COURT UPHOLDS STATE POWER IN S.C. PORT CASE

Law: Justices Rule That 'Sovereign Immunity' Shields An Agency From Federal
Regulators.

WASHINGTON -- In another victory for states' rights, the Supreme Court
ruled Tuesday that the principle of "sovereign immunity" shields a state
agency from being called before a federal administrative hearing and
charged with violating the law.

Speaking for the 5-4 majority, Justice Clarence Thomas said it would be "an
affront to a state's dignity" to force its officials to appear at a federal
administrative proceeding.

The decision, in a case involving docking rights for cruise ships, extends
recent rulings that have limited the reach of federal authority and
elevated the status of the states as "sovereign entities." In 1996, the
same justices in Tuesday's majority ruled that states, including public
universities and state-run hospitals, are generally immune from being sued
for violating federal laws.

Since then, the court has thrown out lawsuits brought by a Florida college
professor who says he was paid less because of his age, an Alabama hospital
worker who was fired after surviving breast cancer and a Maine probation
officer who was not paid for overtime work.

The justices also barred suits against state agencies over stolen patents,
trademarks and copyrights--all violations of federal law.

The court's conservative majority said it was not trying to destroy federal
law, but rather maintain the structure set in the original Constitution of
1787.

"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," Thomas wrote. "Sovereign immunity ...
accords States the dignity that is consistent with their status as
sovereign entities," he added.

The four liberals, in an unusually harsh dissent, accused the conservatives
of making up a principle that does not appear in the Constitution and using
it to whittle away at progressive laws enacted during the 20th century.

The Constitution says, "The laws of the United States ... shall be the
supreme law of the land."

"Where does the majority find its constitutional prohibition" on federal
administrative proceedings? Breyer asked in his dissent, which he read
aloud. "Not in the Constitution's text, which says not a word about it. Not
in history. Not in tradition."

Though Tuesday's decision arose from a dispute over access to a port in
South Carolina, the dissenters said the court's ruling would hinder
enforcement of federal laws that protect the environment and assure the
health and safety of workers. Often, agencies use investigations, hearings
and fines to force others, including states, to abide by federal law.

"Just as this principle of [state sovereign immunity] has no logical
starting place, I fear that neither does it have any logical stopping
point," Breyer said in his dissent.

Until reined in, "I fear [it] will be randomly destructive," he said.

The court's conservatives have said that sovereign immunity comes from the
11th Amendment, which reads, "The Judicial Power of the United States shall
not extend ... to any suit in law" brought against one state by "citizens
of another state or ... of any foreign state."

This case did not involve "judicial power," but an agency hearing, and it
concerned a complaint by a South Carolina company against the South
Carolina State Ports Authority.

Undeterred, Thomas said the "sovereign immunity enjoyed by the states
extends beyond the literal text of the 11th Amendment."

In the past, conservatives have accused liberals of inventing doctrines
that were not mentioned in the Constitution, such as the right to privacy.

In something of a role reversal, Breyer hammered the conservatives for
relying on a fictional doctrine, so much so that Thomas fired back in a
footnote, accusing the liberals of "engaging in a type of ahistorical
literalism."

Rhetoric aside, Tuesday's ruling concerned only a mechanism for enforcing
the law, not the substance of the law itself.

The justices threw out a complaint brought by one cruise line against the
state-run port authority.

A South Carolina maritime company had asked repeatedly to berth a cruise
ship, the M/V Tropic Seas, at Charleston. The ship offered short cruises
that featured casino gambling. State officials replied that they did not
want gambling ships in port.

But the complaining company said the state's decision was unfair and
discriminatory because Carnival Cruise Lines had berthed two ships that
also offered gambling. The competing cruise line complained to the Federal
Maritime Commission, a small independent agency based in Washington, which
assigned an administrative law judge to hold a hearing.

South Carolina officials balked, citing states' rights, and they won a
major victory before the U.S. 4th Circuit Court of Appeals in Richmond,
Va., the onetime capital of the Confederacy.

Chief Judge J. Harvie Wilkinson said "the doctrine of sovereign immunity
predates the founding of our nation ... [and] is among the Constitution's
foremost principles."

The federal agency, backed by Solicitor General Theodore B. Olson, appealed
the issue to the Supreme Court.

But the majority said an administrative hearing "bears a remarkably strong
resemblance to civil litigation in federal court"--and since states are
shielded from lawsuits, they also should be shielded from administrative
hearings.

"We hold that state sovereign immunity bars such an adjudicative
proceeding," Thomas said in Federal Maritime Commission vs. South Carolina
State Ports Authority, 01-46. Chief Justice William H. Rehnquist and
Justices Sandra Day O'Connor, Antonin Scalia and Anthony M. Kennedy agreed.

Besides Breyer, the dissenters were Justices John Paul Stevens, David H.
Souter and Ruth Bader Ginsburg.