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Thursday, October 02, 2014

Is Ex parte Young Doomed?

Among the 11 cases in which the Supreme Court granted certiorari this morning is Armstrong v. Exceptional Child Center, a case out of Idaho (via the Ninth Circuit) that asks "Whether the Supremacy Clause gives Medicaid providers a private right of action to enforce 42 U.S.C. § 1396a(a)(30)(A) against a state where Congress chose not to create enforceable rights under that statute." This is the exact same question that the Supreme Court had before it--and narrowly ducked--two years ago in Douglas v. Independent Living Center of Southern California, a case I've written about here previously. And the fact that the Court has once again decided to take it up does not bode well for the plaintiffs--or, as I'll explain below, the future availability of remedies under Ex parte Young.

In Douglas, a 5-4 majority vacated the Ninth Circuit's affirmative answer to that question based upon an intervening change in the administrative posture in the case--without endorsing or criticizing the Court of Appeals' ruling. But in a strongly worded dissent on behalf of himself and Justices Scalia, Thomas, and Alito, Chief Justice Roberts argued that such remedies under the Supremacy Clause should not be available, lest the Supremacy Clause provide litigants with a means of making an end-run around their inability to enforce section 30(A) (the Medicaid statute's critical requirement that states fund Medicaid at levels sufficient to guarantee "equal access" to quality providers) either directly or via 42 U.S.C. § 1983. For Chief Justice Roberts, Douglas should have followed directly from the Court's earlier decisions in Alexander v. Sandoval (limiting direct enforcement) and Gonzaga University v. Doe (limiting 1983). Taking those cases one crucial step further, the Douglas dissent would have held, for the first time, that litigants may not pursue injunctive relief against state officers for violations of federal law under Ex parte Young unless the underlying federal law is itself privately enforceable. 

The reason why such a conclusion would not be inconsistent with Ex parte Young and its progeny, the Chief Justice explained, is because "Those cases . . . present quite different questions involving the pre-emptive assertion in equity of a defense that would otherwise have been available in the State's enforcement proceedings at law.” This hyper-narrow view of the scope of Ex parte Young, which was most forcefully advanced in a 2008 Stanford Law Review article by UVa Professor John Harrison, has never been embraced by a majority of the Supreme Court, and cannot be squared with any number of subsequent Supreme Court decisions. As Justice Scalia reiterated just three years ago, “[i]n determining whether the doctrine of Ex parte Young avoids an Eleventh Amendment bar to suit, 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.’" And because of these modest prerequisites, as then-Justice Rehnquist wrote in 1974, Ex parte Young "has permitted the Civil War Amendments to the Constitution to serve as a sword, rather than merely as a shield, for those whom they were designed to protect.” In other words, litigants have been able to use Ex parte Young to affirmatively and prospectively vindicate federal rights against state officers whether or not they are otherwise facing state enforcement proceedings in which those rights might provide a defense. On the Douglas dissenters' view, such remedies would only be available when such enforcement proceedings were nigh... 

And yet, Douglas came within one vote of cementing this far narrower understanding of the availability of such relief. And Justice Kennedy (who joined Justice Breyer's majority opinion in Douglas that ducked the issue) has already expressed at least some support for this view of Ex parte Young elsewhere. After Douglas came out, I wrote a short essay about the bullet that the Douglas Court dodged. With this morning's grant in Alexander, it increasingly appears that any solace one might have taken from that result may well be short-lived.

[Full disclosure: I co-authored an amicus brief on behalf of former HHS officials in support of the Respondent in Douglas--which argued, contrary to the position advanced by the Solicitor General in his amicus brief, that HHS has historically understood private enforcement of the equal access provision to be a critical part of the Medicaid scheme.]

Posted by Steve Vladeck on October 2, 2014 at 12:23 PM in Blogging, Civil Procedure, Constitutional thoughts, Scholarship in the Courts, Steve Vladeck | Permalink



It's certainly true that 1983 may provide the cause of action in _most_ cases in which a plaintiff seeks injunctive relief against a state officer for directly violating federal law, which is why this issue doesn't come up that often. But 1983 isn't available to enforce the Supremacy Clause, which is why this sort of injunctive relief is so important, and why the Court had, prior to Douglas, never worried about whether the preempting federal law was itself privately enforceable. As then-Justice Rehnquist wrote in Green v. Mansour, "Remedies designed to end a continuing violation of federal law are necessary to vindicate the federal interest in assuring the supremacy of that law."

As I just wrote to Anon, there's an elusive but enormously significant difference between 1983 claims to enforce a federal statute, which, whatever their significance, are wholly a creature of Congress, and equitable claims to enforce the Supremacy Clause, which are not...

Posted by: Steve Vladeck | Oct 3, 2014 12:57:57 PM

Anon -- Of course, I agree with your prediction (hence the point of this post!). But as I wrote after Douglas, I don't agree that it's a straight line from Sandoval to Gonzaga to this result. After all, whatever their merits, Sandoval and Gonzaga are entirely about _sub-constitutional_ claims, and so whether the Court is being faithful to legislative intent or not, there's no argument in either of those cases that the Court is somehow undermining constitutional remedies. Here, in contrast, reasonable minds may differ about the circumstances in which the Supremacy Clause requires a remedy against state officers enforcing unconstitutional state laws, but I have to imagine we can all agree that there's a constitutional foundation to such claims (and, indeed, that EPY and its companion case, General Oil Co. v. Crain, conclude as much).

So whether folks are more inclined toward my view of the right answer here or yours, my point is merely that this is a material step _beyond_ the constriction of federal remedies that Sandoval and Gonzaga produced...

Posted by: Steve Vladeck | Oct 3, 2014 12:46:31 PM

Professor Vladeck,

First, I want to thank you for engaging with an anonymous commenter, especially one who (it turns out) isn't and won't be a law professor. The lowest of the low.

