Sure, we all know about Ex parte Young, the 1908 Supreme Court precedent that stands broadly for the proposition that plaintiffs can, without any express statutory cause of action, invoke a form of “nonstatutory review” to sue government officials to enjoin unconstitutional actions. But familiarity has not brought clarity regarding this cornerstone of judicial control of official action. Questions have lingered for a century regarding Ex parte Young’s evasion of the 11th Amendment, the source of its cause of action, its proper scope, and its jurisdictional basis. In just the last year, Ex parte Young made a surprisingly large splash in the news for a 113-year-old federal courts decision as the justices have sharply disputed its parameters in the challenge to Texas’s six-week ban on abortions that culiminated in Whole Woman’s Health v. Jackson (2021). The scope of the federal courts’ equitable power associated with Ex parte Young remains remarkably unsettled.
The Supreme Court has told us that, to determine the scope of the federal courts’ equitable powers, we should look to history—and especially to the English High Court of Chancery circa 1789. In their richly detailed and fascinating article, The Common Law Origins of Ex parte Young, Professor James Pfander and Jacob Wentzel contend that important and influential scholarship, consistent with this guidance, has deployed a narrow form of “equitable originalism” that threatens to unduly limit judicial power to issue injunctive relief to stop constitutional violations.
Two examples of equitable originalism especially concern them. The first is Professor John Harrison’s article, Ex Parte Young, 60 Stan. L. Rev. 989 (2008), which makes an elegant case that many deep puzzles concerning Ex parte Young dissolve if one characterizes it as an exercise of equity’s limited power to issue antisuit injunctions. The second is Professor Samuel Bray’s enormously influential article, Multiple Chancellors: Reforming the National Injunction, 131 Harv. L. Rev. 417 (2017), which concludes courts ought not award “national injunctions” in part because traditional equity did not use injunctions to control a defendant’s conduct vis-à-vis nonparties.
Pfander and Wentzel’s key contention is that equitable originalists have made a mistake by looking exclusively to historical equitable practices to identify history-based limits on the modern scope of federal equitable power. On its face, this claim seems jarring—after all, where else would one find historical limits on equity than the history of equity? The apt title of The Common Law Origins of Ex parte Young gives its game away—Pfander and Wentzel think we should look beyond equity to the common law to determine the limits of modern equity. The basic reason we should do so is that equity and common law are and always have been complementary parts of one broader system of judicial power. Changes in common law will tend to prompt changes in equity, and vice versa. Therefore, one cannot understand the one without understanding the other.
Stripped of its supporting evidence from several centuries of case law, here is the basic story that Pfander and Wentzel tell regarding the shift of judicial controls on administration from common law to equity: At common law, the Court of King’s Bench over the course of the seventeenth and eighteenth centuries developed the administrative writs (i.e., prerogative writs), including certiorari, mandamus, and prohibition, as means for overseeing administrative action. These writs performed functions that we might now expect to be performed by equity. Pfander and Wentzel emphasize that judgments resulting from these writs “bore significant resemblance to injunctions, in that they ordered a defendant to take or not to take specified action, on pain of contempt.” (P. 1287.) The injunction-like effects of these judgments could also benefit nonparties insofar as they were “sometimes thought to disable an illicit course of government action as a general matter.” (P. 1287.)
These administrative writs were embedded in American legal systems at the time of the Founding. Insofar as these tools provided adequate means for judicial authorities to control official action, they preempted the need for equity to intrude. In the latter half of the nineteenth century, however, various forces combined to cause judicial controls of official action to shift from the common law side to equity. One factor was the tendency of the common law writs to become larded with technical difficulties. Another factor was procedural reform as states adopted versions of the Field Code, merging law and equity and encouraging judges to choose from either remedial toolkit. This shift first took hold among the states, with federal courts following in the aftermath of the adoption of general federal question jurisdiction in 1875. As a result, 1908’s Ex parte Young rather than representing an “unprecedented assertion of judicial power,” instead “illustrates the way equity . . . embraced and then replaced the common law writs, becoming the primary mode by which the federal courts in the twentieth century enforced constitutional (and statutory) limits on government action.” (Pp. 1332-33.)
After providing this account, Pfander and Wentzel discuss its implications for debates over the scope of modern equitable power associated with Ex parte Young. Circling back to their concerns regarding the potential limiting effects of equitable traditionalism, they conclude that their common law origin story should lay to rest doubts regarding whether courts can use their equitable authority to order affirmative relief—after all, courts could use mandamus to command officials to take nondiscretionary actions. Similarly, they conclude that practice under the administrative writs suggests the existence of equitable authority to issue injunctions that reach beyond parties. Certiorari, for instance, authorized “quashing orders nullif[ying] the administrative action under review as a general matter and threatened officials with contempt for noncompliance.” (P. 1350.) Such orders “practically ended the order’s legal effect,” and benefited nonparties. (P. 1351.)
Pfander and Wentzel close by reiterating their opening argument that, to determine the scope of the federal courts’ evolving equitable power, one should consider both equitable and common law traditions given that they are both elements of the Article III judicial power. Perhaps stretching a bit to gather some traditionalist support for their holistic approach, Pfander and Wentzel add that Justice Scalia would have agreed with it. For evidence, they note that Justice Scalia cited to discussions of the development of the common law’s prerogative writs to support his declaration in Armstrong v. Exceptional Child Center, Inc. (2015) that the “ability to sue to enjoin unconstitutional actions by state and federal officers is the creation of the courts of equity.” (Pp. 1356-57.)
If you are the sort of person who enjoys learning about the evolution of mandamus at the Court of King’s Bench during the seventeenth century, certiorari practice in New Jersey during the late eighteenth century, or the development of federal injunctive practice in the aftermath of the adoption of general federal question jurisdiction in 1875, you should be sure to read The Common Law Origins of Ex parte Young. And, let’s face it, if you frequent this website and have made it to this end of this little jot, then you very likely are that sort of person (i.e., a very good sort). In this article, you will find a fascinating account of how the federal courts’ equitable power associated with Ex parte Young flowed out of the common law as well as discussion of implications of this account for long lingering jurisprudential puzzles. Of course, you will then want to read (or reread, given this blog’s audience), the excellent “equitable originalist” targets of The Common Law Origins.