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Our holding here that Congress did not validly abrogate the State’s
sovereign immunity from suit by private individuals for money damages
under Title I does not mean that persons with disabilities have no federal
recourse against discrimination. Title I of the ADA still prescribes
standards applicable to the States. Those standards can be enforced by the
United States in actions for money damages, as well as by private
individuals in actions for injunctive relief under Ex parte Young.104
A year later in Verizon Maryland Incorporated v. Public Service Commission of Maryland,
the Supreme Court explained that “a court need only conduct a ‘straightforward inquiry into
whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly
characterized as prospective.’”105 Since the prayer for relief asked that the commissioners
be enjoined from enforcing an order in contravention of federal law, the test was met. The
addition of a claim for declaratory relief did not impose on the state any monetary loss for
past breach of its duty. The Court also rejected the argument that Ex parte Young was
inapplicable because the commission’s decision was probably consistent with federal law:
“[T]he inquiry into whether suit lies under Ex parte Young does not include an analysis of
the merits of the claim.”106 The Court concluded that "the doctrine of Ex parte
Young permits Verizon’s suit to go forward against the state commissioners in their official
capacities.”107
While Verizon was a business case, the Supreme Court later reiterated the applicability
of Ex parte Young in the context of a challenge to a consent decree in a Medicaid case. In
2004, the Court ruled that Ex parte Young suits that are resolved in a consent decree may
be enforced by federal courts.108 The consent decree “must spring from, and serve to
resolve, a dispute within the court’s subject-matter jurisdiction; must come within the
general scope of the case made by the pleadings; and must further the objectives of the law
upon which the complaint was based.”109 The Court also rejected the state’s argument that
before a federal court can issue an order requiring a state defendant to take steps to comply
with a consent decree, it must first find an ongoing violation of federal law.110
In Virginia Office for Protection and Advocacy v. Stewart ("VOPA"), the Court upheld the
validity of an Ex parte Young claim in a suit against state officials brought by an
independent state agency.111 The Court held that a suit seeking an injunction to produce
records properly sought prospective relief under Ex parte Young.112
However, in a dissenting opinion by Chief Justice Roberts in Douglas v. Independent Living
Center, four justices suggested that Ex parte Young actions should be limited to cases in
which the state is threatening an enforcement action.113 The dissent would have dismissed a
Medicaid preemption claim. Justice Kennedy, who did not join the ILC dissent, has
expressed the opposite interpretation of Ex parte Young. Justice Kennedy noted in his
concurrence in VOPA that while Ex parte Young was a preemptive defense to an
enforcement action, the Supreme Court has subsequently "expanded the Young exception
far beyond its original office in order to vindicate the federal interest in assuring the
supremacy of [federal] law."114
8.1.E.2. Rejection of the Assault on Ex Parte Young
Encouraged by the limitations placed on the availability of prospective injunctive relief
in Seminole Tribe and Coeur d'Alene, some states mounted a wholesale attack on the ability
of private parties to enforce federal laws under Ex parte Young. The assault against
prospective relief in suits involving safety net and civil rights statutes has been defeated in
lower courts.
Following Seminole Tribe, states argued that the remedial scheme in safety net and civil
rights statutes precluded relief under Ex parte Young. In the context of Medicaid, several
circuit courts have explicitly rejected this argument. The First Circuit stated: “[W]e preserve
three decades of case law refusing to construe the Eleventh Amendment to prohibit suits for
prospective injunctive relief involving [Medicaid].”115 The Eighth Circuit reached the same
conclusion regarding the Child Welfare Act, holding that its remedial scheme was not
similar to that at issue in Seminole Tribe.116 In the context of Title II of the Americans with
Disabilities Act, the Ninth Circuit rejected arguments that the Eleventh Amendment
prohibits prospective relief, finding that the remedial scheme of the Americans with
Disabilities Act was similar to that in Verizon.117
Seizing upon Coeur d'Alene, states have also argued that special sovereign interests counsel
against providing prospective relief to enforce safety net and civil rights statutes. This
argument has been soundly rejected as well. In a Medicaid case, the Tenth Circuit explained
that the “state’s interest in administering a welfare program at least partially funded by the
federal government is not such a core sovereign interest as to preclude the application of Ex
parte Young.”118 The Supreme Court of New Mexico, holding Ex parte Young applicable in
state court, reached the same result, concluding that the Age Discrimination in Employment
Act did not implicate special sovereignty interests akin to those found in Coeur d’Alene.119
Another challenge to Ex parte Young relief fashioned on the concurrences of Justices Scalia
and Thomas in Pharmaceutical Research and Manufacturers of America v. Walsh asserted
that Spending Clause statutes should not be treated as the supreme law of the
land.120 States argued that Spending Clause statutes are akin to contracts between the
states and federal government and therefore unenforceable by individuals. Numerous courts
of appeals have rejected this argument as contrary to binding Supreme Court precedent. The
Fourth Circuit explained that “the Supreme Court has treated the Medicaid Act as ‘supreme’
law and has invalidated conflicting State law under the Supremacy Clause.”121 The Sixth
Circuit stated, “The fact that these provisions have the binding force of law means that
Medicaid and similar federal grant programs are not subject merely to doctrines of contract
interpretation.” The court went on to hold, “We reaffirm well-established precedent holding
that laws validly passed by Congress under its spending powers are supreme law of the
land.”122 Indeed, the Spending Clause of the Constitution is just as enforceable as any other
constitutional provision.123
The Supreme Court recently rejected a state's claim that a Medicaid preemption claim
would interfere with the state's traditional role as an authority in tort law. The Court stated:
"A statute that singles out Medicaid beneficiaries . . . cannot avoid compliance with the
federal [Medicaid] provision merely by relying upon a connection to an area of traditional
state regulation."124
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