“Not being a State often places the District of Columbia at a disadvantage. In this case, however, it works to its benefit.”1 So began the court’s opinion in Garnett v. Zeilinger.2 In Garnett, several D.C. residents and a nonprofit organization sued the District for failure to meet strict deadlines set by the Supplemental Nutrition Assistance Program (SNAP) Act3 for processing benefit applications.4 Moving under 42 U.S.C. § 1983, the plaintiffs sought an injunction requiring the District to comply with the statutory deadlines.5 If D.C. were a state, the plaintiffs “would be entitled to summary judgment if they could show that the State has fallen short of absolute compliance.”6 “But, because D.C. is a municipality,” they bore the added burden of “establish[ing] that the failure resulted from a policy or practice adopted by District officials.”7 Despite extensive discovery, the plaintiffs could not prove that a policy or practice caused D.C.’s violations of the SNAP Act.8 The court entered summary judgment for the District.9
Cases like Garnett illustrate a recurring and consequential gap in the enforcement of federal rights against municipalities. While Monell v. Department of Social Services10 held that municipalities were “persons” suable under § 1983,11 it also held that a municipality could be liable only where “a government’s policy or custom” created the violation.12 Significant scholarly attention has been devoted to the gauntlet plaintiffs must run to satisfy Monell in actions for damages.13 Because Monell’s policy or custom requirement applies equally to claims for injunctive relief,14 those seeking equitable remedies are likewise left out in the cold.
This Note posits that plaintiffs seeking prospective relief against municipalities needn’t worry about Monell’s requirements because they needn’t rely on § 1983 at all. Rather, they can — and should — sue directly in equity. As the Court articulated in Armstrong v. Exceptional Child Center, Inc.,15 “in a proper case, relief may be given in a court of equity . . . to prevent an injurious act by a public officer.”16 Equitable relief to enforce the Federal Constitution and laws is presumptively available against federal and state officials.17 Nothing in the history or background principles of equity requires differential treatment for municipalities.
This argument might seem obvious. But it is also theoretically underdeveloped. Only two federal courts of appeals have (tangentially) recognized the power of federal courts to enjoin municipalities absent a statutory cause of action,18 and after Trump v. CASA, Inc.,19 such specific equitable remedies must have “a historical pedigree.”20 Today, plaintiffs continue to use § 1983 as their primary cause of action against municipalities — often to limited effect.21 Closing this gap is crucial because municipalities are closer to people’s everyday lives than any other level of government in our federal system. There are around fourteen million local employees in the United States, compared to five-and-a-half million state and two million federal employees.22 Ever-expanding local governments decide key questions of housing, education, policing, incarceration, and infrastructure,23 making it all the more important for plaintiffs to have a means of enjoining unlawful municipal action. The question is whether they can do so even when Monell’s requirements are not met.
History shows they can. Part I explains the unique status of municipal defendants and the emergence of Monell as an exceptionally high barrier to relief. Part II outlines CASA’s historical test for the scope of equitable remedies and applies that test to injunctive relief against municipalities. Part III touches on the possibility that § 1983 displaced equitable relief. The Note concludes that, given over a century of courts doing as much, a federal court today can enjoin a municipal defendant without satisfying Monell’s strictures.
