Younger Abstention after Trump v. Vance

Did the Supreme Court quietly modify a major jurisdictional doctrine?

Last summer, in Trump v. Vance, the Supreme Court held that a sitting President potentially must answer a state criminal subpoena. But along the way to the Supreme Court, the case encountered the federal courts doctrine known as Younger abstention, which requires that "When there is a parallel, pending state criminal proceeding, federal courts must refrain from enjoining the state prosecution."

In Vance, there was a pending criminal proceeding in the New York state courts. President Trump, acting in his personal capacity, went to federal court to seek an injunction. So one might think this was a natural case for Younger abstention. And indeed, that is what the district court held.

But on appeal, the Second Circuit decided that abstention was inappropriate (although it still ruled against President Trump on the merits). It concluded that Younger abstention ought not apply to litigation brought by the United States, and a personal suit by the President was close enough to create similar considerations.

Making such an exception is kind of a big deal. Until now, the usual black letter rule is that Younger abstention can be set aside only in narrow circumstances—bad faith, harassment, or patent unconstitutionality—none of which had been shown in President Trump's case. Indeed, Professor Fred Smith recently wrote an excellent article criticizing the ossification of Younger abstention doctrine and calling on courts to be more ready to recognize new exceptions. But in doing so he was rowing against the current.

Recognizing such a new exception would both change the black letter law of Younger abstention, and also change the message that no new exceptions to Younger abstention are appropriate. It changes both the doctrine and the meta-doctrine.

So do we have such a new exception? The Supreme Court noted this dispute about Younger abstention passively at the beginning of its opinion:

The District Court abstained from exercising jurisdiction and dismissed the case based on Younger v. Harris, which generally precludes federal courts from intervening in ongoing state criminal prosecutions. In an alternative holding, the court ruled that the President was not entitled to injunctive relief.

The Second Circuit met the District Court halfway. As to the dismissal, the Court of Appeals held that Younger abstention was inappropriate because that doctrine's core justification—"preventing friction" between States and the Federal Government—is diminished when state and federal actors are already in conflict, as the district attorney and the President were.

But a later passage of the opinion can be read to bless the Second Circuit's analysis. In noting that the President has ample options to stop unconstitutional subpoenas, the Court wrote:

We generally "assume[ ] that state courts and prosecutors will observe constitutional limitations." Dombrowski v. Pfister, 380 U.S. 479, 484 (1965). Failing that, federal law allows a President to challenge any allegedly unconstitutional influence in a federal forum, as the President has done here. See 42 U.S.C. § 1983; Ex parte Young, 209 U.S. 123, 155-156 (1908) (holding that federal courts may enjoin state officials to conform their conduct to federal law).

While this passage is not exactly clear about it, it seems to bless the course of litigation in the Second Circuit ("as the President has done here"). The citations to Section 1983 and Ex parte Young are the background law that is precluded by Younger, so they are relevant only if Younger is inapplicable.

I happen to think Younger abstention is basically correct on principles of equity, so exceptions can be made when principles of equity might suggest. This means I am not necessarily against this kind of modification. But it's kind of a big deal that the Supreme Court may have modified Younger abstention, and I'm surprised I haven't heard more about it.