The faculty at Marquette Law School welcomed Professor Marcia McCormick of the Samford University’s Cumberland School of Law to a faculty workshop this past Tuesday. Professor McCormick, who focuses on the law of federal courts and employment discrimination, among other areas, discussed her new paper on the persistence of the case of Ex Parte Young in the face of the Federalism Revolution of the last two decades or so.
In her presentation, Professor McCormcick described the large number of U.S. Supreme Court decisions in the last twenty-five years that have touched on the relationship between the federal government and the states. In this time, the Court seems to have substantially limited the power of the federal government and expanded that of the states, as many Commerce Clause, Tenth Amendment, and Eleventh Amendment cases suggest.
She also maintained that despite what were seen by many to be revolutionary shifts, two doctrines that provide great power to the federal government seem to have survived so far with little or no change: Congress’ power under the Spending Clause to require states to engage in or refrain from engaging in certain conduct; and the federal courts’ power under Ex Parte Young to hear suits by private parties to force state officials to follow federal law, including laws created under the Spending Clause. The combination of these two doctrines provides for quite a bit of federal power, she argued, and it is the extent of that power which makes the continued survival of the doctrines so surprising.
Professor McCormick then explored the extent of power the federal courts and Congress can exercise over the states through the use of those combined doctrines and suggested some reasons the Court has not removed that power. In this vein, she argued that it was likely that the Court sees this limited federal power as a necessary check on the states to ensure the supremacy of federal law, to maximize the efficient use of both federal and state power, and to maximize accountability and the rule of law for both the states and federal government.
A lively question and answer session followed Professor McCormick’s talk. I have it on good authority that Professor McCormick’s favorite culinary adventure involved Kopp’s Custard in Greenfield.