A person wishing to challenge the constitutionality of a law that regulates their conduct typically may sue the government official responsible for enforcing that provision for declaratory and injunctive relief pursuant to Ex parte Young. This approach is generally unavailable, however, when a plaintiff seeks preenforcement relief against laws that are enforceable exclusively through a private right of action. In such cases, there is no government official against whom to bring a typical Young claim, and constraints such as sovereign immunity and justiciability requirements often pose insurmountable obstacles. A person subject to an apparently unconstitu-tional law that is enforced solely through private litigation therefore faces the choice of either complying with the provision, thereby foregoing the exercise of their constitutional rights, or exercising their claimed rights in violation of the provision and running the risk of incurring potentially substantial liability if a court ultimately upholds the provision’s validity.
The most direct way to alleviate this problem would be for the Court to expand Ex parte Young’s exception to sovereign immunity to allow rightsholders to sue some designated official to challenge laws that are only enforceable through private rights of action. This approach faces a series of serious doctrinal challenges, however. Even if the Court is unwilling to go so far, Young itself may nevertheless provide the foundation for at least partly resolving this dilemma. Young is best known for creating its broadly used exception to state sovereign immunity. But Young also suggested that, at least under certain circumstances, a person has the due process right to obtain a judicial ruling concerning a legal provision’s validity without having to incur the risk of potentially substantial liability by violating it. The Court applied this principle in several post-Young cases, holding that when a party is unable to bring a preenforcement challenge to a legal provision under Young, they may raise their constitutional challenge as a defense in enforcement proceedings. Even if the court rejects that constitutional defense, the party is protected from substantial liability for violations of the challenged provision that occurred prior to the court’s ruling. Some modern courts continue to recognize this “constitutional tolling” doctrine. By expressly reaffirming—with appropriate modifications and restrictions—the constitutional tolling doctrine, the Court could mitigate the potential chill to constitutional rights posed by laws that appear to regulate constitutionally protected conduct and are enforceable solely through private rights of action. And Congress could further help protect constitutional rights by enacting a federal statute abrogating state sovereign immunity against preenforcement constitutional challenges to such provisions.
Michael T. Morley,
Constitutional Tolling and Preenforcement Challenges to Private Rights of Action,
Notre Dame L. Rev.
Available at: https://scholarship.law.nd.edu/ndlr/vol97/iss5/3