Ex parte Young.

AuthorHarrison, John
PositionSovereign immunity

INTRODUCTION I. EX PARTE YOUNG AND ITS FICTION A. Ex Parte Young B. The Ex Parte Young Legal Fiction II. YOUNG AND SOVEREIGN IMMUNITY A. Anti-Suit Injunctions and Sovereign Immunity B. Anti-Suit Injunctions, Negative Relief and the Opinion in Young III. YOUNG AS APPLIED DOCTRINE IV. THE EX PARTE YOUNG CAUSE OF ACTION A. Fiction, Paradox, and Anti-Suit Injunctions B. The Cause of Action in the Court's Opinion CONCLUSION INTRODUCTION

Again; if the State is to be considered a party, it is a party plaintiff. The State is the actor, and the Bank is a defendant. In form it may not be so, but the substance is to be regarded. (1) Each of us may hope that by our hundredth year much of our youth will have been forgotten. That has happened with Ex parte Young, (2) a central case with respect to sovereign immunity and constitutional remedies. Today the Supreme Court maintains that Young used a legal fiction to create an exception to principles of sovereign immunity. It is also commonly thought that the case recognized a new cause of action founded in the Constitution, and that it entails a paradox because it requires that an officer defendant like Attorney General Young be treated as the State for purposes of liability but not as the State for purposes of sovereign immunity.

There is no exception, no fiction, no new cause of action, and no paradox, and all for the same reason. Ex parte Young approved the use against a state officer of a standard tool of equity, an injunction to restrain proceedings at law. Through an anti-suit injunction a party who would be the defendant in a corresponding lawsuit can enforce in equity a legal position that would be a defense at law. That is what the railroads who sued Attorney General Young were seeking to do. Sovereign immunity permits private people to assert defenses against the government, so a suit against an officer that enforces a defense is consistent with sovereign immunity, not an exception to it, and requires no fiction for its justification. Anti-suit injunctions have been a staple of equity for centuries, so the injunction approved in Young did not rest on a novel cause of action derived from the Fourteenth Amendment. Because Attorney General Young's liability to an anti-suit injunction did not derive from a rule applying only to the State, it was not necessary both to affirm and deny that he acted for the government, and so there is no paradox.

Ex parte Young is important mainly with respect to sovereign immunity, so most of this Article is about that aspect of the case. Part I discusses Young and the litigation that gave rise to it, and the Court's current view that the case employs a legal fiction to create an exception to sovereign immunity. Part II provides a rationale for the case based on the nature of anti-suit injunctions, which enable potential defendants at law to present their defenses in equity. Presenting a defense to a state enforcement action does have an effect on the government, but the effect does not invade sovereign immunity, so it is unnecessary to ignore an impermissible effect through a fiction. Although the Court's opinion in Young does not adopt this rationale explicitly, its reasoning is in important ways congruent with the anti-suit explanation. Part III discusses Young as a precedent, explaining that for many decades it stood for the important but limited proposition that officers may be sued for injunctions against enforcement actions. It did not quickly become authority for the broader claim that officer suits may be used to obtain any form of forward-looking relief.

Part IV then asks whether Ex parte Young implies the existence of a novel federal cause of action, and whether it encounters the paradox that is often attributed to it. It does not. The Conclusion briefly discusses the implications of this revised reading for current issues. Understood as suggested here, Young does not support the claim that all prospective injunctive relief is consistent with sovereign immunity, nor the position that constitutional rules should be assumed of their own force to create causes of action to enforce them. Given the importance of the anti-suit remedy endorsed in Young, it is significant that the availability of that remedy has narrower implications than it may seem to.


