OCTOBER TERM, 2001
Syllabus
FEDERAL MARITIME COMMISSION
v. SOUTH CAROLINA STATE PORTS
AUTHORITY ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT
No. 01-46. Argued February 25, 2002-Decided May 28, 2002
South Carolina Maritime Services, Inc. (Maritime Services),
filed a complaint with petitioner Federal Maritime Commission
(FMC), contending that respondent South Carolina State Ports
Authority (SCSPA) violated the Shipping Act of 1984 when it denied
Maritime Services permission to berth a cruise ship at the SCSPA's
port facilities in Charleston, South Carolina; and praying that the
FMC,
inter alia, direct the SCSPA to pay reparations to
Maritime Services, order the SCSPA to cease and desist from
violating the Shipping Act, and ask the United States District
Court for the District of South Carolina to enjoin the SCSPA from
refusing berthing space and passenger services to Maritime
Services. The complaint was referred to an Administrative Law Judge
(ALJ), who found that the SCSPA, as an arm of the State of South
Carolina, was entitled to sovereign immunity and thus dismissed the
complaint. Reversing on its own motion, the FMC concluded that
state sovereign immunity covers proceedings before judicial
tribunals, not Executive Branch agencies. The Fourth Circuit
reversed.
Held: State sovereign immunity bars the FMC from
adjudicating a private party's complaint against a nonconsenting
State. Pp. 751-769.
(a) Dual sovereignty is a defining feature of the Nation's
constitutional blueprint, and an integral component of the
sovereignty retained by the States when they entered the Union is
their immunity from private suits. While States, in ratifying the
Constitution, consented to suits brought by sister States or the
Federal Government, they maintained their traditional immunity from
suits brought by private parties. Although the Eleventh Amendment
provides that the "judicial Power of the United States" does not
"extend to any suit, in law or equity," brought by citizens of one
State against another State, U. S. Const., Arndt. 11, that
provision does not define the scope of the States' sovereign
immunity; it is instead only one particular exemplification of that
immunity. As a result, this Court's assumption that the FMC does
not exercise the judicial power of the United States in
adjudicating Shipping Act complaints filed by private parties does
not end the inquiry whether sovereign immunity applies to such
adjudications. Pp. 751-754.
744
744 FEDERAL MARITIME COMM'N
v. SOUTH
CAROLINA PORTS AUTHORITY
Syllabus
(b) Formalized administrative adjudications were all but unheard
of in the late 18th and early 19th centuries, so it is unsurprising
that there is no specific evidence indicating whether the Framers
believed that sovereign immunity would apply to such proceedings.
However, because of the presumption that the Constitution was not
intended to "rais[e] up" any proceedings against the States that
were "anomalous and unheard of when the Constitution was adopted,"
Hans v.
Louisiana, 134 U. S. 1, 18, this Court
attributes great significance to the fact that States were not
subject to private suits in administrative adjudications at the
time of the founding or for many years thereafter. Pp. 754-756.
(c) To decide whether the
Hans presumption applies here,
this Court must determine whether FMC adjudications are the type of
proceedings from which the Framers would have thought the States
possessed immunity when they agreed to enter the Union. This Court
previously has noted that ALJ s and trial judges play similar roles
in adjudicative proceedings and that administrative adjudications
and judicial proceedings generally share numerous common features.
Butz v.
Economou, 438 U. S. 478, 513, 514.
Turning to FMC adjudications specifically, neither the FMC nor the
United States disputes the Fourth Circuit's characterization that
such a proceeding walks, talks, and squawks like a lawsuit or
denies that the similarities identified in
Butz between
administrative adjudications and trial court proceedings are
present here. FMC administrative proceedings bear a remarkably
strong resemblance to federal civil litigation. The rules governing
pleadings in both types of proceedings are quite similar; discovery
in FMC adjudications largely mirrors that in federal civil
litigation; the role of the ALJ is similar to that of an Article
III judge; and, in situations not covered by an FMC rule, the FMC's
own Rules of Practice and Procedure provide that Federal Rules of
Civil Procedure are to be used if consistent with sound
administrative practice. Pp. 756-759.
(d) State sovereign immunity's preeminent purpose-to accord
States the dignity that is consistent with their status as
sovereign entitiesand the overwhelming similarities between FMC
adjudicative proceedings and civil litigation lead to the
conclusion that the FMC is barred from adjudicating a private
party's complaint against a non consenting State. If the Framers
thought it an impermissible affront to a State's dignity to be
required to answer private parties' complaints in federal court,
they would not have found it acceptable to compel a State to do the
same thing before a federal administrative tribunal. And it would
be quite strange were Congress prohibited from exercising its
Article I powers to abrogate state sovereign immunity in Article
III judicial proceedings, but permitted to use those same powers to
create court-
745
like administrative tribunals where sovereign immunity would not
apply. Pp. 760-761.
(e) Two arguments made by the United States to support its claim
that sovereign immunity does not apply to FMC proceedings are
unavailing. That the FMC's orders are not self-executing does not
mean that a State is not coerced into participating in an FMC
adjudicative proceeding. A State charged in a private party's
complaint with violating the Shipping Act has the option of
appearing before the FMC in a bid to persuade that body of the
strength of its position or substantially compromising its ability
to defend itself because a sanctioned party cannot litigate the
merits of its position later in a federal-court action brought by
the Attorney General to enforce an FMC nonreparation order or civil
penalty assessment. This choice clearly serves to coerce States to
participate in FMC adjudications. And the argument that sovereign
immunity should not apply because FMC proceedings do not present
the same threat to the States' financial integrity as do private
judicial suits reflects a fundamental misunderstanding of sovereign
immunity's primary purpose, which is not to shield state treasuries
but to accord States the respect owed them as joint sovereigns. In
any event, an FMC reparation order may very well result in the
withdrawal of funds from a State's treasury because the FMC might
be able to assess a civil penalty against a State that refused to
obey a reparation order, and if the Attorney General, at the FMC's
request, then sought to recover the penalty in federal court, the
State's sovereign immunity would not extend to that suit brought by
the Federal Government. Pp. 761-767.
(f) The Court rejects the FMC's argument that it should not be
barred from adjudicating Maritime Services' complaint because the
constitutional necessity of uniformity in maritime commerce
regulation limits the States' sovereignty with respect to the
Federal Government's authority to regulate that commerce. This
Court has already held that state sovereign immunity extends to
maritime commerce cases, and
Seminole Tribe of Fla. v.
Florida, 517 U.
S. 44, 72, precludes the Court from creating a new maritime
commerce exception to state sovereign immunity. Also rejected is
the United States' argument that, even if the FMC is barred from
issuing a reparation order, it should not be precluded from
considering a private party's request for nonmonetary relief. The
type of relief sought by a plaintiff suing a State in court is
irrelevant to the question whether a suit is barred by the Eleventh
Amendment,
id., at 58, and the Court sees no reason why that
principle should not also apply in the realm of administrative
adjudications. Pp. 767-769.