I. The Puzzle of Municipal Defendants
A municipality is a local political entity, such as a city, town, or county, established by state charter with “the autonomous authority to administer local affairs.”24 “[M]unicipal defendant[s],” the term used by this Note, refers to municipalities themselves, municipal agencies or governing bodies (such as police departments or school boards), and municipal officers in their official capacities, as a suit against any one of these entities is a suit against the municipality itself.25
The familiar rules of the road for suing state and federal government defendants do not apply to municipalities. State and federal governments are immune from suit absent waiver or abrogation of sovereign immunity.26 But federal courts can enjoin state or federal officials who act unlawfully because their misconduct “strip[s]” them “of [their] official or representative character” under the rule of Ex parte Young.27 Young contained two separate holdings, though the distinction is sometimes overlooked.28 First, when a state or federal official behaves unconstitutionally, they cannot claim sovereign immunity;29 and second, a plaintiff may enjoin that official directly and without a statutory cause of action.30 Young did not make clear whether the latter was grounded in equity, federal question jurisdiction, the Constitution, or all of the above.31 More recently, in Armstrong, the Supreme Court suggested that “[t]he ability to sue to enjoin unconstitutional actions by state and federal officers is the creation of courts of equity.”32 And though the Court never mentioned municipal officials, Armstrong did quote an 1845 decision, Carroll v. Safford,33 which concerned a municipal defendant,34 in stating more broadly that “relief may be given in a court of equity . . . to prevent an injurious act by a public officer.”35
As creatures of statute, rather than true sovereigns, municipalities have no claim to sovereign immunity.36 This makes Young’s sovereign immunity holding unnecessary when suing municipalities,37 which in turn suggests that municipalities should be easier to sue than states or the federal government. After all, sovereign immunity and causes of action are analytically distinct inquiries.38
But for the past few decades, plaintiffs have nearly exclusively relied upon § 1983 to enjoin unlawful municipal actions instead of the freestanding equitable remedy greenlit by Young and reinforced in Armstrong.39 Perhaps this is because, though Young spoke to both the defendant’s sovereign immunity and the plaintiff’s cause of action, “the analysis of each question tends to merge with the analysis of the other.”40 Since the first holding is irrelevant to municipalities, the second holding has also been lost. Perhaps the Court’s 1978 determination41 that municipalities were persons suable under § 1983 made the statute a reliable way to get municipalities into court. Whatever the reason, because litigation against municipal defendants has taken place primarily under § 1983, it is governed by Monell’s policy or custom requirement. The result has been pervasive gaps in the enforcement of federal rights against municipalities — gaps that equity can fill.
This Part examines those gaps and what a solution might look like. It details recent history where equity, rather than § 1983, was the default, explains the impact of Monell, and examines subsequent circuit precedent holding that municipalities are proper defendants in equity.
A. The School Desegregation Cases
In the most famous case involving a municipality, the plaintiffs in Brown v. Board of Education42 sued the Topeka Board of Education to enjoin its policy of school segregation using a then-dormant statute, 42 U.S.C. § 1983.43 Section 1983 explicitly provides for equitable relief.44 So it seemed an ideal cause of action for school desegregation plaintiffs, provided municipal entities were persons suable under § 1983.
Ten years after the Brown complaint was filed, Monroe v. Pape45 held that they were not.46 Yet school desegregation cases commanding equitable enforcement of Brown did not suddenly cease once § 1983 became unavailable. In Griffin v. County School Board,47 the Court overturned the Fourth Circuit’s reversal of a Virginia district court’s injunction against county officials who closed public schools rather than desegregate.48 Neither the Court, nor the Fourth Circuit, nor Judge Bell’s dissent in the Fourth Circuit even mentioned § 1983.49 Instead, the Court seemed assured of a federal court’s power to enjoin a municipality’s constitutional violation: “We have no doubt of the power of the court to give this relief . . . . It has long been established that actions against a county can be maintained in United States courts in order to vindicate federally guaranteed rights.”50 Judge Bell’s dissent below pointed to the long history of federal courts enjoining municipalities.51
In the decade following Griffin, the Supreme Court became more aggressive in ensuring that district courts enjoined unconstitutional segregationist practices by local school boards.52 Nowhere in these cases did the Court cite § 1983. Nor could it have, given Monroe’s holding that municipalities were not persons under § 1983.53 And nowhere in the briefs did any school board protest that the plaintiffs lacked a cause of action in equity when § 1983 was unavailing.54 It is difficult to resist the conclusion that this was because the law was settled. The “existing powers of federal courts to enforce the Equal Protection Clause” — “their historic equitable remedial powers” — were all that was needed for a federal court to enjoin unconstitutional action by municipalities,55 even without a congressionally provided cause of action.
