Wednesday Writs: Rufus Gets His Ex Parte Young On, An Explainer

David Josiah Brewer seated with other Supreme Court Justices- Justice Peckham, Shiras, Harlan, White, Gray, McKenna, Brown and Chief Justice Fuller, 1889. Photo by University of Washington, Public domain, via Wikimedia Commons

WW 1: You may be hearing a lot this week about “Ex Parte Young,” so I thought I’d endeavor to explain what it is and how it is that this 113 year old Supreme Court decision is currently relevant.

Back in the aughts – 1900s, not 2000s – the Minnesota legislature passed a rate statute limiting how much railroad companies could charge for carrying certain commodities within the state. Violation of the statute was a misdemeanor criminal offense, punishable by hefty — for the time — fines. Railroad stockholders filed suit in federal court claiming that the statute was an unconstitutional taking without due process, naming as defendant, among others, Minnesota Attorney General Edward T. Young. The plaintiffs asked the Court to enjoin enforcement of the law by prohibiting the railroad companies from publishing the rates and the attorney general from taking actions against them for violation of the statute.

AG Young answered the suit by asking for a dismissal on the grounds that the Circuit Court had no jurisdiction over him because the State of Minnesota had not consented to be sued, and a suit against him was “in truth and effect, a suit against the said State of Minnesota contrary to the Eleventh Amendment of the Constitution of the United States.” The motion was denied, and the court granted the injunction against the companies to prohibit the new rates being put into effect, and against Young prohibiting him from taking any action against the companies for violating the statute.

Young filed a petition for a writ of mandamus in a state court to require the companies to comply with the statute, which was granted. Unhappy with Young’s blatant violation of its order, the Circuit Court issued an order to show cause as to why Young should not be held in contempt for his actions. In response Young repeated his previous argument that the court lacked jurisdiction to prevent him from performing his discretionary official duties. Still unpersuaded, the Circuit Court judge found Young in contempt.

The case was appealed to the Supreme Court, and Justice Rufus Peckham delivered the opinion in today’s case of the week, Ex Parte Young. Peckham acknowledged at the outset the great importance and controversial nature of the case before the Court, the implications of which far surpassed the effects on railroad rates in the state of Minnesota:

We recognize and appreciate to the fullest extent the very great importance of this case not only to the parties now before the court, but also to the great mass of the citizens of this country, all of whom are interested in the practical working of the courts of justice throughout the land, both Federal and State, and in the proper exercise of the jurisdiction of the Federal courts, as limited and controlled by the Federal Constitution and the laws of Congress.

That there has been room for difference of opinion with regard to such limitations the reported cases in this court bear conclusive testimony. It cannot be stated that the case before us is entirely free from any possible doubt, nor that intelligent men may not differ as to the correct answer to the question we are called upon to decide.

Young’s argument was straightforward: to sue him in his official capacity was to effectively sue the state. Because the case at issue did not involve diversity of citizenship, and there was no federal question at issue, there was no federal jurisdiction. As to the latter, Young argued there was no constitutional concern because there was no dispute as to the meaning of the 14th amendment; the issue was one of fact, not law: were the rates so low as to constitute a taking?

The Court disagreed with the second part of Young’s proposition. Justice Peckham explained that the issue was whether enforcement of the statutes would equate to taking property without due process, which would be a federal question. Further, the Court pointed out that the fines were so large that a company who did not follow the law risked bankruptcy. A company who defied the statute and instead challenged them in court — and lost — would risk financial ruin, ensuring that most companies would acquiesce and were therefore without adequate process of law.

Having found that the case did present a federal question within its jurisdiction, the Court moved on to a discussion of the 11th Amendment, the text of which provides states with sovereign immunity and prohibits federal courts from hearing suits against states. Over the years, the Court interpreted the 11th Amendment in many cases, such as clarifying is role as an appellate court in Cohens v. Virginia in 1821. And in 1890, the Court held in Hans v. Louisiana that even though the wording of the 11th Amendment prohibited suits against states by citizens of another state, it likewise prohibited suits by a state’s own citizens. The Court had also been faced with suits against state officials, and held in Osborn v. Bank of the United States that the 11th Amendment applied only when the state is a party of record in the suit. In Osborn, the state of Ohio attempted to tax the Bank of the United States, resulting in a seizure of funds from the bank which the Bank sued to get back. The auditor of Ohio, Osborn, was the named defendant in the suit. The Court had recently ruled that it was unconstitutional for the state to tax the Bank of the United States, so the Osborn court held it was permissible for federal courts to enjoin a state government official from carrying out the unconstitutional action.

