Legislative Arrogance and Constitutional Accountability

Abstract

In a disturbing development, state legislatures have begun to enact social policy through laws specially designed to evade constitutional review by the courts. These laws give individuals a private right of action to seek massive damages against those who engage in constitutionally protected but controversial conduct. The coercive nature of potential, massive civil liability has the same effect as an outright ban on constitutionally protected acts. But federal appellate courts have found legal challenges to these laws barred by the doctrines of Article III standing and state sovereign immunity. The resulting legislative arrogation of power is a dangerous trend, forewarned of by the Framers of the Constitution. It contravenes federal supremacy and upsets the balance of power among coordinate branches of government. This Article argues that the courts can address this new phenomenon based on time-honored constitutional principles and a long-overdue reevaluation of the doctrine of Ex parte Young.

Keywords: state legislation, constitutional law, federal supremacy, federalism, article III standing, case or controversy, sovereign immunity, eleventh amendment, ex parte young, okpalobi, abortion, legislative arrogance

JEL Classification: H10, H11, H70, H77, K10, K13, K19, K30, K40, K49