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40 U. Tol. L. Rev. 819 (2009)
Ex Parte Young as a Tool to Enforce Safety-Net and Civil-Rights Statutes

handle is hein.journals/utol40 and id is 827 raw text is: 





                                ARTICLES


  EXPARTE YOUNG AS A TOOL TO ENFORCE SAFETY-
               NET AND CIVIL-RIGHTS STATUTES


                                 Rochelle Bobroff*



                                 I. INTRODUCTION

     T    0 this day, even the most conservative' Justices of the U.S. Supreme
       Court continue to champion the viability of Ex parte Young2 to provide
prospective injunctive relief to enforce safety-net3 and civil-rights statutes.4 The
pleadings of conservative scholars urging the Court to gut Ex parte Young have


     * Directing Attorney, Herbert Semmel Federal Rights Project, National Senior Citizens Law
Center. I gratefully acknowledge comments from my colleagues Simon Lazarus and Harper Jean
Tobin. Joshua Sear provided both helpful comments and excellent research assistance. Rebecca
Sickenberger also contributed valuable research assistance.
    1. In this article, I use the terms conservative and liberal simply to distinguish two groups
of Justices who frequently voted together in safety-net and civil-rights cases.
    2. 209 U.S. 123 (1908).
    3. Safety-net statutes provide financial support, such as direct income payments, payment for
medical care, or subsidies for housing, to people whose income is below specified eligibility
criteria. These programs are funded by a combination of state and federal funds. See William P.
Gunnar, The Fundamental Law that Shapes the United States Health Care System: Is Universal
Health Care Realistic within the Established Paradigm, 15 ANNALS HEALTH L. 151, 174 (2006);
Bert B. Lockwood, Jr., R. Collins Owens, III & Grace A. Severyn, Litigating State Constitutional
Rights to Happiness and Safety: A Strategy for Ensuring the Provision of Basic Needs to the Poor,
2 WM. & MARY BILL RTS. J. 1, 3 n.3 (1993).
    4. 1 use the term civil rights broadly, to include a wide range of laws that are protective of
individual rights. I focus primarily on the Americans with Disabilities Act (ADA) and the Age
Discrimination in Employment Act (ADEA). Because courts do not subject discrimination against
older persons and people with disabilities to the heightened levels of scrutiny applicable to race and
gender discrimination, individuals seeking recovery  under federal statutes prohibiting
discrimination based on age and disability have relied heavily on the Supreme Court's holding in
Ex parte Young. Compare Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 92 (2000) (holding that the
ADEA is not a valid exercise of Congress's power under Section 5 of the Fourteenth Amendment
and therefore cannot have the effect of abrogating state sovereign immunity), and Bd. of Trs. of
Univ. of Ala. v. Garrett, 531 U.S. 356, 374 & n.9 (2001) (holding the ADA did not validly abrogate
state immunity under the Fourteenth Amendment, but a person with disabilities may obtain
injunctive relief under Ex parte Young), with Nev. Dep't of Human Res. v. Hibbs, 538 U.S. 721,

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