Accordingly, the holding in Young was that a government official may be enjoined from enforcing an unconstitutional act:

The answer to all this is the same as made in every case where an official claims to be acting under the authority of the State. The act to be enforced is alleged to be unconstitutional, and, if it be so, the use of the name of the State to enforce an unconstitutional act to the injury of complainants is a proceeding without the authority of, and one which does not affect, the State in its sovereign or governmental capacity. It is simply an illegal act upon the part of a State official in attempting, by the use of the name of the State, to enforce a legislative enactment which is void because unconstitutional. If the act which the state Attorney General seeks to enforce be a violation of the Federal Constitution, the officer, in proceeding under such enactment, comes into conflict with the superior authority of that Constitution, and he is, in that case, stripped of his official or representative character, and is subjected in his person to the consequences of his individual conduct. The State has no power to impart to him any immunity from responsibility to the supreme authority of the United States.

In sum, there is no state authority to permit its employee to commit illegal acts and therefore no immunity can be conferred.

However, Peckham, expounded, the holding did not extend to state courts themselves:

An injunction by a Federal court against a State court would violate the whole scheme of this Government, and it does not follow that, because an individual may be enjoined from doing certain things, a court may be similarly enjoined.

And this is what leads us to the reason why Ex Parte Young is currently enjoying a moment in the sun.

The Supreme Court heard arguments this week about the challenges to SB8, the infamous Texas abortion statute that so cleverly tries to get around judicial review by leaving enforcement up to private citizens rather than state officials. And because Ex Parte Young says federal courts can’t enjoin state courts, Texas argues there is nothing SCOTUS or the lower federal courts can do.

Young was invoked several times during this week’s argument, with both liberal and conservative justices pointing out that the state has attempted to exploit a loophole in its crafting of the law. Justice Kavanaugh opined that the loophole was an end run around the larger principle of Young, which is that “you can get pre-enforcement review in federal court against state enforcement of laws that are assertedly unconstitutional.” Said Justice Kagan, “some geniuses came up with a way to evade the commands of that decision, as well as … the broader principle that states are not to nullify federal constitutional rights.” She then scoffed at the idea that just because “we’ve never seen this before… we can’t do anything about it.”

The state responded that the lack of availability of pre-enforcement review did not leave litigants without an option because, if sued, they could simply challenge the law in state courts and eventually the Supreme Court. But similar to the concern Justice Peckham had about the dangers of challenging the rate statutes in state court only after violating them, the penalties attached to SB8 likewise dissuade anyone from taking that route. Justice Roberts was skeptical that a person should have to violate a law in order to challenge its constitutionality, a point also raised by Peckham in Young.

The justices also noted that the Texas scheme could be used to impact other constitutional laws, including an amicus brief from the pro-gun Firearm Policy Commission, warning that a similar sort of legislation might be used to chill Second Amendment rights.

Kavanaugh pondered whether the holding that state courts cannot be enjoined was still good law, pointing out that decisions over the years have described courts as “enforcing” state laws when presiding over civil lawsuits.

All in all, it was a promising day in Court for the opponents of SB8, and the Court will do what the Court’s do best: consider not the effective outcome of the particular controversy, but the legal ramifications presented. Expect not a definitive statement on Roe, but rather a broader determination of law and the usage of novel mechanisms to get around established precedents.

WW 2: The men who chased down and killed Ahmaud Arbery are on trial this week. Jury selection has begun for the men and women who will decide whether the killers acted appropriately in their “citizen’s arrest” of Arbery when they chased him through their Georgia neighborhood, surrounded him, and shot him to death when he tried to save himself. The case is not only a trial of these men but of the state’s “citizen’s arrest” statute, itself a remnant of Georgia’s racist past.

WW 3: Also on trial is Kyle Rittenhouse, whose claims of self-defense are at the heart of the case charging him with murder of two men and the wounding of another. Both sides gave opening statements this week, with prosecutors painting Rittenhouse as an instigator and a “chaos” tourist as defense attorneys described a selfless teenager who was there to help, and saved himself from becoming a murder victim.

WW 4: A California law requiring protesters to keep at least 30 feet away from vaccination sites has been deemed too restrictive. The law, prohibiting “harassment” of vaccine recipients and staff, went into effect October 8 and was met with immediate First Amendment challenges.

WW 5: A dispute has erupted between Lin Wood and Marjorie Taylor Greene over legal work Wood claims Greene never paid him for, as the Kracken begins to eat itself.