EX PARTE YOUNG STRIPPING DR. & 42 USC 1983, CIVIL RIGHTS ACTIONS

From the Conlawprof's list of Nov. 18, 2004, where the discussion is informal, comes this thoughtful exchange which I hope the contributors won't mind my sharing, since the list contains a notice that posts to the Web cannot be considered private, and this blog is addressed to law students, primarily, who would appreciate, I believe, the professors' efforts at clarification.  A professor inquired as follows:

Subject: Why use Ex Parte Young Today independently of sect. 1983 [42 USC]

...a student asked me after class yesterday why anyone would resort to Ex Parte Young today given the availability of injunctions against a State officer under section 1983. 

The answer that I gave was that section 1983 today is essentially read with the gloss of Ex Parte Young saying injunctive relief is available -- that there would not be any situation today where one would recur to Ex Parte Young because section 1983 was unavailable. 

Section 1983 today covers any situation for which Ex Parte Young might once have been required and much more. 

-- But I have also seen pleadings that have separate counts labeled Ex Parte Young and 1983, which makes no sense given my answer.

Prof. Douglas Laycock of the University of Texas, Austin, responded:

This is a remedies question.  1983 and Ex parte Young address different issues and are relevant at different conceptual stages of the litigation. 1983 creates a cause of action; Ex parte Young creates a way around sovereign immunity. 

Plaintiff needs both. 

1983 does not override immunity; it does not even create a cause of action against the state itself.  Will v. Michigan Dept. of Police. 

Injunctions against state officials to control state policy are possible under 1983 only because Ex parte Young holds that suits for such injunctions are not suits against the state.

Similarly, Ex parte Young does not create a cause of action. 

You don't sue a defendant for Ex parte Young, or for violating Ex parte Young; you sue a defendant for allegedly violating some applicable substantive law.

1983 creates a general cause of action for violations of federal law conducted under color of state law. 

With respect to federal officials, the cause of action is implied directly from the substantive constitutional provision, without any statute equivalent to 1983, and Ex Parte Young evades sovereign immunity in the same way as with respect to the states.

Perhaps the courts could imply causes of action against state officials in the same way, and many of the older cases just assume the existence of a cause of action for injunctive relief, without citation to 1983 or anything else. 

But as the Court has become more and more hostile to implied rights of action, 1983 is the answer:  Congress created the cause of action.

It does not make any sense to have one claim under 1983 and one claim under Ex parte Young. 

But if the 1983 claim were for damages (against a local government or against an official in his personal capacity), and the Ex parte Young claim were for an injunction (against an official in his official capacity), then this might just be an awkward way of labeling a sensible distinction. 

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Comments

[rs]

It's so nice to see someone getting a benefit from this blog.

Prof. Douglas Laycock is one of the great law explainers, don't you think? He represented the church that wanted to expand in the City of Boerne vs. Flores case. You remember: RFRA, the remedy must be "congruent and proportional" to the harm when it comes to Congress's Section 5 power to enforce Amendment 15 using "appropriate" means, otherwise Congress doesn't have the power.

Thanks for the comment.

[Marina]

Thank you *very much* for posting this information! I was wondering exactly this while reading my Federal Courts homework.