308
Souter, J., dissenting
other, of leaving an individual powerless to seek any federal remedy for violation of a federal right, would deplete the federal judicial power to a point the Framers could not possibly have intended, given a history of officer liability riding tandem with sovereign immunity extending back to the Middle Ages. See Jaffe, Suits Against Governments and Officers: Sovereign Immunity, 77 Harv. L. Rev. 1, 18 (1963); Erlich, No. XII: Proceedings Against the Crown (1216-1377) pp. 28-29, in 6 Oxford Studies in Social and Legal History (P. Vinogradoff ed. 1921). The holdings in Treasure Salvors and Lee, like the holding that should obtain here, represent a line drawn short of such an extreme, and if the Court may curse it as formalistic so may any line be cursed that must be drawn somewhere between unacceptable extremes. In the title cases cited, as in any other such suit, the State could ultimately settle its title by choosing to litigate the disputed title once and for all; in most cases, of course, the State may choose its own forum, though in this instance it would need the permission of the United States, see n. 8, supra. (As that note previously explained, the fact that the United States is required to consent to such a suit against an Indian tribe has nothing to do with the doctrinal basis of Young and is hardly an inequity to the States when viewed historically. See n. 11, infra.) The line is a fair via media between the extremes.
What is equally significant, finally, is that an officer suit implicating title is no more or less the "functional equivalent" of an action against the government than any other Young suit. States are functionally barred from imposing a railroad rate found unconstitutional when enforced by a state officer; States are functionally barred from withholding welfare benefits when their officers have violated federal law on timely payment; States are functionally barred from locking up prisoners whom their wardens are told to release. There is nothing unique about the consequences of an officer suit
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