B. The Problems of Monell and Humphries
The trend shifted in 1978, as the Court held in Monell that municipalities were persons who could be sued under § 1983.56 But that reversal came with a qualification. Anxious about legislative history suggesting that the Forty-Second Congress did not wish to impose respondeat superior liability on municipalities,57 the Court held “that a local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government’s policy or custom . . . inflicts the injury that the government as an entity is responsible under § 1983.”58
Subsequent cases established a burdensome framework for proving this policy or custom.59 If plaintiffs cannot point to a written municipal policy violating the Constitution or federal laws, they must show that a final policymaker committed, ordered, ratified, or delegated a violation,60 that a municipal custom “is so widespread as to have the force of law,”61 or that a municipality failed to train its officers such that it exhibited “deliberate indifference” to a violation.62
In the decades since it was handed down, Monell has proven a near-fatal barrier to plaintiffs’ suits.63 As Professor Pamela S. Karlan writes, while “governments are repeat players, plaintiffs are not,” such that “individual plaintiffs may be unlikely to have sufficient information to plead, let alone to prove without substantial discovery, such a de facto policy.”64 Data substantiate this claim: Analyzing 1,200 police misconduct lawsuits, Professor Joanna C. Schwartz found that “[i]t is far more difficult for plaintiffs to prove Monell claims against municipalities than it is for plaintiffs to defeat qualified immunity,”65 and that plaintiffs routinely scrapped their Monell claims as their cases progressed.66
Consequentially, the Court ruled in Los Angeles County v. Humphries67 that Monell also applies when § 1983 plaintiffs seek injunctive relief.68 Justice Breyer approached the case as one of straightforward statutory interpretation.69 Brushing aside respondents’ warning that such an interpretation would “leave some set of ongoing constitutional violations beyond redress,” he maintained that “respondents ha[d] not presented . . . any actual or hypothetical example that provides serious cause for concern.”70
While Justice Breyer may have been right about § 1983’s text, he was wrong about Humphries’s effect. For example, in Cain v. City of New Orleans,71 former criminal defendants sought to enjoin an allegedly unconstitutional system of jailing indigents and enforcing preset bonds.72 Though the court held that the plaintiffs had plausibly alleged a constitutional violation, the need to prove deliberate indifference by the city doomed their claims.73 The plaintiffs could seek equitable relief only against the sheriff, who had acted pursuant to state law when he collected three percent of every bond and distributed the proceeds to the judges hearing plaintiffs’ cases.74 Cain is not alone in illustrating how cases fall through the cracks when municipal defendants are held to Monell’s liability standard.75
Taken to its logical conclusion, Humphries would allow the following situation to go unremedied under § 1983: A city police officer has a practice of giving speeding tickets to Black motorists and warnings to all other motorists. The City has a formal antidiscrimination policy and regularly trains its officers on racial sensitivity. If the officer were a state official, Black motorists could enjoin his unconstitutional actions in equity, notwithstanding potential justiciability issues.76 But because the officer is a municipal official acting in defiance of the City’s stated policy, he is not suable under § 1983.
This puts plaintiffs in a difficult position, for § 1983 suits against municipal defendants can trigger Monell’s policy or custom requirement no matter how they’re pled. Several courts have held that government actors must be sued in their official capacity to warrant injunctive relief,77 but official-capacity actions against municipal officers are actions against municipalities.78 Getting out of the § 1983 minefield may be plaintiffs’ best path forward. The question is whether an alternative path exists.
C. Equitable Alternatives
There is clearly a right to “injunctive relief against state [and federal] officers” who violate the federal Constitution and laws.79 Whether that is true for municipal defendants has not been the subject of great scholarly or judicial attention.
