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Tuesday, March 31, 2015

Is § 1983 superfluous?

I do not have a whole lot to say about Tuesday's decision in Armstrong v. Exceptional Child Center, although I look forward to reading Steve's (no doubt blistering) comments. But I do wonder about the question posed in the title, as well as whether I need to rethink how I teach Ex Parte Young.

The majority and dissent agreed that Ex Parte Young--formally, an action for "injunctive relief against state [and federal] officers who are violating, or planning to violate, federal law"--is a long-standing creation of courts of equity, rather than a product of the Supremacy Clause. They disagreed over whether the Medicaid Act impliedly limited the availability of such an equitable action--Justice Scalia's majority opinion said it did, Justice Sotomayor's dissent said no. In particular, Sotomayor distinguished this type of equitable action from both § 1983 "and laws" actions and implied statutory actions, insisting that Congress must affirmatively override the former, while the latter are available only if Congress creates and permits them.

How does this affect § 1983? That statute allows for "an action at law, suit in equity, or other proper proceeding for redress" against a "person" acting under color of state law who deprives the plaintiff of a right secured by the Constitution. I generally explain Ex Parte Young, at least in constitutional actions, as an interpretation of § 1983--the state executive officer is a person, enforcing or threatening to enforce an unconstitutional law deprives the plaintiff of a right secured, and the request for injunctive relief makes this a suit in equity.*

* For similar reasons, I have always believed that using Young to enforce federal employment statutes (ADA, ADEA, FLSA) against states (thus easing the effect of the 11th Amendment) was incoherent, since the applicable statutes being enforced only regulated the employer, not the individual state official who would be enjoined.

But the position unanimously reflected today is that an individual could enjoin an executive officer from enforcing an unconstitutional or preempted law without § 1983. So what is the point of the "suit in equity" language if the equitable action predates 1871 and would exist without that statutory language? **This question is placed in sharper relief in the dissent, which acknowledges that § 1983 allows for many different remedies, but then lumps them all together under that statute in distinction to the free-standing equitable action.

** Just to clarify: My superfluousness concern is only as to the "suit in equity" clause, not for actions in law (i.e., retroactive relief), which still requires § 1983.

Posted by Howard Wasserman on March 31, 2015 at 06:16 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


Although it appears that Scalia in way parses his opinion to leave open other Ex-Parte actions. The underlying intent seems to remove a private right of action. It will create, I believe a chilling effect on bringing a cause of action against officials who knowingly violate the Constitution. I note that we see the very dangerous continued use of so-called Indian law, which by its very foundation is racist and inequitable. The very premise that "Indians" are under the Doctrine of Discovery [still] and less than human diminishes the United States as moral in action. So the Irony of citing the Seminole case has a connection with removing what may be settled law. Do you not think that if this argument and opinion is a new foundation, then other conclusions can be assumed? Hebeas Corpus, right to privacy and many others may not exist in strict constructionist views.

Posted by: Kai Landow | Apr 5, 2015 11:10:50 AM

As a practical matter, I don't think they're different. First, as the Court basically admitted in Humphreys, Monell is virtually always going to be satisfied in injunctive action because an injunctive claim always will involve formal policy or at least custom and deliberative indifference by allowing the unconstitutional conduct to continue. Second, a plaintiff always can enjoin the city official responsible for enforcing the policy the same way she can enjoin the responsible state official. So it seems to me we should end up back in the same place.

Posted by: Howard Wasserman | Apr 3, 2015 12:16:18 PM

Thanks. Just seems so strange to me; cities are not protected by the Eleventh Amendment while states are. EPY is necessary to sue states but not cities. Yet now states are more susceptible to suits for equitable relief under EPY than cities are under 1983. I guess it all goes back to the errors in Will, which imported EPY and the Eleventh Amendment into 1983 suits wherever brought. Maybe sufficient to say that EPY jurisprudence is a mess?

Posted by: Mark Brown | Apr 3, 2015 9:56:35 AM

If pressed, I guess the Court would say that while an EPY action would be available without § 1983 by proceeding directly in equity, the enactment of § 1983 means the statute, even if unnecessary, trumps the equitable action. So an action against a city is brought under § 1983, thus triggering Monell.

Posted by: Howard Wasserman | Apr 1, 2015 5:02:05 PM

I wonder how Los Angeles County v. Humphries (2010) fits into this? There the Court ruled that Ex parte Young suits against municipalities must comply with section 1983's policy or custom requirement. Does Armstrong suggest this is incorrect? Or are cites unique?

Posted by: Mark Brown | Apr 1, 2015 11:15:37 AM

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