- The Washington Times - Wednesday, May 29, 2002

The Supreme Court sharply extended the sovereign immunity of states yesterday in a 5-4 ruling that bars a federal agency from fining South Carolina for keeping a gambling ship out of its port at Charleston.
Rejecting dissenters' accusations that it will unconstitutionally block many agencies from acting, the court voided a Federal Maritime Commission order against South Carolina's State Ports Authority under the same constitutional theory that makes states immune to lawsuits filed by citizens in federal court.
"We hold that state sovereign immunity bars the FMC from adjudicating complaints filed by a private party against a nonconsenting state," the court said in an opinion written by Justice Clarence Thomas.
"If the Framers [of the Constitution] thought it an impermissible affront to a state's dignity to be required to answer the complaints of private parties in federal courts, we cannot imagine that they would have found it acceptable to compel a state to do exactly the same thing before the administrative tribunal of an agency, such as the FMC," said the opinion, also joined by Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor, Antonin Scalia and Anthony M. Kennedy.
Dissenters John Paul Stevens, David H. Souter and Ruth Bader Ginsburg joined Justice Stephen G. Breyer, who took the unusual step of reading aloud from the bench lengthy portions of a bluntly-worded protest that all but accused the strict-constructionist majority of hypocrisy.
"Where does the Constitution contain the principle of law that the Court enunciates? I cannot find the answer to this question in any text, in any tradition or in any relevant purpose," Justice Breyer said, adding that he couldn't agree with the ruling even if the language were to be found.
"Unlike 'liberty' and 'due process of law,' they suffer from the disadvantage that [the words the majority relies on] do not actually appear in the Constitution," he said.
Although Justice Thomas did not comment on the courtroom remarks, his opinion called it "ironic that Justice Breyer adopts such a textual approach in defending the conduct of an independent agency that itself lacks any textual basis in the Constitution."
Maritime Commission lawyer Philip C. Hughey said yesterday the decision affects a small portion of the panel's authority, which includes regulating international shipping operations in the United States, particularly container ships and cruise vessels, most of which operate from ports operated by private entities.
"Under the court's opinion, the commission will retain its authority to regulate state-run ports so long as the commission utilizes its authority to investigate and act on its own initiative instead of on a private complaint," Mr. Hughey said in an interview.
As is the court's custom, the majority left dissenters the job of spelling out the possible reach of the decision in what justices often call "a parade of horribles."
Justice Breyer suggested the case will "undermine enforcement" of laws aimed at protecting worker health and safety from dangerous substances in water or solid waste, as well as patients in state hospitals. He did not speculate on how authority might fare at such agencies as the Civil Rights Commission or at other agencies that pursue private complaints against government.
The vessel at the center of yesterday's decision is the Tropic Sea, whose owners tried five times to berth it at Charleston. The state-operated port refused, based on its policy to exclude ships operated primarily for gambling.

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