Among the federal courts of appeals, the Fifth and Ninth Circuits have come closest to recognizing equitable jurisdiction over unlawful municipal conduct, separate and apart from any statutory cause of action.80 In Green Valley Special Utility District v. City of Schertz,81 the Fifth Circuit endorsed “a cause of action against [municipal officials] at equity, regardless of whether” the plaintiff could “invoke § 1983.”82 The court recognized that under prevailing circuit precedent — functionally abrogated by Monell but never formally repudiated83 — municipalities and municipal officials were “not proper § 1983 defendants.”84 No matter; Ex parte Young and Armstrong independently authorized injunctive relief.85 Likewise, in Moore v. Urquhart,86 the Ninth Circuit held that the plaintiffs, who sought declaratory and injunctive relief against a local sheriff, “d[id] not need a statutory cause of action.”87 Instead, they could “rely on the judge-made cause of action recognized in Ex parte Young,” which allowed “courts of equity to enjoin enforcement of state statutes that violate the Constitution or conflict with other federal laws.”88 Because injunctive claims under Young could “be brought against both state and county officials,” the court thought it “unnecessary . . . to resolve the parties’ dispute over whether the Sheriff act[ed] on behalf of” the county or the state.89
In both decisions, the court’s analysis was thin.90 And subsequent briefing over the Moore defendant’s unsuccessful petition for certiorari casts doubt on whether the plaintiffs truly sought — and whether the Ninth Circuit in fact embraced — applying Young to municipalities.91 Regardless, CASA made clear that modern equitable relief must have an adequate “historical pedigree,”92 potentially casting doubt on whatever remedy was recognized in Moore and Green Valley. That history is the subject of Part II.
II. Recovering the History ofInjunctions Against Municipalities
In CASA, the Supreme Court held that universal injunctions exceeded the scope of equitable authority conferred upon federal courts by the 1789 Judiciary Act.93 Relying on Grupo Mexicano de Desarrollo, S.A. v. Alliance Bond Fund, Inc.,94 the Court confirmed that the Act authorized “only those sorts of equitable remedies ‘traditionally accorded by courts of equity’ at our country’s inception,” or those which are “‘analogous’ to the relief issued ‘by the High Court of Chancery in England’” in 1789.95 Accordingly, an equitable remedy today “need not have an exact historical match, but . . . must have a founding-era antecedent.”96
The Roberts Court’s turn to this sort of equitable originalism echoes its transformation of other fields of law.97 Its precise method is also rather unsettled. At first blush, CASA announced a straightforward, timebound inquiry: Courts must evaluate equitable practice in 1789.98 Yet that is not what CASA did. Professors Jack Goldsmith and Mila Sohoni have each observed that despite identifying 1789 as its lodestar, the Court “examined developments into the twentieth century”99 and “did not limit itself to the landscape of equity” in 1789;100 “it barely looked at the state of American equity as of 1789 at all.”101 To illustrate the course charted by courts of equity at the Founding, for instance, the Court cited a case from 1897.102 So while a court’s analysis should begin in 1789, CASA does not foreclose, and may even encourage, considering subsequent developments in equitable practice.103
Noting another methodological wrinkle, Goldsmith argues that “[o]n the Court’s logic that jurisdictional statutes authorize equitable remedies, it should have looked to the state of remedies beginning in 1875,” not the Founding.104 Section 11 of the Judiciary Act of 1789 gave the federal courts jurisdiction over “suits . . . in equity” where the United States was a party, a noncitizen was a party, or the parties were diverse;105 it did not create general federal question jurisdiction. Congress did not enact the modern federal question jurisdiction statute until 1875.106 The CASA Court’s choice of starting point did not ultimately make a difference, since it concluded that “universal injunctions were not a feature of federal-court litigation until sometime in the 20th century.”107 Yet treating 1875 as the “baseline could make a difference in future federal question cases”108 — including, as this Part shows, when it comes to enjoining municipalities.
There is special reason to pay attention to postbellum practice for suits against municipal defendants: The Fourteenth Amendment was ratified in 1868.109 It is that amendment that today makes possible a broad range of constitutional challenges against municipal action, and that binds states and their subdivisions to the Bill of Rights.110 Thus, in the Second Amendment context, the Court has explicitly “acknowledge[d]” the “ongoing scholarly debate on whether courts should primarily rely on the prevailing understanding of an individual right when the Fourteenth Amendment was ratified in 1868.”111 Postbellum equity practice may also bear on a modern court’s equitable authority.
Accordingly, this Note surveys the early, mid-, and late nineteenth-century historical record, ending toward the beginning of the twentieth century. In brief, at the Founding and for many years thereafter, federal courts routinely enjoined municipal entities without taking issue with their status as municipalities. This history confirms what logically follows from Ex parte Young: Federal courts have long enjoined state and federal actors from violating federal law and the Constitution without requiring a statutory cause of action, much less imposing a stringent “policy or custom” requirement. The same should be true for suits against municipalities.
