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Ex Parte Young</Em>: Sovereignty, Immunity, and the Constitutional

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Ex Parte Young</Em>: Sovereignty, Immunity, and the Constitutional University of Miami Law School University of Miami School of Law Institutional Repository Articles Faculty and Deans 2009 Ex Parte Young: Sovereignty, Immunity, and the Constitutional Structure of American Federalism Charlton C. Copeland University of Miami School of Law, [email protected] Follow this and additional works at: https://repository.law.miami.edu/fac_articles Part of the Constitutional Law Commons, and the Supreme Court of the United States Commons Recommended Citation Charlton C. Copeland, Ex Parte Young: Sovereignty, Immunity, and the Constitutional Structure of American Federalism, 40 U. Tol. L. Rev. 843 (2009). This Article is brought to you for free and open access by the Faculty and Deans at University of Miami School of Law Institutional Repository. It has been accepted for inclusion in Articles by an authorized administrator of University of Miami School of Law Institutional Repository. For more information, please contact [email protected]. EXPARTE YOUNG: SOVEREIGNTY, IMMUNITY, AND THE CONSTITUTIONAL STRUCTURE OF AMERICAN FEDERALISM Charlton C. Copeland* I. INTRODUCTION T HE U.S. Supreme Court's recent state-immunity jurisprudence requires reconsideration. The call for reconsideration does not stem from an absolutist rejection of all forms of state autonomy or immunity, but rather from a fear that the Court's immunity jurisprudence is dislodged from its role in the enforcement of the federalism structure of American government. This article offers an account of the Court's seminal decision in Ex parte Young as a path toward the reconsideration of state immunity case law.' This account of Ex parte Young asserts that the dominant focus on Young in the state-immunity canon obscures its important contribution to our understanding of state immunity, . Associate Professor of Law, University of Miami School of Law. B.A., Amherst College, M.A.R., Yale Divinity School, J.D., Yale Law School. I would very much like to thank Professor Rebecca Zietlow for inviting me to participate in the University of Toledo Law Review's Ex parte Young Symposium. I would also like to thank my colleagues and friends, Anthony Alfieri, Bernadette Atuahene, Mario Barnes, Kenneth Casebeer, Mary Coombs, Marc Fajer, Zanita Fenton, Michael Froomkin, Patrick Gudridge, Frances Hill, Elizabeth Iglesias, Osamudia James, Melissa Murray, Gera Peoples, Robert Rosen, Stephen Schnably, Jamelle Sharpe, and Frank Valdes for their helpful comments on this article. I would also like to thank two students at the University of Miami who provided invaluable assistance in readying this article for publication-Jenea Reed and Karen Shafrir. I would very much like to thank the editors of the Toledo Law Review for their invaluable assistance in preparing this article for publication. They have been incredible. This article is dedicated to two very special people: first, to Justice Kate O'Regan in recognition of her brilliant career as a justice on the Constitutional Court of South Africa. Serving as a clerk in her chambers remains one of the best experiences of my professional career. Second, to Earline C. Sims, whose life as a child of the Great Migration is a testament to the people's continued search for the vindication of the Constitution's principles of equality and justice. 1. This account of Ex parte Young is an alternative reading. It is a relational account of the Court's holding in Young. This account suggests that it is instructive to consider Young as a judicial attempt to enforce the Constitution's federalism structure by resorting to the relationships that arise from the political and institutional structures that the Constitution establishes, rather than enforcing federalism by resorting to specific allocations of power between the national government and the states. Although this article limits its discussion of relational-federalism enforcement primarily to sovereign immunity, this alternative account of federalism enforcement can provide a broader understanding of many federalisms disputes, including commandeering, the dormant commerce clause, and abstention. I examine relational federalism enforcement in these and other areas in Federalism Beyond Power: The Judicial Mediation of the National-State Relationship (2009) (unpublished manuscript, on file with author). UNIVERSITY OF TOLEDO LAW REVIEW [Vol. 40 particularly, and the enforcement of federalism, more broadly.2 Specifically, Young elucidates the larger ideas and dynamics of federalism in two ways: (1) it illustrates federalism's duality as established within the Constitution's ambivalence between nationalist supremacy and state sovereignty; and (2) it demonstrates that state