Wednesday, December 01, 2010
VOPA v. Stewart and the Future of Ex parte Young
I've blogged before at some length about the issue presented in Virginia Office for Protection and Advocacy v. Stewart, a case that is scheduled to be argued before the Supreme Court later this (Wednesday) morning (and in which I co-authored amicus briefs in support of certiorari and in support of the Petitioner on the merits). In short, the question is whether a public agency created by a state pursuant to a federal Spending Clause statute may invoke the doctrine of Ex parte Young in suits for prospective relief against a state officer allegedly acting in violation of federal law--i.e., in circumstances in which the ability of a private agency to sue under Ex parte Young is unquestioned. The Fourth Circuit, in an opinion by Judge J. Harvie Wilkinson III, said no. [The unanimous en banc Seventh Circuit has since come out the other way.]
I won't reiterate the substantive arguments here. They're addressed at some length in my earlier post, and at even greater length in this contribution to the Charleston Law Review's Supreme Court Preview. Rather, I thought I'd take a brief moment to reflect on the implications of a decision affirming the Fourth Circuit and barring an Ex parte Young suit here. In particular, although Ex parte Young is often described (whether appropriately or not) as a "fiction," it has become a necessary fiction, providing useful balance between the sovereign immunity that the Supreme Court has read the Constitution to confer upon the states and the need to vindicate the supremacy of federal law as against state officers. As one of the more influential Federal Courts treatises puts it, the decision has proven “indispensable to the establishment of constitutional government and the rule of law.” And yet, that may be jeopardized if the decision below is upheld.
To be sure, the Court has recognized constraints on "EPY" over the years. Thus, Edelman v. Jordan controversially limited relief under Ex parte Young to claims for prospective, rather than retrospective, relief. And Pennhurst II held that Ex parte Young could not be used to pursue prospective relief against state officers for violations of state law. But with one sui generis (and largely marginalized) exception, the Court has otherwise emphasized, in Justice Scalia's words, that "a court need only conduct a straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.”
That brings me to Stewart. To hold, as the Fourth Circuit did, that the identity of the plaintiff can sometimes factor into the availability a cause of action under Ex parte Young is to turn this "straightforward inquiry" on its head for reasons I've previously suggested, and to thereby potentially open the door to Young's demise. Yes, this is a unique case about a situation that doesn't arise very often (i.e., a state agency suing a state officer for violating a federal statute that the state agency is specifically empowered to enforce), but the underlying analytical premise of Ex parte Young doesn't admit of such considerations. Indeed, Young rests on the conclusion that state officers aren't in fact "the state" for Eleventh Amendment purposes when they continue to act in violation of federal law. One is hard-pressed to see how the legal status of the plaintiff meaningfully affects that analysis...
Moreover, even if one finds the Fourth Circuit's "intramural" concern persuasive, there is a serious floodgates problem; the conclusion that these kinds of case-specific circumstances do -- and should -- impact the availability vel non of relief necessarily opens the door to other considerations that might also factor in. Just for starters, these could include the nature of the federal right being enforced; the good (or bad) faith of the state officer; the potential availability of other remedies; and so on. Young's saving grace both practically and analytically is the simplicity of its core premise, and that's what's at stake later today.
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Steve, I have not followed this case closely, but I was (and remain) intrigued by the back(s)-and-forth(s) during oral argument about whether there are any conditional-spending / Dole limits on the ability of the national government to attach "change the structure of your state's government" strings to public funding. Do you have any thoughts on this question?
Posted by: Rick Garnett | Dec 2, 2010 12:35:34 PM
Hi Rick -- I, too, was intrigued by that line of questioning. I think the answer is complicated by cases like Coyle v. Smith, where the Court barred Congress from using its powers to dictate where Oklahoma's capital should be. But my (admittedly not-well-considered) view is that the Spending Clause is simply different. So long as the spending condition satisfies Dole, and is therefore not coercive, it seems to me that the state is acting voluntarily no less so than if it voluntarily changed the structure of its government without federal incentives. The Constitution might constrain those changes (e.g., the Guarantee Clause), but not in a manner that I think would be unique to Spending Clause statutes...
What do you think?
Posted by: Steve Vladeck | Dec 2, 2010 3:48:38 PM
Thanks, Steve. Like you, I was thinking of Coyle (and, I guess, other recent judicially-enforceable-federalism-external-limits-on-federal-power cases like Printz and New York) but, of course, current conditional-spending doctrine does not seem to impose any substantive limits on the conditions that can be attached (though, of course, Congress cannot attach a condition that it would be unconstitutional for a state to implement). I tend to think that an approach more like SOC's in Dole would be preferable to the old Chief's, but those with Article III commissions disagree!
Posted by: Rick Garnett | Dec 2, 2010 3:55:51 PM
Rick -- I suspected Coyle might be part of the thought process... I guess the real question I have (whether for you or for the current Justices) is whether the Court's Spending Clause jurisprudence itself compels my view. That is to say, is there any difference whatsoever between an otherwise valid Spending Clause statute and direct (non-commandeered) state legislation? At least under Dole, why isn't the answer no?
And to tie it back to this case for a second, what's telling about the PAIMI Act is that Virginia could have taken the money and not "changed the structure" of its state government, had it just chosen to create a private agency rather than a public one... So even if I'm wrong above, it may well be that this isn't the case in which such a limit should be recognized...
Posted by: Steve Vladeck | Dec 2, 2010 4:04:13 PM
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