243 F.3d
165, affirmed.
746
746 FEDERAL MARITIME COMM'N
v. SOUTH
CAROLINA PORTS AUTHORITY
Syllabus
THOMAS, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and O'CONNOR, SCALIA, and KENNEDY, JJ., joined.
STEVENS, J., filed a dissenting opinion,
post, p. 770.
BREYER, J., filed a dissenting opinion, in which STEVENS, SOUTER,
and GINSBURG, JJ., joined,
post, p.772.
Phillip Christopher Hughey argued the cause for petitioner. With
him on the briefs were David R. Miles, Amy Wright Larson, and Carol
J. Neustadt.
Deputy Solicitor General Clement argued the cause for the United
States, respondent under this Court's Rule 12.6, urging reversal.
On the briefs were Solicitor General Olson, Assistant Attorney
General McCallum, Deputy Solicitor General Wallace, Malcolm L.
Stewart, Mark B. Stern, and Alisa B. Klein. Warren L. Dean, Jr.,
argued the cause for respondent South Carolina State Ports
Authority. With him on the brief were David Seidman, Jordan B.
Cherrick, Elizabeth Herlong Campbell, and Susan Taylor Wall. *
*Briefs of
amici curiae urging reversal were filed for
the American Federation of Labor and Congress of Industrial
Organizations by
Jonathan P. Hiatt, Laurence Gold, and
David L. Shapiro; for the National Association of Waterfront
Employers by
Charles T. Carroll, Jr., and
Carl Larsen
Taylor; for the United States Maritime Alliance Limited et al.
by C.
Peter Lambos and
Donato Caruso; and for Senator
Edward M. Kennedy et al. by
Lloyd N Cutler, A. Stephen Hut,
Jr., and
Christopher J. Meade.
Briefs of
amici curiae urging affirmance were filed for
the State of Maryland et al. by
J. Joseph Curran,
Jr., Attorney General of Maryland, and
Andrew H. Baida,
Solicitor General, and by the Attorneys General for their
respective jurisdictions as follows:
Bill Pryor of Alabama,
Bruce M. Botelho of Alaska,
Bill Lockyer of
California,
Ken Salazar of Colorado,
Richard
Blumenthal of Connecticut,
M. Jane Brady of Delaware,
Robert A. Butterworth of Florida,
Robert H. Kono of
Guam,
Thurbert E. Baker of Georgia,
Earl I. Anzai of
Hawaii,
James E. Ryan of Illinois,
Steve Carter of
Indiana,
Thomas J. Miller of Iowa,
Carla J. Stovall of Kansas,
Richard P.
Ieyoub of Louisiana, G.
Steven Rowe of Maine,
Mike
Moore of Mississippi,
Jeremiah W (Jay) Nixon of
Missouri,
Don Stenberg of Nebraska,
Frankie Sue Del
Papa of Nevada,
John J. Farmer, Jr., of
New Jersey,
Roy
747
JUSTICE THOMAS delivered the opinion of the Court.
This case presents the question whether state sovereign immunity
precludes petitioner Federal Maritime Commission (FMC or
Commission) from adjudicating a private party's complaint that a
state-run port has violated the Shipping Act of 1984, 46 U. S. C.
App. § 1701
et seq. (1994 ed. and Supp. V). We hold that
state sovereign immunity bars such an adjudicative proceeding.
I
On five occasions, South Carolina Maritime Services, Inc.
(Maritime Services), asked respondent South Carolina State Ports
Authority (SCSP A) for permission to berth a cruise ship, the M/V
Tropic Sea, at the SCSP A's port facilities in Charleston,
South Carolina. Maritime Services intended to offer cruises on the
M/V
Tropic Sea originating from the Port of Charleston. Some
of these cruises would stop in the Bahamas while others would
merely travel in international waters before returning to
Charleston with no intervening ports of call. On all of these
trips, passengers would be permitted to participate in gambling
activities while on board.
The SCSP A repeatedly denied Maritime Services' requests,
contending that it had an established policy of denying berths in
the Port of Charleston to vessels whose primary purpose was
gambling. As a result, Maritime Serv-
Cooper of North Carolina,
Wayne Stenehjem of North
Dakota,
Betty D. Montgomery of Ohio,
W A. Drew
Edmondson of Oklahoma,
Hardy Myers of Oregon,
D.
Michael Fisher of Pennsylvania,
Sheldon Whitehouse of
Rhode Island,
Charles M. Condon of South Carolina,
Mark
Barnett of South Dakota,
Paul G.
Summers of
Tennessee,
John Cornyn of Texas,
Mark L. Shurtleff of
Utah,
William H. Sorrell of Vermont,
Randolph A.
Beales of Virginia,
Christine O.
Gregoire of
Washington,
Darrell V. McGraw of West Virginia, and
Hoke
MacMillan of Wyoming; for the Charleston Naval Complex
Redevelopment Authority by C.
Jonathan Benner; and for the
National Governors Association et al. by
Richard Ruda and
James I. Crowley.
748
748 FEDERAL MARITIME COMM'N
v. SOUTH
CAROLINA PORTS AUTHORITY
ices filed a complaint with the FMC,l contending that the SCSP
A's refusal to provide berthing space to the M/V
Tropic Sea
violated the Shipping Act. Maritime Services alleged in its
complaint that the SCSPA had implemented its antigambling policy in
a discriminatory fashion by providing berthing space in Charleston
to two Carnival Cruise Lines vessels even though Carnival offered
gambling activities on these ships. Maritime Services therefore
complained that the SCSPA had unduly and unreasonably preferred
Carnival over Maritime Services in violation of 46 U. S. C. App. §
1709(d)(4) (1994 ed., Supp. V),2 and unreasonably refused to deal
or negotiate with Maritime Services in violation of § 1709(b)(10).3
App. 14-15. It further alleged that the SCSPA's unlawful actions
had inflicted upon Maritime Services a "loss of profits, loss of
earnings, loss of sales, and loss of business opportunities."
Id., at 15.
To remedy its injuries, Maritime Services prayed that the FMC:
(1) seek a temporary restraining order and preliminary injunction
in the United States District Court for the District of South
Carolina "enjoining [the SCSP A] from utilizing its discriminatory
practice to refuse to provide berthing space and passenger services
to Maritime Services;"4
1 See 46 U. S. C. App. § 1710(a) (1994 ed.) ("Any person may
file with the Commission a sworn complaint alleging a violation of
this chapter ... and may seek reparation for any injury caused to
the complainant by that violation").
2 Section 1709(d)(4) provides that "[n]o marine terminal
operator may give any undue or unreasonable preference or advantage
or impose any undue or unreasonable prejudice or disadvantage with
respect to any person."
