Supremes Bomb Feds

On May 28, the Supreme Court dropped a bomb against federal regulations. With this ruling, if an individual has a complaint that a state government has violated federal law, whether on labor rights, environmental violations or any other issue, they are now barred from demanding that the appropriate federal agency evaluate their complaint. Yes, the state may have clearly violated an individual's rights under federal law, but the rightwing majority on the Supreme Court declared that individuals now have little they can do about it.

The case itself involved a relatively prosaic shipping controversy over whether a South Carolina port could refuse docking privileges to a casino cruise ship, a violation of a 1984 maritime law. But the bombshell was that when the shipping company appealed the refusal to the appropriate federal agency, the courts declared that the agency administrative law judge could not even evaluate the claim.

Arguing that such administrative evaluations would harm the so-called "sovereign dignity" of state governments, Justice Clarence Thomas in Federal Maritime Commission v. South Carolina State Ports Authority said that Congress cannot grant individuals any right to bring administrative proceedings against state governments. Noting that "the Founders" had not envisioned a strong administrative state (and obviously wishing it had never arisen), Thomas declared such proceedings as an "affront" to the "sovereignty" of the state governments.

This decision is just one more expansion of the radical attacks by the rightwing five-member majority of the Court on federal regulation and the ability of individuals to sue for violations of their rights by state governments. What is most dangerous about this case is that previous decisions at least had some weak basis in the text of the Constitution's 11th Amendment which barred some "suits in law or equity" against state governments. But as Justice Thomas admits in this decision, administrative proceedings are not covered by those words in any stretch of the imagination. However, the so-called "originalists" in the rightwing majority decided that "sovereign immunity" doesn't need any Constitutional basis, since "the Founders" wanted it there. If the Founders forgot to put it in the text, the Supreme Court will assist them by adding it back in by judicial fiat.

The bizarre thing about the decision is that the federal government itself is free to pursue a lawsuit against the state to enforce the law in question. Congress is just barred from setting agencies' legal proceedings in motion based on the complaint of an individual. The distinction is as weird and clumsy as it sounds, but the effect is exactly what the conservatives want --a weakened and more arbitrary enforcement of the laws.

Traditionally, federal law has been enforced by two methods; (1) agencies can use their scarce (and often underfunded staff) to find cases worth pursuing in court, or (2) more commonly, the law encourages individuals whose rights under the law have been attacked to apply themselves for relief from a federal agency, who in turn will make a decision on its merits, then seek enforcement of the decision in court. This decision has basically destroyed procedure (2) as a method to enforce justice.

As Justice Breyer argues in his withering dissent, "The decision, while permitting an agency to bring enforcement actions against States, forbids it to use agency adjudication in order to help decide whether to do so. Consequently the agency must rely more heavily upon its own informal staff investigations in order to decide whether a citizens complaint has merit. The natural result is less agency flexibility, a larger federal bureaucracy, less fair procedure, and potentially less effective law enforcement." And the last point "less effective enforcement" is exactly the goal of the rightwing majority.

Under this new inflexible regulatory regime, conservatives in Congress can essentially gut the legal rights of workers, consumers and citizens against state violations of the law by the simple expedient of cutting funding for agencies. With little staff to do investigations and with no option by those suffering harm to pursue their own cases, justice will be undermined and denied.

And the president can undermine those rights by encouraging agencies not to pursue any complaint they don't like politically. Instead of some fair and consistent evaluation of complaints, each case will be pursued by the executive branch based on its political self-interest in pursuing (or not pursuing) the violations. Essentially, the Supreme Court has gutted any independence review of complaints within the administrative agencies.

Under Bush, labor and environmental agencies have already announced that they are largely abandoning lawsuits in favor of "voluntary" compliance with federal regulations. If any state chooses not to voluntarily follow federal law, those effected will now have no recourse if Bush political operatives in the executive branch do not want to pursue their case.

This radical Supreme Court is step-by-step dismantling our democracy and the ability of our federal government to pass laws to enforce economic and social justice. And this is unlikely to be the last step in this judicial assault on such regulations, since the rightwing Justices now seem willing to make up doctrine free of any basis in the text of the Constitution itself.

As Breyer wrote in his dissent, "Just as this principle has no logical starting place, I fear that neither does it have any logical stopping point."

Nathan Newman is a labor lawyer and longtime community activist, a national vice president of the National Lawyers Guild and author of the forthcoming book Net Loss on Internet policy and economic inequality. Email or see

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