Copyright (c) 2004 Syracuse Law Review
Syracuse Law Review
ARTICLE: UBI REMEDIUM IBI JUS, OR, WHERE THERE'S A REMEDY, THERE'S A RIGHT: A SKEPTIC'S CRITIQUE OF EX PARTE YOUNG
54 Syracuse L. Rev. 215
"It is useful - and often difficult - to bear in mind the distinction between constitutionality and wisdom.
Gerald Gunther 1
Suing a state officer in federal court is the principal means available to the private litigant to force a state government to comply with federal law. Officer suits are, to put the matter bluntly, a way of dodging the protections that the doctrine of state sovereign immunity would otherwise confer on the states in federal court. The enabling theory, as set out in the landmark decision in Ex parte Young, is that a state officer who acts contrary to federal law is behaving ultra vires and, therefore, is subject to suit in his own name in federal court. 2 We deem the state officer, in the often quoted language of Ex parte Young, to be "stripped of his official or representative character . . . ." 3 Chances are the state officer is in trouble not because he was acting ultra vires in a real sense, but because he was enforcing a democratically formed state rule that is now alleged to violate federal law. Untroubled by this analytical anomaly, we compound the Ex parte Young fiction by holding that states are legally incapable of authorizing their agents to violate federal law. 4 As a finishing touch, we wink one more time as federal courts order state officers to comply with federal restrictions such as the Due Process Clause or Equal Protection Clause of ...
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