3 Section 1709(b)(1O) prohibits a common carrier from
"unreasonably refus[ing] to deal or negotiate."
4 See § 1710(h)(1) (1994 ed.) ("In connection with any
investigation conducted under this section, the Commission may
bring suit in a district court of the United States to enjoin
conduct in violation of this chapter. Upon a showing that standards
for granting injunctive relief by courts of equity are met and
after notice to the defendant, the court may grant a temporary
restraining order or preliminary injunction for a period not to
749
(2) direct the SCSPA to pay reparations to Maritime Services as
well as interest and reasonable attorneys' fees; 5 (3) issue an
order commanding, among other things, the SCSP A to cease and
desist from violating the Shipping Act; and (4) award Maritime
Services "such other and further relief as is just and proper."
Id., at 16.
Consistent with the FMC's Rules of Practice and Procedure,
Maritime Services' complaint was referred to an Administrative Law
Judge (ALJ). See 46 CFR § 502.223 (2001). The SCSPA then filed an
answer, maintaining,
inter alia, that it had adhered to its
antigambling policy in a nondiscriminatory manner. It also filed a
motion to dismiss, asserting, as relevant, that the SCSP A, as an
arm of the State of South Carolina, was "entitled to Eleventh
Amendment immunity" from Maritime Services' suit. App. 41. The
SCSPA argued that "the Constitution prohibits Congress from passing
a statute authorizing Maritime Services to file [this] Complaint
before the Commission and, thereby, sue the State of South Carolina
for damages and injunctive relief."
Id., at 44.
The ALJ agreed, concluding that recent decisions of this Court
"interpreting the 11th Amendment and State sovereign immunity from
private suits ... require[d] that [Maritime Services']
complaint be dismissed." App. to Pet. for Cert. 49a (emphasis in
original). Relying on
Seminole Tribe of Fla. v.
Florida, 517 U.
S. 44 (1996), in which we held that Congress, pursuant to its
Article I powers, cannot abrogate
exceed 10 days after the Commission has issued an order
disposing of the issues under investigation. Any such suit shall be
brought in a district in which the defendant resides or transacts
business").
5 See § 1710(g) (1994 ed., Supp. V) ("For any complaint filed
within 3 years after the cause of action accrued, the Commission
shall, upon petition of the complainant and after notice and
hearing, direct payment of reparations to the complainant for
actual injury (which, for purposes of this subsection, also
includes the loss of interest at commercial rates compounded from
the date of injury) caused by a violation of this chapter plus
reasonable attorney's fees").
750
750 FEDERAL MARITIME COMM'N
v. SOUTH
CAROLINA PORTS AUTHORITY
state sovereign immunity, the ALJ reasoned that "[i]f federal
courts that are established under Article III of the Constitution
must respect States' 11th Amendment immunity and Congress is
powerless to override the States' immunity under Article I of the
Constitution, it is irrational to argue that an agency like the
Commission, created under an Article I statute, is free to
disregard the 11th Amendment or its related doctrine of State
immunity from
private suits." App. to Pet. for Cert. 59a
(emphasis in original). The ALJ noted, however, that his decision
did not deprive the FMC of its "authority to look into [Maritime
Services'] allegations of Shipping Act violations and enforce the
Shipping Act."
Id., at 60a. For example, the FMC could
institute its own formal investigatory proceeding, see 46 CFR §
502.282 (2001), or refer Maritime Services' allegations to its
Bureau of Enforcement, App. to Pet. for Cert. 60a-61a.
While Maritime Services did not appeal the ALJ's dismissal of
its complaint, the FMC on its own motion decided to review the
ALJ's ruling to consider whether state sovereign immunity from
private suits extends to proceedings before the Commission.
Id., at 29a-30a. It concluded that "[t]he doctrine of state
sovereign immunity ... is meant to cover proceedings before
judicial tribunals, whether Federal or state, not executive branch
administrative agencies like the Commission."
Id., at 33a.
As a result, the FMC held that sovereign immunity did not bar the
Commission from adjudicating private complaints against state-run
ports and reversed the ALJ's decision dismissing Maritime Services'
complaint.
Id., at 35a.
The SCSPA filed a petition for review, and the United States
Court of Appeals for the Fourth Circuit reversed. Observing that
"any proceeding where a federal officer adjudicates disputes
between private parties and unconsenting states would not have
passed muster at the time of the Constitution's passage nor after
the ratification of the Eleventh Amendment," the Court of Appeals
reasoned that "[s]uch an
751
adjudication is equally as invalid today, whether the forum be a
state court, a federal court, or a federal administrative agency."
243 F.3d
165, 173 (2001). Reviewing the "precise nature" of the
procedures employed by the FMC for resolving private complaints,
the Court of Appeals concluded that the proceeding "walks, talks,
and squawks very much like a lawsuit" and that "[i]ts placement
within the Executive Branch cannot blind us to the fact that the
proceeding is truly an adjudication."
Id., at 174. The Court
of Appeals therefore held that because the SCSP A is an arm of the
State of South Carolina,6 sovereign immunity precluded the FMC from
adjudicating Maritime Services' complaint, and remanded the case
with instructions that it be dismissed.
Id., at 179.
We granted the FMC's petition for certiorari, 534 U. S. 971
(2001), and now affirm.
II
Dual sovereignty is a defining feature of our Nation's
constitutional blueprint. See
Gregory v.
Ashcroft,
501 U. S. 452,
457 (1991). States, upon ratification of the Constitution, did not
consent to become mere appendages of the Federal Government.
Rather, they entered the Union "with their sovereignty intact."
Blatchford v.
Native Village of Noatak,
501 U. S. 775, 779
(1991). An integral component of that "residuary and inviolable
sovereignty," The Federalist No. 39, p. 245
(C. Rossiter ed.
1961) (J. Madison), retained by
6The SCSPA was created by the State of South Carolina "as an
instrumentality of the State," for, among other purposes,
"develop[ing] and improv[ing] the harbors or seaports of
Charleston, Georgetown and Port Royal for the handling of
water-borne commerce from and to any part of [South Carolina] and
other states and foreign countries." S. C. Code Ann. § 54-3-130
(1992). The United States Court of Appeals for the Fourth Circuit
has ruled that the SCSPA is protected by South Carolina's sovereign
immunity because it is an arm of the State, see,
e.
g., Ristow v.
South Carolina Ports Authority,
58 F.3d
1051 (1995), and no party to this case contests that
determination.
752
752 FEDERAL MARITIME COMM'N
v. SOUTH
CAROLINA PORTS AUTHORITY
the States is their immunity from private suits. Reflecting the
widespread understanding at the time the Constitution was drafted,
Alexander Hamilton explained:
"It is inherent in the nature of sovereignty not to be amenable
to the suit of an individual without its consent. This is
the general sense and the general practice of mankind; and the
exemption, as one of the attributes of sovereignty, is now enjoyed
by the government of every State of the Union. Unless, therefore,
there is a surrender of this immunity in the plan of the
convention, it will remain with the States .... " Id., No.
