Monday, March 22, 2010
Professor Michael E. Solimine (University of Cincinnati College of Law) has posted "Ex Parte Young: An Interbranch Perspective" on SSRN. It is published in the University of Toledo Law Review.
The abstract states:
Ex parte Young (1908) is an honored icon of the federal courts canon, because it empowers federal courts to enforce the Constitution against the states. But it has had a strange and ironic career. It is not simply because the case was heavily criticized by liberals at the time, since it struck down Progressive Era legislation. Nor was it that liberals, decades later, resurrected the case to empower federal judges to enjoin discriminatory state action during the Civil Rights Era. It is also that the controversy over the decision engaged the critical response of the other branches of the federal government. This article, a contribution to a symposium on the centennial of Ex parte Young, addresses the waxing and waning of the case, focusing on the reaction of the other branches, a reaction that, in various ways, continued for many decades. Part I of the article discusses the varying litigation strategies of litigants, with different ideological agendas, who sought to utilize Ex parte Young-type relief throughout the twentieth century. Part II addresses the response of Congress to the decision, principally by the enactment of the three-judge district court to hear cases seeking that relief. Part III considers how the Executive branch, through the Department of Justice, has responded to the case and its progeny. The article concludes by situating the interbranch reaction to Ex parte Young in the literature on the various relationships and interactions between the courts, Congress, and the Presidency.