Friday, May 31, 2002

A Narrowed Right to Challenge the States
If a state violates your federal rights, are you allowed to sue it in court? In a society proudly committed to the rule of law, you might think that the answer would be yes. But the Rehnquist court has often said no. In a series of remarkable decisions, the Supreme Court has created a sweeping new principle of state sovereign immunity against private lawsuits.

On Tuesday, the court took a still more remarkable step. It ruled that sovereign immunity means that federal agencies cannot hold a hearing in a proceeding brought by a private party complaining that a state has violated a federal law.

The majority's interpretation lacks any basis in the constitutional text. The Eleventh Amendment says that the "judicial power of the United States shall not . . . extend to any suit" brought against one of the "states by citizens of another state." This means, quite simply, that residents of California are not allowed to go to federal court to sue Connecticut.

Going well beyond the Constitution's words, the Rehnquist court thinks that the Constitution generally prohibits private citizens from suing any state on a federal claim in any court, even if they show that states are injuring them in violation of federal law. (People remain able to sue states that are violating rights protected by the Constitution's Civil War amendments, including freedom from racial discrimination.)

In the past seven years, the court has turned state sovereign immunity into an assault weapon against Congress, striking down federal laws on no fewer than six occasions. (Most of those laws, incidentally, were approved by Congress with overwhelming bipartisan support.) But until yesterday, the court's decisions arguably had some historical grounding.

No framer of the Constitution ever suggested that this immunity protects states when they are brought before federal agencies. Even Justice Thomas admits he could find only a "relatively barren historical record" on immunity in this context and attributes this silence to the failure of the framers to anticipate the vast growth of the administrative state. The court's extension of sovereign immunity is based not on text or history, but on a guess about what the framers might have thought.

Until now, federal regulatory agencies have been able to adjudicate the complaints of private citizens harmed by state entities. No longer. As Justice Breyer wrote in his dissent, the ruling may undermine the enforcement of many laws protecting the health and safety of state employees.
http://www.nytimes.com/2002/05/31/opinion/31SUNS.html

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