81, at 487-488 (emphasis in original).
States, in ratifying the Constitution, did surrender a portion
of their inherent immunity by consenting to suits brought by sister
States or by the Federal Government. See
Alden v.
Maine, 527 U.
S. 706, 755 (1999). Nevertheless, the Convention did not
disturb States' immunity from private suits, thus firmly enshrining
this principle in our constitutional framework. "The leading
advocates of the Constitution assured the people in no uncertain
terms that the Constitution would not strip the States of sovereign
immunity."
Id., at 716.
The States' sovereign immunity, however, fell into peril in the
early days of our Nation's history when this Court held in
Chisholm v.
Georgia, 2 Dall. 419 (1793), that Article
III authorized citizens of one State to sue another State in
federal court. The "decision 'fell upon the country with a profound
shock.'"
Alden, supra, at 720 (quoting 1 C. Warren, The
Supreme Court in United States History 96 (rev. ed. 1926)). In
order to overturn
Chisholm, Congress quickly passed the
Eleventh Amendment and the States ratified it speedily. The
Amendment clarified that "[t]he 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,
753
or by Citizens or Subjects of any Foreign State." We have since
acknowledged that the
Chisholm decision was erroneous. See,
e. g., Alden, 527 U. S., at 721-722.
Instead of explicitly memorializing the full breadth of the
sovereign immunity retained by the States when the Constitution was
ratified, Congress chose in the text of the Eleventh Amendment only
to "address the specific provisions of the Constitution that had
raised concerns during the ratification debates and formed the
basis of the
Chisholm decision."
Id., at 723. As a
result, the Eleventh Amendment does not define the scope of the
States' sovereign immunity; it is but one particular
exemplification of that immunity. Cf.
Blatchford, supra, at
779 ("[W]e have understood the Eleventh Amendment to stand not so
much for what it says, but for the presupposition of our
constitutional structure which it confirms").
III
We now consider whether the sovereign immunity enjoyed by States
as part of our constitutional framework applies to adjudications
conducted by the FMC. Petitioner FMC and respondent United States 7
initially maintain that the Court of Appeals erred because
sovereign immunity only shields States from exercises of "judicial
power" and FMC adjudications are not judicial proceedings. As
support for their position, they point to the text of the Eleventh
Amendment and contend that "[t]he Amendment's reference to
'judicial Power' and to 'any suit in law or equity' clearly mark it
as an immunity from judicial process." Brief for United States
15.
7While the United States is a party to this case and agrees with
the FMC that state sovereign immunity does not preclude the
Commission from adjudicating Maritime Services' complaint against
the SCSPA, it is nonetheless a respondent because it did not seek
review of the Court of Appeals' decision below. See this Court's
Rule 12.6. The United States instead opposed the FMC's petition for
certiorari. See Brief for United States in Opposition.
754
754 FEDERAL MARITIME COMM'N
v. SOUTH
CAROLINA PORTS AUTHORITY
For purposes of this case, we will assume,
arguendo, that
in adjudicating complaints filed by private parties under the
Shipping Act, the FMC does not exercise the judicial power of the
United States. Such an assumption, however, does not end our
inquiry as this Court has repeatedly held that the sovereign
immunity enjoyed by the States extends beyond the literal text of
the Eleventh Amendment.8 See,
e. g., Alden, supra (holding
that sovereign immunity shields States from private suits in state
courts pursuant to federal causes of action);
Blatchford v.
Native Village of Noatak, 501 U. S. 775 (1991)
(applying state sovereign immunity to suits by Indian tribes);
Principality of Monaco v.
Mississippi, 292 U. S. 313 (1934)
(applying state sovereign immunity to suits by foreign nations);
Ex parte New York, 256 U. S. 490 (1921) (applying state
sovereign immunity to admiralty proceedings);
Smith v.
Reeves, 178 U.
S. 436 (1900) (applying state sovereign immunity to suits by
federal corporations);
Hans v.
Louisiana, 134 U. S. 1 (1890)
(applying state sovereign immunity to suits by a State's own
citizens under federal-question jurisdiction). Adhering to that
well-reasoned precedent, see Part II,
supra, we must
determine whether the sovereign immunity embedded in our
constitutional structure and retained by the States when they
joined the Union extends to FMC adjudicative proceedings.
A
"[L]ook[ing] first to evidence of the original understanding of
the Constitution,"
Alden, 527 U. S., at 741, as well as
8 To the extent that JUSTICE BREYER, looking to the text of the
Eleventh Amendment, suggests that sovereign immunity only shields
States from "the '[j]udicial power of the United States,'"
post, at 777 (dissenting opinion), he "engage[s] in the type
of ahistorical literalism we have rejected in interpreting the
scope of the States' sovereign immunity since the discredited
decision in
Chisholm," Alden v.
Maine, 527 U. S. 706, 730
(1999). Furthermore, it is 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.
755
early congressional practice, see
id., at 743-744, we
find a relatively barren historical record, from which the parties
draw radically different conclusions. Petitioner FMC, for instance,
argues that state sovereign immunity should not extend to
administrative adjudications because "[t]here is no evidence that
state immunity from the adjudication of complaints by
executive
officers was an established principle at the time of the
adoption of the Constitution." Brief for Petitioner 28 (emphasis in
original). The SCSP A, on the other hand, asserts that it is more
relevant that "Congress did not attempt to subject the States to
private suits before federal administrative tribunals" during the
early days of our Republic. Brief for Respondent SCSPA 19.
In truth, the relevant history does not provide direct guidance
for our inquiry. The Framers, who envisioned a limited Federal
Government, could not have anticipated the vast growth of the
administrative state. See
Alden, supra, at 807 (SOUTER, J.,
dissenting) ("The proliferation of Government, State and Federal,
would amaze the Framers, and the administrative state with its
reams of regulations would leave them rubbing their eyes"). Because
formalized administrative adjudications were all but unheard of in
the late 18th century and early 19th century, the dearth of
specific evidence indicating whether the Framers believed that the
States' sovereign immunity would apply in such proceedings is
unsurprising.
This Court, however, has applied a presumption-first explicitly
stated in
Hans v.
Louisiana, supra-that the
Constitution was not intended to "rais[e] up" any proceedings
against the States that were "anomalous and unheard of when the
Constitution was adopted."
Id., at 18. We therefore
attribute great significance to the fact that States were not
subject to private suits in administrative adjudications at the
time of the founding or for many years thereafter. For instance,
while the United States asserts that "state entities have long been
subject to similar administrative
756
756 FEDERAL MARITIME COMM'N
v. SOUTH
CAROLINA PORTS AUTHORITY
enforcement proceedings," Reply Brief for United States 12, the
earliest example it provides did not occur until 1918, see
id., at 14 (citing
California Canneries Co. v.
