Ex parte Young and the responsible executive officer

One feature of standing or sovereign immunity in Ex parte Young actions is identifying and suing the responsible executive officer. Plaintiff must show that the named defendant has the particular legal duty to enforce the particular challenged legal provision. As we said in class, this is easy for federal law, because the chain of enforcement authority runs through agency and cabinet heads and to the president (in whom the executive power is "vested" under Art. II). It is harder at the state level, where executive power is divided among state officers and between state and local government.

The Fifth Circuit has been especially strict on this, as indicated in this case holding that plaintiffs cannot sue the governor over an executive order the governor issued, because the EO ordered the state Department of Public Safety to enforce it.