The Yale Law Journal


Douglas and the Fate of Ex Parte Young

30 Apr 2012

Although the majority’s reasoning may not have been self-evident, the result may best be understood in light of Chief Justice Roberts’s sweeping dissent. Writing for himself and Justices Scalia, Thomas, and Alito, the Chief Justice saw the issue presented in Douglas as akin to the one he had successfully litigated before the Court in Gonzaga University v. Doe.4 The Gonzaga Court had held that private litigants could not enforce a federal statute through 42 U.S.C. §1983 if Congress did not clearly intend for the underlying statute to be privately enforceable.5 As Chief Justice Roberts put it in Douglas,

  [T]o say that there is a federal statutory right enforceable under the Supremacy Clause, when there is no such right under the pertinent statute itself, would effect a complete end-run around this Court’s implied right of action and 42 U.S.C. §1983 jurisprudence. . . . This body of law would serve no purpose if a plaintiff could overcome the absence of a statutory right of action simply by invoking a right of action under the Supremacy Clause to the exact same effect.6  

Thus, while the majority pursued a narrow course, the Chief would have held that injunctive relief would seldom be available to private plaintiffs under the Supremacy Clause to enjoin governmental officers from violating federal statutes that do not themselves provide a cause of action.7 Given that Justice Kennedy (who joined Justice Breyer’s majority opinion in Douglas) had himself argued for an analogous result in his concurrence in Virginia Office for Protection & Advocacy (VOPA) v. Stewart,8 there may already be five votes to take such a potentially momentous—and troubling—step.

Consider Ex parte Young.9 Although scholars continue to debate the origins and scope of the 1908 decision,10 the case has routinely been cited for the proposition that the Supremacy Clause authorizes equitable relief against state officers for prospective violations of federal law (1) notwiths tanding state sovereign immunity, and (2) regardless of whether the underlying federal law is itself privately enforceable.11 Whether or not Ex parte Young itself articulated this rule,12 it is now generally understood that injunctive relief for constitutional violations does not require a freestanding statutory cause of action (and instead arises under the relevant constitutional provision).13

To similar effect, preemption claims challenging the prospective enforcement of state law have historically been recognized under the Supremacy Clause despite the absence of a statutory cause of action.14 Thus, as Justice Scalia explained for the Court just last Term, in assessing the availability of a remedy under Ex parte Young, “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.”15

To its credit, the Douglas dissent did not ignore Ex parte Young and its progeny. Instead, it dismissed the relevance of those cases by suggesting that relief under Ex parte Young should not be available to litigants who “are not subject to or threatened with any enforcement proceeding” by the state whose law they seek to challenge.16 So understood, the Supremacy Clause would only support injunctive relief for “the pre-emptive assertion in equity of a defense that would otherwise have been available in the State’s enforcement proceedings at law.”17

Although at least one scholar—Professor John Harrison—has argued for precisely this understanding of Ex parte Young,18 the Supreme Court itself has never previously embraced it, and Chief Justice Roberts did not provide additional explanation for why such a reading is the correct one. Such an omission is particularly telling given that the injury in such cases does not arise merely from the state subjecting a specific party to enforcement proceedings based on an unconstitutional state law. Rather, the injury arises from the state’s enforcement of an unconstitutional law writ large.19 So construed, Young is part of a jurisprudential imperative recognizing the ability of litigants to enjoin any unconstitutional state action without a distinct statutory right to do so—because the Constitution itself may in some cases require such a remedy.20 Even if such remedies are not constitutionally compelled, they still play a critical role in ensuring the supremacy of federal law. They also provide a safeguard against all unconstitutional state conduct, not merely conduct that arises from efforts to enforce unconstitutional state law. As Justice Rehnquist explained in Green v. Mansour,“[T]he availability of prospective relief of the sort awarded in Ex parte Young gives life to the Supremacy Clause.”21

Had the Douglas dissenters had their way, then, the Court would have deprived the Supremacy Clause of such force. The dissenters would have limited Supremacy Clause-based injunctions to situations in which (1) the underlying federal right was itself privately enforceable, or (2) injunctive relief was sought to preempt an impending state enforcement proceeding. Whether or not such a result would be normatively desirable, it would be inordinately momentous, for it would suggest that the Supremacy Clause is only violated by a state’s actual enforcement of a preempted federal law, and not merely the enactment or potential enforcement thereof. In any case in which the underlying federal right could be violated without a state enforcement action, the Douglas dissenters would foreclose injunctive relief unless Congress specifically provided a cause of action.

That implication may help explain why Justice Kennedy, who argued for a narrow understanding of Ex parte Young in the VOPA case, nevertheless joined the majority in Douglas in sidestepping the issue. But unless he has a change of heart on the merits, it may only be a matter of time before the Chief Justice’s dissent in Douglas becomes law.

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At its core, the true problem with the Chief Justice’s reasoning is that the analogy to the Gonzaga decision and 42 U.S.C. §1983 fails to persuade. In Gonzaga, the question was simply whether a statute Congress passed could be enforced through a cause of action Congress had separately provided.22 The Court there concluded that private litigants could not enforce federal statutes through §1983 unless Congress unmistakably manifested an intent for the underlying statute to be privately enforceable. Although one may well disagree with the outcome in Gonzaga, it goes without saying that the result did not implicate constitutional concerns, since Congress has all but plenary power to define the parameters of federal nonconstitutional rights and remedies, and there is little to the view that the Constitution ever compels the existence of statutory remedies to vindicate wholly statutory rights. In contrast, if the Supremacy Clause divests state officers of the power to act in violation of any federal law (as Ex parte Young holds), then a plaintiff who seeks injunctive relief in a case like Douglas is seeking as much to enforce the Constitution against the state officer as he or she is seeking to enforce the relevant federal statute. An inability to bring such a suit would leave plaintiffs without a remedy for an ongoing constitutional violation, as opposed to leaving them without a remedy for a statutory violation (as in Gonzaga), or even a prior constitutional violation (as in Bivens cases23).

Taken to its logical extreme, the Chief’s reasoning might even extend to suits for injunctive relief to enforce specific constitutional provisions (such as the Fourth Amendment), in addition to suits like those at issue in Douglas,which seek to enforce the Supremacy Clause. After all, other than the Suspension Clause24 and the Takings Clause,25 no constitutional provision expressly provides a cause of action. And if the answer is that no such cause of action is required to enforce these otherprovisions prospectively, one is left to wonder why the Supremacy Clause is different in this regard; the Douglas dissent does not say.26

It may well be that Chief Justice Roberts believes—like Professor Harrison—that the only constitutionally required remedy in such cases is provided by state enforcement proceedings, which allow for “invalidity and nothing more.”27 On this view, the Constitution is only a shield against state action, and not a sword.28 For decades, the Supreme Court has steadfastly resisted that temptation, at least when it comes to injunctive relief.29 If the Justices decide to change course, as Douglas suggests they soon might, one can only hope that such a decision will rest on more than just an unconvincing analogy to an (itself controversial) nonconstitutional case.

Stephen I. Vladeck is a Professor of Law and the Associate Dean for Scholarship at American University Washington College of Law. Although Professor Vladeck coauthored amicus briefs on behalf of the Respondents in Douglas and the Petitioner in VOPA, the views expressed in this Essay are his alone. He thanks Amanda Frost and Cathy Sharkey for thoughtful and thought-provoking discussions.

Preferred citation: Stephen I. Vladeck, Douglas and the Fate of Ex Parte Young, 122 Yale L.J. Online 13 (2012),