    1. Ex Parte Young

      In the spring of 1907, railroad rates were a major political issue in Minnesota, as in other parts of the country, and there was a confrontation between the railroads and advocates of legislation to reduce rates. Edward T. Young, the Attorney General of Minnesota, advised the Minnesota legislature on designing a package of rate reductions that would not be overturned by the courts. Acting on Young's advice, the legislature adopted a major reduction in passenger rates combined with a smaller reduction in freight rates than many advocates of rate cuts had wanted; Young believed that the combined effect would not be confiscatory and so would pass muster under existing constitutional doctrine. (3)

      Young also recommended two features that would inhibit judicial review of the new rates. Aware of the Supreme Court's decision in Fitts v. McGhee, (4) Young drafted the bill so as to avoid giving any particular state officer specific authority to enforce the new rates. (5) If his reading of Fitts was correct, that would remove an avenue by which the railroads could bring suit to challenge the rates. If the railroads were unable to become plaintiffs, their other avenue would be to violate the rates and litigate as defendants in an enforcement proceeding. In order to deter that mode of review, the legislation imposed severe penalties for violations, including criminal penalties for railroad employees. (6) The railroads and their officers thus would be running a grave risk if they disregarded the rates in order to set up litigation: if Young was right about the constitutional issue, the railroads' defense would be unavailing and they would be subject to heavy penalties.

      It seemed for a while that the combination of moderation on substance and firmness on remedy would succeed; initial indications were that the railroads would comply with the new rates and not seek a means of challenging them in court. (7) Not everyone with a stake in the railroads' profitability was satisfied, however, including some major shareholders. (8) After some negotiation and maneuvering, on May 31, 1907, shareholders in each of the railroads covered by the rates brought derivative actions in the federal circuit court, seeking injunctions against compliance with the rates on the grounds that they were unconstitutional under the Due Process Clause of the Fourteenth Amendment and the Commerce Clause. (9) The suit that gave its name to the circuit court litigation was brought by Charles F. Perkins against the Northern Pacific. (10)

      In addition to suing their corporations, the shareholders sued Attorney General Young, asking for an injunction against enforcement of the rates. District Judge William Lochren, holding the circuit court, issued a temporary restraining order the day the suit was filed, directing Young not to enforce the rates. (11) On July 2, with the temporary restraining order in effect but before Judge Lochren had decided whether to grant a preliminary or permanent injunction, Attorney General Young filed a motion to dismiss the suit against him on grounds of sovereign immunity, a motion that Judge Lochren rejected after argument on July 8 and 9. (12) On September 20 Lochren issued a preliminary injunction against enforcement of the new commodity rates, though not of the merchandise or passenger rates. (13)

      Judge Lochren's order was still not a permanent injunction. Extensive fact-finding, probably before a special master, would be required before a final decision could be reached. (14) But as the federal jurisdictional statutes then stood there was appellate review only of final judgments. Faced with a long delay before he could bring the sovereign immunity issue before the Supreme Court, Young decided to put himself in contempt of the circuit court's order. On September 24, 1907, he filed a state court mandamus action against the Northern Pacific. (15) After more maneuvering, the Northern Pacific shareholder plaintiffs in Perkins moved the circuit court to hold Young in contempt. (16) Judge Lochren did so on October 21, directing that the United States marshal take Young into custody until he purged himself of the contempt by withdrawing the mandamus action, and fining him $100. (17) Young was required to report to the marshal once a day.

      Now that he was in federal custody pursuant to an order of a lower court, Young was able to petition the Supreme Court for the so-called original writ of habeas corpus, an action that is original in form but appellate in substance, because it is used to review the decision of a lower court. Thus the eponymous lawsuit here is not the primary proceeding, Perkins, but a new one named after the defendant in the circuit court who became petitioner in the Supreme Court: Ex parte Young.

      After extensive briefing and two days of argument in December 1907, the Supreme Court decided that case in March 1908. (18) Justice Peckham, writing for the Court, had a series of issues to resolve. First, he concluded that there was federal question jurisdiction in Perkins (the parties were not completely diverse), identifying a number of issues of federal law raised in the proceeding. (19) He then turned to one of the merits questions: whether the penalties, designed to inhibit challenge to the rates through a defensive proceeding, were unconstitutional. He concluded that they were inconsistent with the requirements of due process because of the burden they placed on access to the courts. (20)

      Having reached the merits first, perhaps to make the opinion more persuasive, Peckham turned to the question of the circuit court's jurisdiction...

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