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Solving the Mystery of How Ex Parte Young Survived the Federalism Revolution

Marcia L. McCormick, St. Louis University School of Law

Abstract

It has been called alternatively the New Federalism and the Federalism Revolution by scholars and pundits alike, and it describes the large number of Supreme Court decisions in the last twenty-five years or so that have touched on the relationship between the federal government and the states. Many of these Commerce Clause, Tenth Amendment, and Eleventh Amendment cases suggest that the Court substantially limited the power of the federal government and expanded that of the states.

Despite what many saw as revolutionary shifts, two doctrines that provide great power to the federal government seem to have survived so far with little or no change: Congress's power under the Spending Clause to spur states to engage or refrain from engaging in certain conduct; and the federal courts' power under Ex parte Young to hear private parties' suits seeking to force state officials to follow federal law, including laws created under the Spending Clause. The combination of these two doctrines provides for significant federal power, the extent of which makes the doctrine's continued survival in the era of New Federalism surprising.

This article explores the extent of power the federal courts and Congress can exercise over the states through the use of those combined doctrines and suggests reasons the Court has not removed that power. The Court likely sees this expression of federal power as a check on the states, necessary to ensure the supremacy of federal law, maximize the efficient use of both federal and state power, and maximize accountability and the rule of law for both the states and the federal government.

Suggested Citation

Marcia L. McCormick. "Solving the Mystery of How Ex Parte Young Survived the Federalism Revolution" University of Toledo Law Review 40 (2009): 909-929.
Available at: http://works.bepress.com/marcia_mccormick/6