Southern Pacific Co., 51 1. C. C. 500 (1918)).
B
To decide whether the
Hans presumption applies here,
however, we must examine FMC adjudications to determine whether
they are the type of proceedings from which the Framers would have
thought the States possessed immunity when they agreed to enter the
Union.
In another case asking whether an immunity present in the
judicial context also applied to administrative adjudications, this
Court considered whether ALJ s share the same absolute immunity
from suit as do Article III judges. See
Butz v.
Economou, 438
U. S. 478 (1978). Examining in that case the duties performed
by an ALJ, this Court observed:
"There can be little doubt that the role of the modern federal
hearing examiner or administrative law judge ... is 'functionally
comparable' to that of a judge. His powers are often, if not
generally, comparable to those of a trial judge: He may issue
subpoenas, rule on proffers of evidence, regulate the course of the
hearing, and make or recommend decisions. More importantly, the
process of agency adjudication is currently structured so as to
assure that the hearing examiner exercises his independent judgment
on the evidence before him, free from pressures by the parties or
other officials within the agency." Id., at 513 (citation
omitted).
Beyond the similarities between the role of an ALJ and that of a
trial judge, this Court also noted the numerous common features
shared by administrative adjudications and judicial
proceedings:
"[F]ederal administrative law requires that agency adjudication
contain many of the same safeguards as are
757
available in the judicial process. The proceedings are adversary
in nature. They are conducted before a trier of fact insulated from
political influence. A party is entitled to present his case by
oral or documentary evidence, and the transcript of testimony and
exhibits together with the pleadings constitute the exclusive
record for decision. The parties are entitled to know the findings
and conclusions on all of the issues of fact, law, or discretion
presented on the record." Ibid. (citations omitted).
This Court therefore concluded in
Butz that ALJ s were
"entitled to absolute immunity from damages liability for their
judicial acts."
Id., at 514.
Turning to FMC adjudications specifically, neither the
Commission nor the United States disputes the Court of Appeals'
characterization below that such a proceeding "walks, talks, and
squawks very much like a lawsuit." 243 F. 3d, at 174. Nor do they
deny that the similarities identified in
Butz between
administrative adjudications and trial court proceedings are
present here. See 46 CFR § 502.142 (2001).
A review of the FMC's Rules of Practice and Procedure confirms
that FMC administrative proceedings bear a remarkably strong
resemblance to civil litigation in federal courts. For example, the
FMC's Rules governing pleadings are quite similar to those found in
the Federal Rules of Civil Procedure. A case is commenced by the
filing of a complaint. See 46 CFR § 502.61 (2001); Fed. Rule Civ.
Proc. 3. The defendant then must file an answer, generally within
20 days of the date of service of the complaint, see § 502.64(a);
Rule 12(a)(1), and may also file a motion to dismiss, see §
502.227(b)(1); Rule 12(b). A defendant is also allowed to file
counterclaims against the plaintiff. See § 502.64(d); Rule 13. If a
defendant fails to respond to a complaint, default judgment may be
entered on behalf of the plaintiff. See § 502.64(b); Rule 55.
Intervention is also allowed. See § 502.72; Rule 24.
758
758 FEDERAL MARITIME COMM'N
v. SOUTH
CAROLINA PORTS AUTHORITY
Likewise, discovery in FMC adjudications largely mirrors
discovery in federal civil litigation. See 46 U. S. C. App. §
1711(a)(1) (1994 ed.) (instructing that in FMC adjudicatory
proceedings "discovery procedures ... , to the extent practicable,
shall be in conformity with the rules applicable in civil
proceedings in the district courts of the United States"). In both
types of proceedings, parties may conduct depositions, see,
e. g., 46 CFR § 502.202 (2001); Fed. Rule Civ. Proc.
28, which are governed by similar requirements. Compare §§
502.202,502.203, and 502.204, with Rules 28, 29, 30, and 31.
Parties may also discover evidence by: (1) serving written
interrogatories, see § 502.205; Rule 33; (2) requesting that
another party either produce documents, see § 502.206(a)(1); Rule
34(a)(1), or allow entry on that party's property for the purpose
of inspecting the property or designated objects thereon, §
502.206(a)(2); Rule 34(a)(2); and (3) submitting requests for
admissions, § 502.207; Rule 36. And a party failing to obey
discovery orders in either type of proceeding is subject to a
variety of sanctions, including the entry of default judgment. See
§ 502.210(a); Rule 37(b)(2).
Not only are discovery procedures virtually indistinguishable,
but the role of the ALJ, the impartial officer9 designated to hear
a case, see § 502.147, is similar to that of an Article III judge.
An ALJ has the authority to "arrange and give notice of hearing."
Ibid. At that hearing, he may
"prescribe the order in which evidence shall be presented;
dispose of procedural requests or similar matters; hear and rule
upon motions; administer oaths and affirmations; examine witnesses;
direct witnesses to testify or produce evidence available to them
which will aid in the determination of any question of fact in
issue; rule
9 See 46 CFR § 502.224 (2001) (requiring that ALJ s be shielded
from political influence in a manner consistent with the
Administrative Procedure Act).
759
upon offers of proof ... and dispose of any other matter that
normally and properly arises in the course of proceedings."
Ibid.
The ALJ also fixes "the time and manner of filing briefs," §
502.221(a), which contain findings of fact as well as legal
argument, see § 502.221(d)(1). After the submission of these
briefs, the ALJ issues a decision that includes "a statement of
findings and conclusions, as well as the reasons or basis therefor,
upon all the material issues presented on the record, and the
appropriate rule, order, section, relief, or denial thereof." §
502.223. Such relief may include an order directing the payment of
reparations to an aggrieved party. See 46 U. S. C. App. § 1710(g)
(1994 ed., Supp. V); 46 CFR § 502.251 (2001). The ALJ's ruling
subsequently becomes the final decision of the FMC unless a party,
by filing exceptions, appeals to the Commission or the Commission
decides to review the ALJ's decision "on its own initiative." §
502.227(a)(3). In cases where a complainant obtains reparations, an
ALJ may also require the losing party to pay the prevailing party's
attorney's fees. See 46 U. S. C. App. § 1710(g); 46 CFR § 502.254
(2001).
In short, the similarities between FMC proceedings and civil
litigation are overwhelming. In fact, to the extent that situations
arise in the course of FMC adjudications "which are not covered by
a specific Commission rule," the FMC's own Rules of Practice and
Procedure specifically provide that "the Federal Rules of Civil
Procedure will be followed to the extent that they are consistent
with sound administrative practice." 10 § 502.12.
10 In addition, "[u]nless inconsistent with the requirements of
the Administrative Procedure Act and [the FMC's Rules of Practice
and Procedure], the Federal Rules of Evidence [are] applicable" in
FMC adjudicative proceedings. § 502.156.