A. Founding-Era History
Municipalities in the early republic were principally modeled after the English municipal corporations of the seventeenth and eighteenth centuries.112 Municipalities created by charter were “granted the rights and privileges of a corporation . . . and [were] of capacity . . . to sue and be sued; and to have a common seal.”113 Early cases recognized the rights of corporations to sue and be sued in federal court, though for purposes of diversity they did so through their members’ citizenship, rather than through their own.114 Because of this wrinkle, the fact that no Bill of Rights provision was formally incorporated until 1897,115 and the fact that the precursor to the modern federal question jurisdiction statute was passed only in 1875,116 it is reasonable to attribute the paucity of Founding-era cases involving municipalities to a lack of subject matter jurisdiction, rather than to deficiencies in the equitable remedial authority of the courts.
And yet, in 1815, the Supreme Court affirmed an injunction prohibiting municipal officials from claiming title to private land117 under “the spirit and the letter of the constitution of the United States.”118 The facts of Terrett v. Taylor119 are complex, and Justice Story’s opinion is not a model of clarity.120 Simplifying somewhat, the case revolved around a 516-acre parcel of land in present-day Alexandria, Virginia, then a part of the District of Columbia.121 The parcel was among the Episcopal Church’s former “glebe lands,” which belonged, “by law, to the minister of the church.”122 In 1798, the Virginia legislature had passed a statute disestablishing religion beyond doubt, and three years later, it asserted a right to and ordered the sale of all vacant glebe lands.123 County officials known as “overseers of the poor” were responsible for enforcing the law and selling the land.124
Members of the Episcopal Church of Alexandria filed a bill in federal chancery court in the District of Columbia to quiet title and enjoin the overseers.125 The Supreme Court ruled for the plaintiffs, writing that a legislature could not transfer property from a private corporation to the state under “the principles of natural justice, . . . the fundamental laws of every free government, [and] the spirit and the letter of the constitution of the United States.”126 Justice Story did not specify exactly which constitutional provision was at issue, though Professor G. Edward White suggests it was the Contract Clause of Article I, Section 10.127 Ultimately, the Court held “that the Plaintiffs are of ability to maintain the present bill” and “that the overseers of the poor of the parish of Fairfax have no just, legal, or equitable title to the said land, and ought to be perpetually enjoined from claiming the same.”128
The Terrett Court never once questioned whether a federal court had the authority to enjoin municipal officers from acting unconstitutionally. Justice Story did not even raise this issue in Terrett, nor in the follow-on case of Town of Pawlet v. Clark.129
In subsequent years, municipal injunction cases continued to pop up in the District due to federal courts having original jurisdiction over nearly all D.C. civil and criminal matters.130 In Goszler v. Corporation of Georgetown,131 for example, the circuit court enjoined Georgetown from leveling the street outside the plaintiff’s house.132 Though the court eventually changed its mind and the Supreme Court affirmed, neither court expressed any doubt over the power of a federal court to enjoin a municipality absent a statutory cause of action.133 Nor did the Supreme Court raise that question in Corporation of Washington v. Pratt,134 where it upheld a perpetual injunction prohibiting the District from conveying the plaintiff’s property for taxes.135 In CASA’s terms, injunctions against municipalities were “‘traditionally accorded by courts of equity’ at our country’s inception.”136
B. The Mid-Century
In the mid-nineteenth century, federal courts continued to issue injunctions against municipal defendants without a statutory cause of action. Injunctive relief was governed by familiar equitable principles, such as the prevention of “a great and perhaps irreparable injury” as well as “a multiplicity of prosecutions and suits which must arise if the parties are left to litigate at law.”137 For instance, upon deeming a municipal ordinance unlawfully monopolistic,138 the federal circuit court for the District of Columbia “restrain[ed] the corporation from enforcing the penalties” of a by-law that was “clearly illegal and void at common law.”139 Another circuit court enjoined an unlawful municipal ordinance set by the city of Portland140 in order to “prevent[] . . . a multiplicity of suits.”141 And, when a plaintiff sought to compel St. Clair County, Michigan, to pay its assets toward judgments obtained against it, yet another circuit court granted the relief requested “by the ordinary exercise of [its] chancery powers.”142
The Supreme Court was no different. Recall that when Armstrong recognized “a long history of judicial review of illegal executive action,”143 it invoked an 1845 Court decision by the name of Carroll v. Safford.144 Carroll grew out of a suit to enjoin the treasurer of Genesee County, Michigan, from conveying certain tracts of land.145 The Supreme Court took up four questions certified from the court below, the last of which asked “[w]hether the remedy by bill in equity, and the relief sought, [were] proper.”146 Carroll held they were. All nine Justices “entertain[ed] no doubt, that, in a proper case, relief may be given in a court of equity”: “to prevent a cloud from being cast on the complainant’s title, or to remove such cloud; to prevent multiplicity of suits, or to prevent an injurious act by a public officer, for which the law might give no adequate redress.”147 Almost two centuries later, the Armstrong Court resurfaced this line from Carroll148 in recognizing a court’s freestanding “ability . . . to enjoin unconstitutional actions by state and federal officers.”149 While Armstrong spoke only of state and federal defendants, Carroll was a suit against a municipality.
