . . . . It is a judge-made remedy." And if judges can make an Ex Parte Young remedy against future violations of constitutional rights by executive officials, there is no reason why they cannot make a similar remedy against future violations of constitutional rights from private lawsuits pursuant to an unconstitutional statute (or, if you prefer, against current violations via a chilling effect).
To be sure, in the quotation I provided from Armstrong, I have replaced with ellipses Justice Scalia's statement that the Ex Parte Young action "reflects a long history of judicial review of illegal executive action, tracing back to England." But in the current context that qualifier merely restates the point with which I begin. I acknowledge that courts have not heretofore extended the equitable remedy of Ex Parte Young to suits against private actors. I am arguing first that they have the power to do so--because Young itself shows that the courts can create causes of action where no statute or constitutional provision does so--and second, that they ought to do so where, as in SB 8 as in Young, the state has devised a remedial scheme that as a practical matter forecloses raising federal rights as a defense.
It is also worth noting that my proposed extension of Ex Parte Young is an extension in one sense but more modest than Young itself in another. Recall that the first function of Ex Parte Young is to provide a legal fiction that enables circumvention of state sovereign immunity. That function is not at all necessary in the context of suits against private actors, who would not be cloaked in the state's sovereign immunity in the first place.
Three final points:
(1) I realize that a cause of action is necessary but not sufficient to secure relief against all potential bounty hunters under SB 8 and similar laws. One would also need to overcome the justiciability doctrines I critiqued on Tuesday.
(2) I am not so naive as to think that the Supreme Court actually will extend Young in the way I've proposed. In recent years, the Court has been more interested in curtailing rather than extending judge-made remedies for constitutional violations in the related context of damages suits against federal officers under the Bivens line of cases. It's conceivable that a federal district judge could extend Young in the way I'm suggesting, though if so, it's likely that the Fifth Circuit would quickly reverse the result and be affirmed by the Supreme Court. However, as with everything else in the sordid business surrounding SB 8, that would be on them, not the Constitution.
(3) In the Bivens context and the related context of limits on judge-made remedies for statutory violations, the Court's cases give Congress wide latitude to create causes of action. So Congress could probably enact a statute creating a cause of action that would enable prospective relief against the likes of SB 8. Yes, it's possible to imagine the Supreme Court invalidating such a statute by invoking the limits it has placed since 1997 on congressional lawmaking under Section 5 of the Fourteenth Amendment. But that's hardly a sure thing under the Court's Section 5 jurisprudence and we won't know unless Congress tries. Which, alas, it almost surely won't.