760
760 FEDERAL MARITIME COMM'N
v. SOUTH
CAROLINA PORTS AUTHORITY
C
The preeminent purpose of state sovereign immunity is to accord
States the dignity that is consistent with their status as
sovereign entities. See
In re Ayers, 123 U. S. 443, 505
(1887). "The founding generation thought it 'neither becoming nor
convenient that the several States of the Union, invested with that
large residuum of sovereignty which had not been delegated to the
United States, should be summoned as defendants to answer the
complaints of private persons.'''
Alden, 527 U. S., at 748
(quoting
In re Ayers, supra, at 505).
Given both this interest in protecting States' dignity and the
strong similarities between FMC proceedings and civil litigation,
we hold that state sovereign immunity bars the FMC from
adjudicating complaints filed by a private party against a
nonconsenting State. Simply put, if the Framers 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. Cf.
Alden, supra, at 749
("Private suits against nonconsenting States ... present 'the
indignity of subjecting a State to the coercive process of judicial
tribunals at the instance of private parties,'
regardless of the
forum" (quoting
In re Ayers, supra, at 505) (citations
omitted; emphasis added)). The affront to a State's dignity does
not lessen when an adjudication takes place in an administrative
tribunal as opposed to an Article III court.ll In both instances, a
State is required to defend itself in an adversarial proceeding
11 One, in fact, could argue that allowing a private party to
haul a State in front of such an administrative tribunal
constitutes a greater insult to a State's dignity than requiring a
State to appear in an Article III court presided over by a judge
with life tenure nominated by the President of the United States
and confirmed by the United States Senate.
761
against a private party before an impartial federal officerP
Moreover, it would be quite strange to prohibit Congress from
exercising its Article I powers to abrogate state sovereign
immunity in Article III judicial proceedings, see
Seminole
Tribe, 517 U. S., at 72, but permit the use of those same Article I
powers to create court-like administrative tribunals where
sovereign immunity does not apply.13
D
The United States suggests two reasons why we should distinguish
FMC administrative adjudications from judicial proceedings for
purposes of state sovereign immunity. Both of these arguments are
unavailing.
1
The United States first contends that sovereign immunity should
not apply to FMC adjudications because the Commission's orders are
not self-executing. See Brief for United States 18-21. Whereas a
court may enforce a judgment through the exercise of its contempt
power, the FMC cannot enforce its own orders. Rather, the
Commission's orders
12 Contrary to the suggestion contained in JUSTICE BREYER'S
dissenting opinion, our "basic analogy" is not "between a federal
administrative proceeding triggered by a private citizen and a
private citizen's lawsuit against a State" in a State's own courts.
Post, at 779. Rather, as our discussion above makes clear,
the more apt comparison is between a complaint filed by a private
party against a State with the FMC and a lawsuit brought by a
private party against a State in federal court.
13 While JUSTICE BREYER asserts by use of analogy that this case
implicates the First Amendment right of citizens to petition the
Federal Government for a redress of grievances, see
ibid.,
the Constitution no more protects a citizen's right to litigate
against a State in front of a federal administrative tribunal than
it does a citizen's right to sue a State in federal court. Both
types of proceedings were "anomalous and unheard of when the
Constitution was adopted,"
Hans v.
Louisiana,
134 U. S. 1, 18
(1890), and a private party plainly has no First Amendment right to
haul a State in front of either an Article III court or a federal
administrative tribunal.
762
762 FEDERAL MARITIME COMM'N
v. SOUTH
CAROLINA PORTS AUTHORITY
can only be enforced by a federal district court. See,
e.
g., 46 U. S. C. App. § 1712(e) (1994 ed.) (enforcement of
civil penalties); §§ 1713(c) and (d) (enforcement of nonreparation
and reparation orders).
The United States presents a valid distinction between the
authority possessed by the FMC and that of a court. For purposes of
this case, however, it is a distinction without a meaningful
difference. To the extent that the United States highlights this
fact in order to suggest that a party alleged to have violated the
Shipping Act is not coerced to participate in FMC proceedings, it
is mistaken. The relevant statutory scheme makes it quite clear
that, absent sovereign immunity, States would effectively be
required to defend themselves against private parties in front of
the FMC.
A State seeking to contest the merits of a complaint filed
against it by a private party must defend itself in front of the
FMC or substantially compromise its ability to defend itself at
all. For example, once the FMC issues a nonreparation order, and
either the Attorney General or the injured private party seeks
enforcement of that order in a federal district court,14 the
sanctioned party is
not permitted to litigate the merits of
its position in that court. See § 1713(c) (limiting district court
review to whether the relevant order "was properly made and duly
issued"). Moreover, if a party fails to appear before the FMC, it
may not then argue the merits of its position in an appeal of the
Commission's determination filed under 28 U. S. C. §
2342(3)(B)(iv). See
United States v.
L. A. Tucker Truck
Lines, Inc., 344
U. S. 33, 37 (1952) ("Simple fairness to those who are engaged
in the tasks of administration, and to litigants, requires as a
general rule that courts should not topple over administrative
decisions unless the administrative body not only has erred but
14 A reparation order issued by the FMC, by contrast, may be
enforced in a United States district court only in an action
brought by the injured private party. See Part IV-B,
infra.
46 U. S. C. App. § 1713(d) (1994 ed.).
763
has erred against objection made at the time appropriate under
its practice").
Should a party choose to ignore an order issued by the FMC, the
Commission may impose monetary penalties for each day of
noncompliance. See 46 U. S. C. App. § 1712(a) (1994 ed., Supp. V).
The Commission may then request that the Attorney General of the
United States seek to recover the amount assessed by the Commission
in federal district court, see § 1712(e) (1994 ed.), and a State's
sovereign immunity would not extend to that action, as it is one
brought by the United States. Furthermore, once the FMC issues an
order assessing a civil penalty, a sanctioned party may not later
contest the merits of that order in an enforcement action brought
by the Attorney General in federal district court. See
ibid.
(limiting review to whether the assessment of the civil penalty was
"regularly made and duly issued");
United States v.
Interlink Systems, Inc., 984 F.2d
79, 83
(CA2 1993) (holding that review of whether an
order was "regularly made and duly issued" does not include review
of the merits of the FMC's order).
Thus, any party, including a State, charged in a complaint by a
private party with violating the Shipping Act is faced with the
following options: appear before the Commission in a bid to
persuade the FMC of the strength of its position or stand
defenseless once enforcement of the Commission's nonreparation
order or assessment of civil penalties is sought in federal
district court.15 To conclude that this choice does
15While JUSTICE BREYER argues that States' access to "full
judicial review" of the Commission's orders mitigates any coercion
to participate in FMC adjudicative proceedings,
post, at
784, he earlier concedes that a State must appear before the
Commission in order "to obtain full judicial review of an adverse
agency decision in a court of appeals,"
post, at 783. This
case therefore does not involve a situation where Congress has
allowed a party to obtain full
de novo judicial review of
Commission orders without first appearing before the Commission,
and we express no opinion as to whether sovereign immunity would
apply to FMC adjudicative proceedings under such circumstances.