Though Carroll did not discuss the Court’s equitable authority at much length, in the years thereafter, the Court affirmed injunctions against municipal defendants with increasing regularity. In Town of East Hartford v. Hartford Bridge Co.,150 the Supreme Court upheld an injunction restraining the town from operating a ferry “to the special injury of [a] bridge company.”151 With Connecticut having repealed its grant of ferry rights to East Hartford, the town’s attempt to continue running the ferry was “done . . . without legal authority, and should therefore be restrained by injunction.”152 Courts of equity could also intervene to protect shareholders suing on behalf of a company over threatened injury by municipal entities.153 In Dodge v. Woolsey,154 the Supreme Court affirmed an injunction barring the Cuyahoga County Treasurer from levying taxes on a Cleveland bank in violation of the Contracts Clause.155 “It is now no longer doubted,” the Dodge Court observed, “either in England or the United States, that courts of equity, in both, have a jurisdiction . . . to apply preventive remedies by injunction” so as to avert “a violation of charters, or . . . misapplication of [corporations’] capitals or profits.”156
C. Postbellum
The Supreme Court’s endorsement of enjoining municipal defendants continued apace in the 1870s,157 a period that dovetailed with Congress’s grant of federal question jurisdiction158 and the broader shift from legal to equitable remedies against government action.159 Where the Court denied injunctive relief, it did so because the case did not fall under a recognized head of equitable jurisdiction; the Court did not treat municipalities differently on account of their status as municipalities. For instance, Dows v. City of Chicago160 and Hannewinkle v. Georgetown161 made clear that a court would enjoin municipal tax collection only if enforcing the tax would produce a multiplicity of suits, cause irreparable injury, or cloud title, or if the plaintiff lacked an adequate remedy at law.162 Simply put, there had to be “some cause presenting a case of equity jurisdiction.”163 Similarly, while it would not be enough to allege “the mere illegality of [a] tax . . . , nor its injustice nor irregularity,”164 the Court recognized that it might rule differently given proof of fraud or a “violation of the constitution, either in the statute or in its administration.”165
The chance for the Court to do so came in the October 1879 Term, when it twice upheld injunctions against unlawful municipal action. In Cummings v. National Bank,166 eight Justices agreed that — even “[i]ndependently” of an Ohio statute specifically authorizing injunctive relief — “when a rule or system of valuation is adopted . . . to operate unequally and to violate a fundamental principle of the Constitution,” and “is applied not solely to one individual, but to a large class of individuals or corporations, . . . equity may properly interfere to restrain the operation of this unconstitutional exercise of power.”167 Likewise, in Crampton v. Zabriskie,168 the Court declared there to be “no serious question” that resident taxpayers could “invoke the interposition of a court of equity to prevent an illegal disposition of the moneys of the county . . . [t]he right ha[ving] been recognized by the State courts in numerous cases.”169 Given “the nature of the powers exercised by municipal corporations, the great danger of their abuse and the necessity of prompt action to prevent irremediable injuries,” the Crampton Court thought it “eminently proper for courts of equity to interfere” to guard against municipal officers’ attempts, “in excess of their powers, to create burdens upon property-holders.”170
Four years later, Transportation Co. v. Parkersburg171 recognized that county officials could be sued to enjoin a municipal ordinance under the Constitution’s Tonnage Clause.172 Though the Court ultimately upheld the lower court’s denial of an injunction, it did so because it thought the ordinance constitutional;173 the Court never questioned its authority to command equitable relief.174 By 1885, in Allen v. Baltimore & Ohio Railroad Co.,175 the Court could describe Parkersburg as establishing the principle that “a bill in equity would lie which seeks to have a wharfage ordinance declared void, and for an injunction to restrain further collections under it.”176 In turn, the Allen Court had little difficulty sustaining an injunction against the treasurer of Augusta County177 because the case lay “within the terms of the rule as declared in Cummings.”178 Invoking Parkersburg and Dodge,179 the Court regarded both its equitable authority “and the propriety of its exercise” as “indisputable”: Where individual constitutional rights were “in jeopardy . . . and no adequate remedy for their enforcement [was] provided by the forms and proceedings purely legal, the same necessity invoke[d] and justifie[d] . . . that jurisdiction in equity vested by the Constitution of the United States.”180