Second, it sounds to me as if you're committed to the reasonable view that there has to be some way to enforce federal law against state officials, and perhaps you would have been just as happy with an implied right of action in a pre-Alexander, pre-Gonzaga v. Doe world, or perhaps with a broader approach to 1983. My view is that the big move here isn't the outcome in Armstrong (assuming your view is doomed) but Alexander and Gonzaga v. Doe themselves. It strikes me that if the Court is committed to the principles of those cases, then the Supremacy Clause cause of action is an unjustified end-run around limits on federal remedies.

I recognize that the portion of Young concerning the cause of action/equitable remedy is in some tension with my reading, depending on how you look at Young. But I'm comfortable limiting the cause of action holding to John Harrison's reconceptualization, i.e., that it's an anti-suit injunction, which we might say is a historical/inherent part of what the "judicial power" is all about. I predict that 5 Justices will agree with me, although I don't think that means I'm right about anything.


Posted by: anon | Oct 3, 2014 11:16:59 AM

Why can't we say the statutory source in constitutional claims is § 1983 and Young is simply the gloss on who is the appropriate "person" depriving of the rights?

Posted by: Howard Wasserman | Oct 2, 2014 10:26:54 PM

Hi Anon -- Of course I agree that, insofar as Ex parte Young only explains why the Eleventh Amendment won't bar a suit for prospective relief against a state officer for an ongoing violation of federal law, it won't be "doomed" by anything that happens in Armstrong, and I apologize if that wasn't already clear from our exchange thus far.

Where I disagree is with your implicit suggestion that it's clear in all of the Supreme Court's statutory EPY cases that the underlying federal statute provided an express cause of action. As Justice Blackmun put it in Shaw, in such cases, plaintiffs are seeking "injunctive relief _from_ state regulation," and not injunctive relief to enforce an (otherwise enforceable) federal statute. Thus, it wouldn't have mattered, especially before Sandoval, whether the statute provided its own cause of action. The EPY line of cases presupposes that the cause of action comes directly from the Supremacy Clause.

I realize this is the less obvious side of Young, but otherwise, what explains Young itself, where no statute provided a cause of action to the Northern Pacific shareholders in their suit against Attorney General Young? Your answer may be that constitutional claims are different, and so the source of the cause of action in Young was the Due Process Clause (the source of the shareholders' substantive federal claim). But if that's true, how do we reconcile that with the Court's increasing hostility to reading causes of action directly into constitutional provisions?

In short, my fear is that, if the Douglas dissenters get their way, what you describe as the "more familiar" part of Young will be far less relevant, because it will only be at issue in cases in which state officers violate federal laws that provide an express cause of action...

Posted by: Steve Vladeck | Oct 2, 2014 8:33:15 PM

Professor Vladeck,

I understand your position. We disagree about the right answer to the question at issue in Armstrong, and that's fine.

But do you agree that the (probably more familiar) part of Young about sovereign immunity is in no way "doomed" by Armstrong, regardless of which side prevails? That VOPA, Verizon Maryland, and Pennhurst were not suits directly under the Supremacy Clause or any other clause of the Constitution, but instead at least purported to be based on some statutory right of action?


Posted by: anon | Oct 2, 2014 7:13:35 PM


On 1983, every circuit to consider the matter before Gonzaga held that this exact provision could be enforced through 1983, including the Third Circuit in an en banc opinion by then-Judge Alito. Since and in light of Gonzaga, even though the statute hasn't been amended, the circuits have come out the opposite way. So 1983 is out.

But in any event, this is a different claim--not that a state officer is violating federal rights, but that a state law is preempted by a federal one, and so relief is available to enforce the Supremacy Clause. Footnote 14 in Shaw expressly contemplates EPY relief in such cases, and if the theory of EPY is that relief flows directly from the Supremacy Clause, why should a cause of action in the statute be necessary for prospective relief, as opposed to damages?

Put another way, if Roberts is correct in Douglas, why is EPY relief available for violations of _constitutional_ provisions that don't provide their own cause of action??

Posted by: Steve Vladeck | Oct 2, 2014 5:02:43 PM

I tend to agree with Anon. At least some of the argument in Douglas was concerned with how a Young action skirts congressional intent in not providing for an express or implied right of action. On that same note, couldn't the plaintiffs avoid this problem by trying to bring this through § 1983?

Posted by: Howard Wasserman | Oct 2, 2014 4:53:56 PM

Hi anon -- I'm unfamiliar with any previous Supreme Court case suggesting that the existence of a private cause of action under the federal statute at issue is necessary in order to enforce it via Ex parte Young. Yes, Easterbook leaned in that direction in IPAS, but then there's footnote 14 of the Supreme Court's opinion in Shaw v. Delta Air Lines, Inc., which certainly seems to militate in the opposite direction.

Posted by: Steve Vladeck | Oct 2, 2014 3:42:40 PM

Professor Vladeck,

You are conflating two distinct elements of Young. The first one (at issue in VOPA) is about state sovereign immunity, and the straightforward inquiry applies.

The second one is whether there's a cause of action. VOPA did not address whether the plaintiff had a right of action under the relevant statutes, which (as you'll recall) was addressed by the Seventh Circuit in the IPAS en banc--Judge Easterbrook thought no, everyone else thought yes.

The first part of Young is alive and well. Where there is a cause of action, you determine whether sovereign immunity bars a claim by applying the "straightforward inquiry."

The second part of Young just wasn't at issue in VOPA and Verizon Md, and it's a complete non-event that the Supreme Court would apply Alexander, Gonzaga, etc. to limit implied rights of action.

Posted by: anon | Oct 2, 2014 1:43:12 PM

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