sovereignty is conditioned on the legitimacy of the state's claim to the status of a political community 3 in which the people are sovereign. Although a longer description of Young follows below, the facts in Young support the contention that it recognizes the tension between national supremacy and state sovereignty in American federalism. The issue before the Court in Young was a habeas appeal by the Minnesota Attorney General, who was in federal custody on contempt. Attorney General Young was being held because he had violated a federal court injunction against his effort to prosecute railroad officials for violating a Minnesota maximum-fare statute. The federal court had enjoined the state prosecution at the behest of officers from the railroad, who contended that the state's attempt to regulate fares violated the Constitution. Attorney General Young argued that the lower court's injunction violated sovereign immunity because the suit was against the state in its sovereign capacity. In a decision that fused both equity jurisprudence and state-immunity doctrine, the Court sustained the lower court's injunction, holding that the suit against a state officer for violating the Constitution was not a suit against the state, and therefore state-immunity precedents did not apply. The dominant account of Ex parte Young is demonstrated in the way that it has been deployed in the immunity case law, and elsewhere, by both the defenders and critics of the Court's jurisprudence. They have variously 2. Although discussed in more detail below, the dominant discussion of Ex parte Young focuses primarily on whether its central holding relies on a "legal fiction" that characterizes particular actions as state action for certain constitutional purposes and non-state action for other purposes. The focus on the "legal fiction" dimension of Young relates to its status as either a central component of, or departure from, general state immunity from suit. As argued below, an alternative account of Ex parte Young allows us to cast this debate differently in a way that might challenge the presumptions of both proponents and critics of state immunity doctrine. 3. Distinguished federalism scholars Edward Rubin and Malcolm Feeley have rejected the contention that states are political communities that garner the allegiance of their citizens to any extent that justifies respect for, or protection of the federal arrangements of the original constitution, or other historical periods. For Rubin and Feeley, federalism is purely vestigial; it is a relic of a past, whose uselessness mature constitutional thinkers must recognize. See Edward L. Rubin & Malcolm Feeley, Federalism: Some Notes on a National Neurosis, 41 UCLA L. REv. 903, 950 (1994) (arguing against the protection of federalism on the basis that citizens' political identities are "formed by their membership in the nation as a whole"). Rubin and Feeley seem to have in mind a much thicker conception of political community than the conception that I offer. Rubin and Feeley seem to argue that an authentic political community, one deserving of the level of autonomy that any structure worthy of the name federalism would allow, is one that has a "separate history or culture" from the central government. Id. at 944. They contend that there is no place in the present-day United States that qualifies as a political community in this authentic sense. Id. at 947. 1 take this to be a hopelessly high bar for the test of the legitimacy of a federal structure of government. Subunits of national governments may be deserving of the attributes of autonomy on the grounds that they are formed by the democratic will of the people and they serve as spaces for contesting what might become the inevitable hegemony of the center. For a discussion of the purposes of political contestation in a federal, democratic state, see infra notes 31-32. Summer 2009] YOUNG & STATE IMMUNITYJURISPRUDENCE 845 characterized the Young doctrine as the linchpin of the Court's sovereign- immunity decisions, as a narrow perversion of an otherwise legitimate state immunity, and as the saving grace of an otherwise illegitimate doctrine. The Court's sovereign-immunity majority has also attempted to defend its decisions by reference to the Young doctrine,4 declaring that it plays an "essential ... part of our sovereign immunity doctrine."5 Indeed, the Court rebutted claims that sovereign immunity neuters federal law by pointing to the availability of Young actions as one of "several avenues [that] remain open for ensuring state compliance with federal law." 6 Beyond refuting criticism of its sovereign- immunity doctrine, the Court's related characterization of Young as necessary "if the Constitution is to remain the supreme law of the land" 7 has served another purpose. The Court has exploited this characterization of Young
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