Allen also demonstrates that federal courts of equity have historically treated municipal and state defendants symmetrically. The Allen Court located its holding “fully within the principle firmly established in . . . Osborn [v. Bank of the United States181],”182 the landmark 1824 opinion by Chief Justice Marshall enjoining state officials from taxing a federal bank.183 Subsequent Supreme Court decisions drew on both Allen and Osborn in explaining that equitable remedies could be deployed to prevent a state officer from “violat[ing] and invad[ing] the personal and property rights of the plaintiffs,” upon proof of both irreparable injury and the lack of an adequate remedy at law.184 And in 1908, Osborn proved key to the Court’s reasoning in Ex parte Young, where Justice Peckham explained that this sort of equitable jurisdiction had “been exercised by Federal courts from the time of Osborn.”185 Nowhere in this line of cases did the Court distinguish between municipal and state defendants with respect to the availability of equitable relief.186 When the Ninth Circuit held in Moore that “[a]ctions under Ex parte Young can be brought against both state and county officials,”187 therefore, its statement was historically accurate.
Contemporary treatise writers agreed that courts of equity could enjoin municipalities.188 In 1872, Judge John Dillon explained that, “[g]enerally speaking, equity will interfere in favor of, or against, municipal corporations, on the same principles by which it is guided in other cases.”189 The next year, James High wrote that “[t]he jurisdiction of courts of equity to restrain the proceedings of municipal corporations, . . . where such proceedings encroach upon private rights and are productive of irreparable injury, may be regarded as well established.”190 And Professor John Norton Pomeroy observed that courts could enjoin municipal taxation based on the inadequacy of legal remedies as well as “the inherent jurisdiction of equity to interfere for the prevention of a multiplicity of suits”191 — in other words, the usual heads of equitable jurisdiction. As Judge Dillon explained, that the defendant was a municipality in fact warranted “a relaxation, rather than a strict application,” of equity’s requirement of no “plain and full remedy at law,”192 for “these corporations hold their powers in trust for the public benefit, and . . . the remedy by injunction or by bill in equity is often more efficacious than any other to restrain and correct municipal abuses.”193 It is no wonder that, by 1890, the Supreme Court could observe that its “records . . . for the last thirty years [were] full of suits against counties.”194
At the turn of the century, the Court continued to uphold injunctions against municipalities. For example, in the 1898 case of Norwood v. Baker,195 the Court affirmed an injunction restraining the application of a municipal ordinance to Baker’s property.196 Quoting Cummings’s endorsement of equity’s ability to “interfere to restrain the operation of [an] unconstitutional exercise of power,”197 the Court characterized the municipal assessment as one “in which the entire assessment is illegal,” such that Baker did not need to first pay the validly owed portion before suing on the rest.198 By 1914, the injunction had become “generally recognized and used as an appropriate remedy to be invoked . . . against the municipality for the protection of public and private rights, when irremediable loss or damage [was] menaced.”199
The CASA Court held that universal injunctions exceeded a federal court’s equitable authority because they “were not a feature of federal-court litigation until sometime in the 20th century.”200 History tells a different story for equitable relief against municipalities. From the Founding into the twentieth century, without mention of a statutory cause of action, federal courts regularly enjoined towns, cities, villages, and their officers for violations of federal law and the Constitution.
