Originally uploaded at SSRN.

Abstract

For more than a century, federal courts have relied on the Ex parte Young doctrine to provide authority to protect individual constitutional rights against state infringement. Ex parte Young provides the primary mechanism for federal judicial review of allegedly unconstitutional state laws, permitting persons whose federal rights are affected by state law to seek an injunction in federal court against the state officials charged with enforcing the law. By some accounts, the Ex parte Young doctrine is an exception to sovereign immunity; by others, it is merely an example of the “traditional tool of equity” known as the anti-suit injunction. Regardless of how the doctrine is conceptualized, for more than a century it “has been accepted as necessary to permit the federal courts to vindicate federal rights and hold state officials responsible to ‘the supreme authority of the United States.’” Indeed, this doctrine is the principal mechanism for enforcing the Supremacy Clause—ensuring that federal constitutional rules are supreme over conflicting state law rules.

However, a recent innovation—enacted thus far by at least five states, including Texas and California—threatens to eliminate federal judicial review of arguably unconstitutional state laws. In a nutshell, these states have attempted to circumvent Ex parte Young by privatizing enforcement of state laws that raise significant federal constitutional questions—in other words, by prohibiting state officials from enforcing such laws and turning over the state’s enforcement power to private citizens. By empowering everyone but state officials to enforce state law, this statutory structure is designed to prevent federal judicial review under Ex parte Young. If successful, this gambit threatens the entire regime of federal judicial review of the constitutionality of state laws—and with it, the fundamental principle that federal law is supreme over state law.

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