City of Austin, Texas v. Ken Paxton, Attorney General of Texas, et al.

The Texas Legislature enacted a self-enforcing preemption statute that voided an Austin ordinance prohibiting landlords from refusing to rent to tenants on the ground that federal Section 8 housing vouchers would be used to pay some of their rent. Relying on Ex parte Young, 209 U.S. 123 (1908), Austin filed an official-capacity suit in federal court against the Attorney General—who conceded his authority to enforce the statute against the city—for a declaratory judgment that federal law preempts the state statute. The Fifth Circuit held the suit barred by the Eleventh Amendment after finding that the Attorney General’s power to enforce the statute is not enough of an enforcement “connection” to meet Ex parte Young’s test. The question presented is: Under Ex parte Young, is a state official a proper defendant in a federal declaratory judgment challenge under the Supremacy Clause to the validity of a self-enforcing state statute, if the official with authority to enforce the statute has not yet overtly threatened enforcement?