III. A Note on Foreclosure
This Note has demonstrated a historical basis for federal courts to enjoin municipalities no differently from state and federal officials. True, Congress can foreclose even well-established equitable remedies.201 But it did not displace equitable relief against municipalities by enacting § 1983.
Federal courts may presumptively enjoin violations of the Constitution and federal law “[a]bsent the clearest command to the contrary from Congress.”202 The Court has recognized two ways that Congress demonstrates intent to foreclose equitable relief. First, it can “prescribe[] a detailed remedial scheme” through which plaintiffs must shepherd their claims.203 But this jurisprudence has been construed narrowly,204 and the mere fact that § 1983 supplies a cause of action against violations caused by a municipal policy or custom does not mean it forecloses equitable suits to remedy all other violations. The Court rejected such an argument in Verizon Maryland, Inc. v. Public Service Commission,205 holding that the fact that the Telecommunications Act of 1996206 provided a cause of action to challenge certain state commission decisions did not imply intent to foreclose equitable relief against all others.207 And like that Act, § 1983 places no restrictions on the relief a court can award.208
Second, Armstrong held that Congress has displaced equitable relief where even a cursory alternative remedy combines with “the judicially uadministrable nature” of the text of the statute sought to be enforced.209 But this test is inapplicable to § 1983 in the first instance. Armstrong concerned a substantive, rights-conferring provision of the Medicaid Act,210 whereas § 1983 is simply a procedural vehicle for enforcing rights derived elsewhere.211 Even if that were not the case, the sea of § 1983 suits federal courts hear daily suggests that the statute is hardly difficult for judges to administer.
Finally, over a century of historical practice would look quite odd if, in 1871, Congress had sought to channel all equitable enforcement of federal rights against state and municipal actors through § 1983. Such a holding would undermine, if not outright overrule, the many municipal cases decided shortly after § 1983’s passage,212 all of which relied on equity and none of which mentioned § 1983. Determining that § 1983 silently displaced equity would mean that the courts had simply gotten it wrong for over 150 years. And it would be strange indeed to conclude that § 1983 permits equitable remedies against state officials under Ex parte Young but forecloses relief against municipal defendants. At least from a sovereign immunity perspective, that conclusion would paradoxically mean that states — which possess “a residuary and inviolable sovereignty”213 — are more vulnerable to federal injunctions than nonsovereign municipalities, creatures of statute that may be dissolved at any moment.214
Conclusion
At the Founding and for many years thereafter, federal courts recognized that municipal corporations could be enjoined directly for violations of the federal laws and Constitution. Federal courts in the mid-twentieth century continued to exercise that power even absent § 1983’s cause of action. No case has ever suggested that federal courts were stripped of that authority. Equitable actions against municipal defendants appear to have fallen out of use in recent decades, but they stand on firm historical footing. Reviving them could prove critical for plaintiffs unable to meet Monell’s stringent policy or custom requirement. It would have made a difference in Garnett. There, the district court recognized that courts across the country had enjoined state defendants guilty of noncompliance with the SNAP Act’s deadlines.215 “Notably,” however, “none of th[o]se cases involved municipalities,” meaning that they triggered “the SNAP Act’s absolute liability standard, rather than the deliberate indifference standard applicable” to D.C. under § 1983.216 Because the plaintiffs could show only “some noncompliance,”217 the judge granted summary judgment for the District.218 But equity would not warrant a different standard.
Federal courts would still be bound by traditional principles of equitable practice.219 Under those very principles, there is no reason to conclude that courts cannot enjoin municipalities in equity absent a statutory cause of action — they did so for over a hundred years. When seeking prospective relief against municipalities, plaintiffs can seek relief in equity rather than subject themselves to Monell’s gauntlet.