Solimine on Congress, Ex Parte Young, and the Fate of the Three-Judge District Court

Michael E. Solimine, University of Cincinnati College of Law, has posted a new paper, Congress, Ex Parte Young, and the Fate of the Three-Judge District Court. Here's the abstract:

In 1908 the Supreme Court held in Ex parte Young that a federal judge could enjoin a state attorney general from enforcing an unconstitutional state statute, notwithstanding sovereign immunity doctrines which would normally bar such relief. The case was sharply criticized at the time, as another example of an activist federal judiciary striking down Progressive Era regulatory legislation. Congress enacted legislation requiring that Ex parte Young injunctions could only be issued by a specially convened three-judge district court. Despite the initial hostility, as has been recounted by Owen Fiss, William Ross, and other scholars, the injunctive power recognized in the case came to be regarded as a powerful and necessary tool to enforce federal civil rights laws, especially in the face of recalcitrant state authorities. In contrast, the history of the three-judge district court has received less attention and has had a different arc. During the Civil Rights era, some federal judges, particularly in the deep South, were perceived as being hostile to the enforcement of federal law, and a three-judge court was considered by many to be a necessary tool to marginalize such judges and optimize enforcement of federal legal norms. The usefulness of the court was later questioned by the leadership of the federal judiciary itself, due to the administrative burdens of convening such courts, and the perception that its role in enforcing federal law was no longer necessary. Responding to those concerns, and over the opposition of the NAACP, Congress in 1976 sharply restricted the jurisdictional coverage of the court. The changes in the three-judge district court demonstrate the importance of appreciating the motivations and effects of Congressional regulation of the institutional structures of the federal courts, and that of interest groups in influencing Congress.