- The Washington Times - Wednesday, June 19, 2002

When the 13 colonies decided to form a new nation, they established a government based on the principle of federalism that each of the member states still retained all the rights it had not granted to the new federal government in the Constitution. Almost immediately, there were moves to limit the states' powers and enhance the federal government's. In 1793, the Supreme Court's Chisolm vs. Georgia decision said that an individual from one state could sue another state in federal court. That decision destroyed the states' sovereign immunity from being sued. "Sovereign immunity" prevents a government state, federal or foreign from being sued unless, by law, it consents to be sued in a particular court on a particular claim.

The states' reaction to the Chisolm decision was so strong that the 11th Amendment to the Constitution was passed and ratified quickly. The 11th Amendment says that federal courts have no power to decide the rights and obligations of states in cases brought by individuals. The drafters of the 11th Amendment never foresaw the federal bureacratic morass that often reaches out to grab states by the ankle. When Congress created the many federal regulatory agencies, it gave them the power to regulate and also created a network of in-house administrative courts to enforce their own rules. In Federal Maritime Commission vs. South Carolina State Ports Authority, owners of cruise ships used for gambling cruises brought a complaint against the state of South Carolina for refusing to let their ships dock. South Carolina argued that because no federal court could hear the shipowners' case, no administrative judge such as the ones who work for the Federal Maritime Commission (FMC) could either. In late May, the Supreme Court decided that South Carolina was immune from the commission's jurisdiction under the 11th Amendment.

Writing for the Supreme Court's 5-4 majority, Justice Clarence Thomas applied the sovereign immunity doctrine to administrative proceedings that can decide a state's rights or obligations. Justice Thomas' decision justified every liberal's fear of strict-constructionist judges. Finding that the FMC was performing a judicial function, the high court's decision declares, in the strongest terms, that states have the same immunity from lawsuits in administrative courts that they do in courts established under the Constitution.

Imperialist agencies such as the Environmental Protection Agency which leverages its adjudicative powers to compel states to follow its rules will now have to use their powers within the limits of the Constitution, not their own agendas. The decision protects the states from the expansionist power of federal agencies, and for this we should all be thankful. As the May 28 decision says, "By guarding against encroachments by the federal government on fundamental aspects of state sovereignty … we strive to maintain the balance of power embodied in our Constitution and thus reduce the risk of tyranny and abuse from either front." Exactly.

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