Argument recap: The faces of federalism in a state inter-agency dispute

The Supreme Court heard oral argument last week in Virginia Office for Protection and Advocacy v. Stewart.  The case involved a federal suit by an independent state agency, VOPA, against state officials in another state agency under Ex Parte Young.  The state officials balked, claiming that the Young doctrine did not apply to “intramural” disputes between state agencies and that federalism principles barred the suit.  The Fourth Circuit agreed.

At the core of the case are two very different views of the Young doctrine and federalism principles.  On the one hand, VOPA argued that the Young doctrine permits federal suits against state officials for prospective relief—exactly what VOPA sought here.  Through a straightforward application of the Young doctrine, VOPA argued, its case against the state officials can go forward. 

On the other hand, the officials argued that this case, a dispute between two agencies of the same state, raised special federalism concerns.  Under this view, the Court should engage in a “federalism analysis”—paying attention to how federal court intervention into an intramural dispute intrudes on state sovereignty—and reject VOPA’s suit.

Last week’s oral argument reflected these views.  More particularly: The oral argument reflected the Justices’ struggle with just how much of a federalism concern would trigger a federalism analysis—and whether there was a federalism concern here at all.

Thus, for example, the Justices spent quite a bit of time on state choice and whether the suit would impermissibly interfere with the fundamental structure and dignity of state government.  Questions often went far afield from this case, presumably (although not always obviously) to test the limits of the parties’ theories.  (Virginia established VOPA as an independent agency to qualify for federal funds.  As a result, the federal Spending Clause legislation itself, and not just VOPA, sometimes seemed under attack as a violation of federalism principles.)  Justice Alito pressed Assistant to the Solicitor General Ginger Anders, who argued on behalf of the United States as an amicus in support of VOPA, in a line of questions suggesting that the VOPA suit, even if authorized by state law, went too far, asking:  “Do you think the Spending Clause allows the Federal Government to condition the receipt of Federal funds on a State’s agreement to change the structure of State government?”

But choice cuts both ways in this case.  As both Anders and Seth Galanter, who argued on behalf of VOPA, contended, Virginia exercised choice (and sovereignty) by accepting federal funds, establishing VOPA, and granting VOPA authority to sue.  Disallowing these choices would seem to interfere with the affairs of the state even more than allowing VOPA to sue here.  Justice Scalia pulled no punches in making the point in his opening exchange with Earle Getchell, Solicitor General of Virginia:  when Getchell told the Court at the beginning of his argument that “[t]he dignity interest of a sovereign is impaired if it is pitted against itself in the courts of another sovereign without its consent,” Scalia retorted that “[a] dignified sovereign should not agree to the deal. . . . I mean, you know, the Commonwealth had the choice.  It had two choices, as counsel for the Government said.  It could either turn down the money or, if it’s not dignified enough to do that, it could take the money and establish a private organization to do this work instead of a State agency.  So what, you know, what complaint do you have here?”

Justices Ginsburg, Breyer, and Sotomayor also subscribed to this view.  In illustrating the point, Justice Breyer offered a creative hypothetical, positing:  “Suppose you have a State which loves litigation.  48 percent of the population are retired lawyers.  Nothing pleases them more than to have everybody suing everybody else.  So they pass a statute which says, for purposes of lawsuits in this State, every department can sue every other department. . . .  What in the Constitution can prevent the State from deciding to organize what we’ll call ‘The Legal Heaven Way’?”

In addition to state choice as a test for federalism worries, the Court also focused on VOPA’s independence.  (A truly independent VOPA would look less like a state agency suing another state agency—or the state suing itself—and therefore diminish any concerns about federal court intrusion into the affairs of the state.)  Justice Kennedy most vividly illustrated the point in this question to counsel for VOPA, noting that “[i]t’s true, I think that we’ve never said that the identity of—or that the permissibility of an Ex Parte Young suit depends on the identity of the plaintiff; but don’t we have to say that here if we are going to allow the States to structure their—their own governments as they choose?”

Chief Justice Roberts also seemed concerned about VOPA’s real independence, as measured by the Governor’s removal power:  he asked, for example, “[a]re you sure that the governor cannot remove the members of VOPA?”           

If VOPA is not really independent—if the Governor could fire members at will, for example—this would magnify the federalism problems.  Justice Alito seemed to share this concern.  (Chief Justice Roberts was concerned about independence for a different reason: a suit between VOPA and another State agency lacks sufficient adversity between the parties to satisfy Article III’s case-and-controversy requirement.  He asked several questions about this, but he did not seem to pick up very much support from his colleagues.)

On the other side, Justice Breyer returned to Virginia’s choice in authorizing VOPA to sue in the first place, asking “[w]hy, because what’s undignified about allowing the State to live with the choice it made?”  Justices Scalia, Ginsburg, and Sotomayor in different ways seemed to agree.

With all the federalism talk, Justice Sotomayor tried late in the argument to refocus on the straightforward approach under Ex Parte Young.  She pointed out that VOPA’s case was against the individual officers, not the State, and that the federalism worries were not real here.  All that mattered under Ex Parte Young was the nature of the relief (prospective) and the defendants (individual officers, not the State).  Justices Ginsburg and Breyer seemed to agree.  Justice Scalia went further and questioned why the straightforward application of Ex Parte Young represented an extension of the doctrine (as the officers’ counsel and Justice Kennedy argued).  He asked why “is it somehow a—a greater infringement upon a State sovereignty to allow a State to be sued in Federal court by a private individual,” but it nonetheless “somehow offends State sovereignty more when—when you allow a State agency to sue a State?” 

At one point, but just briefly, the argument turned to congressional authority in relation to the states.  Justice Ginsburg raised the point late in the argument, concerned that the officers’ position would mean that Congress has less authority to encourage the creation of agencies like VOPA and their attendant right to sue. 

All in all, the Court seemed surprisingly willing to engage with federalism concerns, given the limited Eleventh Amendment issue before it.  If the Court rules based on federalism principles, it will likely split between those who see VOPA’s suit as an infringement on state sovereignty and those who see VOPA’s suit as a result of the State’s choice to accept federal funds to establish VOPA in the first place.  Based on the questions at argument, this latter view could get as many as five votes. 

If on the other hand, the Court rules based on a straightforward application of Ex Parte Young, the Court may split between those who see VOPA’s suit as an unwarranted extension of the doctrine and those who see it as a rote application of the doctrine.  Again, the latter view could get as many as (or more than) five votes. 

The five-vote prediction in favor of the VOPA suit includes Justice Scalia.  (He seemed to articulate a strong view that the VOPA suit was the result of state choice, and that it therefore did not violate federalism principles.)  If Justice Scalia goes the other way, however, and if other justices vote as their questions suggest, the Court could split four-four (because Justice Kagan is recused).  If so, the Fourth Circuit’s ruling, along with its “federalism analysis,” would remain on the books, and the VOPA suit would be dismissed.