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Thursday, May 17, 2012

Standing, sovereign immunity, and marriage equality litigation

My new essay, Rejecting Sovereign Immunity in Public Law Litigation, has been published at Fordham Law Review's Res Gestae. I am responding to Matthew Hall's Standing of Intervenor-Defendant in Public Law Litigation.

In ongoing marriage equality litigation, the named executive-officer defendants have declined to defend the constitutionality of the relevant laws in court. California's governor and attorney general refused to defend the constitutionality of Proposition 8; various federal cabinet officers, including Eric Holder, have refused to defend § 3 of DOMA in the strongest terms. This has lead to a scramble of other actors seeking to jump into the litigation to defend the constitutionality of the anti-equality law. In California, it was the sponsors of the popularly enacted law (who were allowed to defend in the trial court and appeal the adverse judgment to the Ninth Circuit); as to DOMA, it has been the Bipartisan Legal Advisory Group ("BLAG"), a standing committee of the House leadership. Hall argues (in a piece he presented at the Junior Fed Courts Workshop in February) that this type of intervention is proper only if the intervenor-defendant can satisfy a form of independent defendant-specific standing, to ensure an Article III case-or-controversy with a genuinely adverse and interested defending party.

I argue in response that this really should not be a matter of Article III standing and we only talk about it in those terms because of sovereign immunity. Sovereign immunity (of state and federal governments) prohibits private litigation against the government eo nomine (subject to some exceptions typically not applicable in constitutional litigation) and forces constitutional plaintiffs to sue responsible executive-branch officers under the theory of Ex Parte Young. But if we reject sovereign immunity, which arguably has no logical place in a republican system of government, we also eliminate the need for Young or the individual-officer workaround. We also eliminate the scramble of would-be intervenors that we have seen in the marriage equality cases. Plaintiffs can simply sue the state or the United States by name, giving us an unquestionably interested and adverse named defendant. The government then decides who is authorized to defend it (to "be" it) in court, when, and how.

The space limitations of a law review supplement forced me to leave out some important pieces to this idea. But I hope to go back and dig a bit deeper into it in the future, so comments and thoughts on Matt's and my exchange are welcome. I will add that I am on a SEALS panel this summer on the future of Ex Parte Young and this essay will provide the starting point for my presentation there--if there is no sovereign immunity, there is no need for Ex Parte Young in its most common application.

Posted by Howard Wasserman on May 17, 2012 at 10:00 AM in Article Spotlight, Civil Procedure, Howard Wasserman, Law and Politics | Permalink


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Yep, no space to get into it; saving it for the follow-up piece. My instinct is to argue for eliminating sovereign immunity as to damages. What I haven't figured out yet is whether I also would argue for respondeat superior liability for the entity, which would have the effect of shifting damages litigation entirely onto the entity, or whether I would keep the same damages regime, only allowing for entity liability on top of individual liability for states and the U.S. (in other words, bringing to the states and fed the same regime that applies as to municipalities).

My instinct is that some form of qualified immunity should remain. What it looks like depends on my answer to the question above.

Posted by: Howard Wasserman | May 18, 2012 11:04:33 PM

Maybe this was one of the things that space constraints required to be left on the cutting room floor, but would your objections to sovereign immunity apply not only to injunctive/forward-looking relief, but also to suits for damages under 1983 or Bivens? And if that's the case, could that mean we could chuck qualified immunity at the same time as Ex Parte Young?

The rhetoric used in justifying the doctrine of qualified immunity often focuses on the crushing effect imposing "personal liability" would have on government actors, over-deterring (read: deterring) them from violating people's constitutional rights. To the extent that we credit this explanation (ignoring indemnification by the state), permitting suit directly against the government would leave the government actors free to serve the public without worrying about personal liability for their actions.

Making the state liable would also eliminate confusion over questions of "supervisory" liability and the identity of the proper plaintiff--whether the police chief or attorney general was aware and responsible for what the individual officers or FBI agents did would be as irrelevant as whether the CEO of UPS knew how his delivery truck drivers were driving.

On the other hand, the doctrine of qualified immunity has always struck me as being really about sparing the government actor from the indignity of being haled into court, having to comply with depositions and discovery and generally accounting for his actions to opposing counsel, a judge and (ultimately) a rabble of jurors. Presumably these would all still be present even if the state or the United States were the nominal defendant.

Posted by: Andrew Carlon | May 18, 2012 5:36:22 PM

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