764
764 FEDERAL MARITIME COMM'N
v. SOUTH
CAROLINA PORTS AUTHORITY
not coerce a State to participate in an FMC adjudication would
be to blind ourselves to reality.16
The United States and JUSTICE BREYER maintain that any such
coercion to participate in FMC proceedings is permissible because
the States have consented to actions brought by the Federal
Government. See
Alden, 527 U. S., at 755-756 ("In ratifying
the Constitution, the States consented to suits brought by ... the
Federal Government"). The Attorney General's decision to bring an
enforcement action against a State after the conclusion of the
Commission's proceedings, however, does not retroactively convert
an FMC adjudication initiated and pursued by a private party into
one initiated and pursued by the Federal Government. The
prosecution of a complaint filed by a private party with the FMC is
plainly not controlled by the United States, but rather is
controlled by that private party; the only duty assumed by the FMC,
and hence the United States, in conjunction with a private
complaint is to assess its merits in an impartial manner. Indeed,
the FMC does not even have the discretion to refuse to adjudicate
complaints brought by private parties. See,
e. g.,
243 F. 3d, at 176 ("The FMC had no choice but to adjudicate this
dispute"). As a result, the United States plainly does not
"exercise ... political responsibility" for such complaints, but
instead has impermissibly effected "a broad delegation to private
persons to sue nonconsenting States." 17
Alden, supra, at
756.
16 JUSTICE BREYER'S observation that private citizens may
pressure the Federal Government in a variety of ways to take
other actions that affect States is beside the point. See
post, at 783-784. Sovereign immunity concerns are not
implicated, for example, when the Federal Government enacts a rule
opposed by a State. See
post, at 784. It is an entirely
different matter, however, when the Federal Government attempts to
coerce States into answering the complaints of private parties in
an adjudicative proceeding. See Part III-C,
supra.
17Moreover, a State obviously will not know
ex ante
whether the Attorney General will choose to bring an enforcement
action. Therefore, it is
765
The United States next suggests that sovereign immunity should
not apply to FMC proceedings because they do not present the same
threat to the financial integrity of States as do private judicial
suits. See Brief for United States 21. The Government highlights
the fact that, in contrast to a nonreparation order, for which the
Attorney General may seek enforcement at the request of the
Commission, a reparation order may be enforced in a United States
district court only in an action brought by the private party to
whom the award was made. See 46 U. S. C. App. § 1713(d)(1). The
United States then points out that a State's sovereign immunity
would extend to such a suit brought by a private party. Brief for
United States 21.
This argument, however, reflects a fundamental misunderstanding
of the purposes of sovereign immunity. While state sovereign
immunity serves the important function of shielding state
treasuries and thus preserving "the States' ability to govern in
accordance with the will of their citizens,"
Alden, supra,
at 750-751, the doctrine's central purpose is to "accord the States
the respect owed them as" joint sovereigns. See
Puerto Rico
Aqueduct and Sewer Authority v.
Metcalf &
Eddy,
Inc., 506 U. S.
139, 146 (1993); see Part III
-C, supra. It is
for this reason, for instance, that sovereign immunity applies
regardless of whether a private plaintiff's suit is for monetary
damages or some other type of relief. See
Seminole Tribe,
517 U. S., at 58 ("[W]e have often made it clear that the relief
sought by a plaintiff suing
the mere prospect that he may do so that coerces a State to
participate in FMC proceedings. For if a State does not present its
arguments to the Commission, it will have all but lost any
opportunity to defend itself in the event that the Attorney General
later decides to seek enforcement of a Commission order or the
Commission's assessment of civil penalties. See
supra, at
762-764.
766
766 FEDERAL MARITIME COMM'N
v. SOUTH
CAROLINA PORTS AUTHORITY
a State is irrelevant to the question whether the suit is barred
by the Eleventh Amendment").
Sovereign immunity does not merely constitute a defense to
monetary liability or even to all types of liability. Rather, it
provides an immunity from suit. The statutory scheme, as
interpreted by the United States, is thus no more permissible than
if Congress had allowed private parties to sue States in federal
court for violations of the Shipping Act but precluded a court from
awarding them any relief.
It is also worth noting that an FMC order that a State pay
reparations to a private party may very well result in the
withdrawal of funds from that State's treasury. A State subject to
such an order at the conclusion of an FMC adjudicatory proceeding
would either have to make the required payment to the injured
private party or stand in violation of the Commission's order. If
the State were willfully and knowingly to choose noncompliance, the
Commission could assess a civil penalty of up to $25,000 a day
against the State. See 46 U. S. C. App. § 1712(a) (1994 ed., Supp.
V). And if the State then refused to pay that penalty, the Attorney
General, at the request of the Commission, could seek to recover
that amount in a federal district court; because that action would
be one brought by the Federal Government, the State's sovereign
immunity would not extend to it.
To be sure, the United States suggests that the FMC's statutory
authority to impose civil penalties for violations of reparation
orders is "doubtful." Reply Brief for United States 7. The relevant
statutory provisions, however, appear on their face to confer such
authority. For while reparation orders and nonreparation orders are
distinguished in other parts of the statutory scheme, see,
e. g., 46 U. S. C. App. §§ 1713(c) and (d) (1994
ed.), the provision addressing civil penalties makes no such
distinction. See § 1712(a) (1994 ed., Supp. V) ("Whoever violates
... a Commission order is liable to the United States for a civil
penalty"). The United
767
States, moreover, does not even dispute that the FMC could
impose a civil penalty on a State for failing to obey a
nonreparation order, which, if enforced by the Attorney General,
would also result in a levy upon that State's treasury.
IV
Two final arguments raised by the FMC and the United States
remain to be addressed. Each is answered in part by reference to
our decision in
Seminole Tribe.
A
The FMC maintains that sovereign immunity should not bar the
Commission from adjudicating Maritime Services' complaint because
"[t]he constitutional necessity of uniformity in the regulation of
maritime commerce limits the States' sovereignty with respect to
the Federal Government's authority to regulate that commerce."
Brief for Petitioner 29. This Court, however, has already held that
the States' sovereign immunity extends to cases concerning maritime
commerce. See,
e. g., Ex parte New York, 256 U. S. 490 (1921).
Moreover,
Seminole Tribe precludes us from creating a new
"maritime commerce" exception to state sovereign immunity. Although
the Federal Government undoubtedly possesses an important interest
in regulating maritime commerce, see U. S. Const., Art. I, § 8, cl.
