06/01/2002 – rob.neppell.org

A few days back, I wheeled out the Bear Assignment Desk and some homework to Prof. Reynolds, Ms. Lithwick, and Prof. Volokh . Notably: To explain in language a simple bear could understand just what the devil the recent Supreme Court decision regarding the Federal government’s ability to bring action against states on behalf of individuals actually means in the real world.

Well, Ms. Lithwick’s off in Israel, Prof. Volokh begged off, and Prof. Reynolds is way too busy discussing teen nookie and the arcana of web site tracking metrics (although not, I should point out, simultaneously). So they all get incompletes.

Fear not, however, for we have a TTLB reader and a fellow blogger have both provided their analysis of the decision.

Mark Shawhan dropped me an email with an excellent summary of the decision, the key points of which I’ll share with you here. Mark caveats his analysis with the statement that he is “neither a law student nor a law professor”: so noted, but his analysis looks good to me.

Mark begins with the necessary background and summary of the case:

The 11th Amendment states that the federal “judicial power” does not extend to suits by private citizens against states not their own (in other words, states have immunity against such suits). At some point in the recent past, a company called South Carolina Maritime Services was denied berthing space and certain other services for their liners by the state of SC, because those liners were being used as floating casinos. They filed a complaint with the Federal Maritime Commission, asking the commission to enjoin SC from their denial of services to SCMS.

The FMC referred the complaint, as per usual practice, to an administrative law judge, who found that SC enjoyed sovereign immunity from such complaints under the 11th Amendment. the FMC disagreed, reversed the administrative law judge, and found for SCMS. Their reasoning was that the 11th Amendment dealt with judicial tribunals (hence “judicial power”), rather than proceedings of executive branch agencies like the FMC, so SC did not have immunity from the FMC. SC, obviously appealed, etc.

The Supreme Court, found that SC did indeed have immunity from the FMC. The majority opinion, written by Clarence Thomas, stated that while the 11th Amendment did not explicitly give states immunity from administrative proceedings (a literal textual reading says quite the opposite, in fact), the principle of sovereign immunity for the states, of which the 11th Amendment is an important pillar, requires immunity for SC from the FMC. Essentially, the argument is that the principle behind the 11th Amendment was that states should be immune from suit by private citizens. While administrative adjudication of complaints (ie, the FMC deciding the validity of the complaint of SCMS) did not exist at the time the 11th Amendment was ratified, the proceedings of administrative adjudication are closely similar to those of a court, and thus, while they are a function of the executive branch, should be treated as if they are also judicial proceedings. Thus, SC has immunity from the FMC.

OK, got it. So we’re dealing with the 11th Amendment, here, and since it’s only one sentence long, might as well reprint it so we’re all on the same page:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

The majority decision is taking that sentence to mean, in a broad sense, that even though the action in question Federal Maritime Commission was technically executing “administrative proceeding” and not a lawsuit, the FMC isn’t fooling anybody. It had the same effect as a lawsuit, and therefore should be treated as such.

Mark continues, and lays out the future effects of the decision:

There are a couple of implications to the decision. First, this greatly expands the power of the states at the expense of the federal government. Heretofore, as I understand it, there have been substantial numbers of actions against state governments taken by executive agencies of the federal government pursuant to private complaints; these are no longer possible. These agencies may still pursue proceedings against state governments on their own, but I would think this becomes more difficult without a private complaint to spur on action. In other words, the court just closed off a substantial avenue for private citizens seeking remedies against state governments.

The other significant element to this decision was the way in which it was reached. The 5-member majority found that the 11th Amendment’s sovereign immunity extended to administrative proceedings, even though such an interpretation was not in the literal text. Basically, the court said that the 11th Amendment should be construed as to include proceedings substantially similar to the already-enumerated ones, because those proceedings did not exist at the time of the writing of the amendment.

Supporters of this decision would argue that they are looking to the intent of the writers of the amendment (to give states immunity from suit); opponents would say that this is precisely the broad construction of the Constitution going beyond the original text (or even opposite the original text) which members of the majority have in the past criticized as judicial activism. To summarize: in the past, this particular 5-justice majority has struck down federal legislation because justification for that legislation could not be found in the strict text of the Constitution; this decision limits federal powers because those powers were not constitutional, under a broad reading of the constitution. That’s an important change (and shows an increased willingness to limit federal power vis a vis. the states).

So in the future, it’s going to be a lot harder for the federal government to bring any kind of action against state governments. In particular, it seems, regulatory agencies (such as the FMC, EPA, FCC, FAA, and others) are the ones that have lost some power here. Whereas before they could hide behind a fig leaf that their actions were administrative, and not lawsuits, now the Supreme Court has taken away that defense.

Mark is also politely pointing out, I believe, that the majority seems to be switching sides of the strict/loose constructionist debate according to what happens to be convenient at the time; an observation I’ve heard echoed elsewhere.

Still not enough analysis for you? Then check out Howard Bashman’s post at How Appealing, which he was kind enough to refer me to. Howard brings up the interesting point that this decision, given that it was 5-4, may be a factor in future Supreme Court nominations:

The Court’s Eleventh Amendment jurisprudence is unusual in that the four more liberal Justices find themselves in the role of strict constructionists while the five-member majority expounds upon a theme that the majority freely admits transcends the Constitution’s text. The four dissenters have gone on record in earlier dissents as ready to overrule the foundation of the Court’s jurisprudence in this area should a fifth vote to do so ever become available. These cases thus involve a subject matter where a change in the Court’s personnel could make a big difference.

My thanks to both Mark & Howard for their cogent explanations, and hopefully they will each point out any inaccuracies or distortions that I may have inadvertently introduced into
the discussion here.

The Christian Science Monitor is that India’s military has detailed plans for a limited war against Pakistan. The level of detail obtained by the CSM’s reporters (and leaked by the Indian military) is remarkable:

Within the first 48 hours, India is expected to attack the Neelam Valley Road across the Kupwara sector in Indian-held Kashmir, says an Indian Air Force officer involved in the planning. The Indian Air Force will try to destroy an important bridge over the Jhelum River which connects Pakistan with Pakistan Occupied Kashmir. But “Indian action will attract heavy Pakistani punishment,” says General Mehta (an Indian military analyst).

What, no timetable? Well, actually, there is:

Indian military sources say India has secretly told the US and Britain that it will wait two weeks to see if international diplomatic pressure halts infiltration of Islamic militants into Indian territory. “This could be easily verified by monitoring [radio and telephone] intercepts,” says Ret. Major Gen. Ashok Mehta, an Indian military analyst. If infiltration does not significantly drop, a senior Army official says India plans a 10-day assault in Kashmir. “It will be like Kargil [the 1999 war between India and Pakistan],” says Mr. Mehta. “The military action will be predominantly infantry led and intensively supported by the Air Force.”

The running theory as to why the Indian government is letting this stuff leak is that they are trying to threaten Pakistan into clamping down on cross-border terrorism. Stephen Cohen of the Brookings institution is quoted in the CSM piece: “They are threatening to use force to compel another country to alter its behavior. In this case, their target is both Pakistan and the US, and they are compelling the US to put pressure on Musharraf to rein in cross-border terrorism.”

This makes sense as an analysis of the Indian military’s motivations. Does the policy itself make sense though? I’m more than a bit skeptical. Sounds a lot like a game of chicken where neither side is going to blink…

PS – I first learned of the CSM article on KCRW radio’s To the Point yesterday. Click here if you want to listen to RealAudio of an interview with one of the CSM’s reporters about the piece.

Day: June 1, 2002

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