Seminole speaks to sovereign immunity and Ex parte Young

St. John's Law Review, Fall 1997 by Baker, Wayne L

A. Justice Souter Responds in Dissent

Justice Souter in dissent first suggests the rule of Ex parte Young, being historically rooted in our jurisprudence, "should not be easily displaced, if ... at all, for it marks the frontier of the enforceability of federal law against sometimes competing state policies."140 For Justice Souter, the applicability of Young should be the baseline default position, rather than the majority's requirement of a clear showing of Congressional intent to allow suit to proceed against a state officer.141 Thus, "if Congress intends to alter the `usual constitutional balance between the States and the Federal Government,' it must make its intention to do so `unmistakably clear in the language of the statute.'"142 Comparing Seminole to Young and its progeny, Justice Souter finds no meritorious distinction, for the relief requested is not retrospective,l43 and although Young involved a negative injunction-precluding official action-affirmative injunctions ordering an official to act have also been countenanced by this Court.144

Justice Souter addressed in seriatim the majority's three reasons why the intricate procedures of IGRA displace the rule of Ex parte Young: [1] "[t]he procedures ... implicate a rule against judicial creativity in devising supplementary procedures; ... [2] applying Young would nullify the statutory procedures; ... [and] [3] the statutory provisions ... reveal a congressional intent to preclude the application of Young."145 In support of the first reason Justice Rehnquist cites Schweiker v. Chilicky;l46 however Justice Souter readily distinguishes Chilicky as seeking a supplemental remedy, requiring an affirmative justification based upon a Bivens147 model.148 Young provides prospective enforcement of federal law, not retrospective monetary relief. Specifically, "Young would not function here to provide a merely supplementary regime of compensation to deter illegal action, but the sole jurisdictional basis for an Article III court's enforcement of a clear federal statutory obligation, without which a congressional act would be rendered a nullity in a federal court."149

Conversely, Bivens detailed two situations in which causes of action for constitutional violations would not exist: (1) where there are "special factors counseling [sic] hesitation in the absence of affirmative action by Congress,"150 and (2) if Congress specified an alternative mechanism providing an equally effective substitute.151 The language of Bivens contains its own exceptions,l52 one of which accommodated Chilicky,l53 however, no analogy to Ex parte Young is apposite.

Secondly, the Court proffered that utilization of Young would allow litigants to ignore the "intricate procedures" of IGRA. Young, Justice Souter counters, does not establish a new cause of action, rather it provides a jurisdictional basis to proceed against the state officer.l54 The procedural intricacies of IGRA still have to be complied with, Young simply establishes the jurisdiction needed to challenge enforcement of those procedures. Souter offered in analogy the statutory restrictions of 28 U.S.C. 2254(b) circumscribing habeas corpus petitions, in which case the restrictions apply, notwithstanding that Young effectively provides the jurisdictional basis.l55 Thirdly, the Court suggests that Congress intended that IGRA displace Young.156 Justice Souter propounds the opposite conclusion.l57 Finally, Justice Souter refers to the time honored traditions of "read[ing] ambiguous statutes to avoid constitutional infirmity," and "choos[ing] any reasonable construction of a statute [rather than] ... confront a contested constitutional issue."158 Implementation of either doctrine, he asserts, would require Young's application.l59