3, we noted in
Seminole Tribe that "the background principle
of state sovereign immunity embodied in the Eleventh Amendment is
not so ephemeral as to dissipate when the subject of the suit is an
area ... that is under the exclusive control of the Federal
Government," 18 517 U. S., at 72. Thus, "[e]ven when the
Constitu-
18JUSTICE BREYER apparently does not accept this proposition,
see
post, at 776-778, maintaining that it is not supported
by the text of the Tenth Amendment. The principle of state
sovereign immunity enshrined in our constitutional framework,
however, is not rooted in the Tenth Amendment. See Part II,
supra. Moreover, to the extent that JUSTICE BREYER ar-
768
768 FEDERAL MARITIME COMM'N
v. SOUTH
CAROLINA PORTS AUTHORITY
tion vests in Congress complete lawmaking authority over a
particular area, the Eleventh Amendment prevents congressional
authorization of suits by private parties against unconsenting
States."
Ibid. Of course, the Federal Government retains
ample means of ensuring that state-run ports comply with the
Shipping Act and other valid federal rules governing ocean-borne
commerce. The FMC, for example, remains free to investigate alleged
violations of the Shipping Act, either upon its own initiative or
upon information supplied by a private party, see,
e.
g., 46 CFR § 502.282 (2001), and to institute its own
administrative proceeding against a staterun port, see 46 U. S. C.
App. § 1710(c) (1994 ed.); 46 CFR § 502.61(a) (2001). Additionally,
the Commission "may bring suit in a district court of the United
States to enjoin conduct in violation of [the Act]." 46 U. S. C.
App. § 1710(h)(1).19 Indeed, the United States has advised us that
the Court of Appeals' ruling below "should have little practical
effect on the FMC's enforcement of the Shipping Act," Brief for
United States in Opposition 20, and we have no reason to believe
that our decision to affirm that judgment will lead to the parade
of horribles envisioned by the FMC.
B
Finally, the United States maintains that even if sovereign
immunity were to bar the FMC from adjudicating a private
gues that the Federal Government's Article I power "[t]o
regulate Commerce with foreign Nations, and among the several
States," U. S. Const., Art. I, § 8, cl. 3, allows it to authorize
private parties to sue nonconsenting States, see
post, at
777-778, his quarrel is not with our decision today but with our
decision in
Seminole Tribe of Fla. v.
Florida,
517 U. S. 44
(1996). See
id., at 72.
19 For these reasons, private parties remain "perfectly free to
complain to the Federal Government about unlawful state activity"
and "the Federal Government [remains] free to take subsequent legal
action."
Post, at 776 (BREYER, J., dissenting). The only
step the FMC may not take, consistent with this Court's sovereign
immunity jurisprudence, is to adjudicate a dispute between a
private party and a nonconsenting State.
769
party's complaint against a state-run port for purposes of
issuing a reparation order, the FMC should not be precluded from
considering a private party's request for other forms of relief,
such as a cease-and-desist order. See Brief for United States
32-34. As we have previously noted, however, the primary function
of sovereign immunity is not to protect state treasuries, see Part
III-C,
supra, but to afford the States the dignity and
respect due sovereign entities. As a result, we explained in
Seminole Tribe that "the relief sought by a plaintiff suing
a State is irrelevant to the question whether the suit is barred by
the Eleventh Amendment." 517 U. S., at 58. We see no reason why a
different principle should apply in the realm of administrative
adjudications.
***
While some might complain that our system of dual sovereignty is
not a model of administrative convenience, see,
e.
g., post, at 785-786 (BREYER, J., dissenting), that
is not its purpose. Rather, "[t]he 'constitutionally mandated
balance of power' between the States and the Federal Government was
adopted by the Framers to ensure the protection of 'our fundamental
liberties.'"
Atascadero State Hospital v.
Scanlon,
473 U. S. 234,
242 (1985) (quoting
Garcia v.
San Antonio Metropolitan
Transit Authority, 469 U. S. 528, 572 (1985)
(Powell, J., dissenting)). By guarding against encroachments by the
Federal Government on fundamental aspects of state sovereignty,
such as sovereign immunity, we strive to maintain the balance of
power embodied in our Constitution and thus to "reduce the risk of
tyranny and abuse from either front."
Gregory v.
Ashcroft, 501 U. S., at 458. Although the Framers likely did
not envision the intrusion on state sovereignty at issue in to
day's case, we are nonetheless confident that it is contrary to
their constitutional design, and therefore affirm the judgment of
the Court of Appeals.
It is so ordered.
770
770 FEDERAL MARITIME COMM'N
v. SOUTH
CAROLINA PORTS AUTHORITY
STEVENS, J., dissenting
JUSTICE STEVENS, dissenting.
JUSTICE BREYER has explained why the Court's recent sovereign
immunity jurisprudence does not support to day's decision. I join
his opinion without reservation, but add these words to emphasize
the weakness of the two predicates for the majority's holding.
Those predicates are, first, the Court's recent decision in
Alden v.
Maine, 527 U. S. 706 (1999), and
second, the "preeminent" interest in according States the "dignity"
that is their due.
Ante, at 760.
JUSTICE SOUTER has already demonstrated that
Alden's
creative "conception of state sovereign immunity ... is true
neither to history nor to the structure of the Constitution." 527
U. S., at 814 (dissenting opinion). And I have previously explained
that the "dignity" rationale is "'embarrassingly insufficient,'"
Seminole Tribe of Fla. v.
Florida, 517 U. S. 44, 97 (1996)
(dissenting opinion; citation omitted), in part because "Chief
Justice Marshall early on laid to rest the view that the purpose of
the Eleventh Amendment was to protect a State's dignity,"
id., at 96-97 (citing
Cohens v.
Virginia, 6
Wheat. 264, 406-407 (1821)).
This latter point is reinforced by the legislative history of
the Eleventh Amendment. It is familiar learning that the Amendment
was a response to this Court's decision in
Chisholm v.
Georgia, 2 Dall. 419 (1793). Less recognized, however, is
that
Chisholm necessarily decided two jurisdictional issues:
that the Court had personal jurisdiction over the state defendant,
and that it had subject-matter jurisdiction over the case.1 The
first proposed draft of a constitutional amendment responding to
Chisholm-introduced in the House of Representatives in
February 1793, on the day after
Chisholm was decided-would
have overruled the first
1 See Nelson, Sovereign Immunity as a Doctrine of Personal
Jurisdiction, 115 Harv. L. Rev. 1561, 1565-1566 (2002).
771
holding, but not the second.2 That proposal was not adopted.
Rather, a proposal introduced the following day in the Senate,3
which was "cast in terms that we associate with subject matter
jurisdiction,"4 provided the basis for the present text of the
Eleventh Amendment.
This legislative history suggests that the Eleventh Amendment is
best understood as having overruled
Chisholm's
subject-matter jurisdiction holding, thereby restricting the
federal courts' diversity jurisdiction. However, the Amendment left
intact
Chisholm's personal jurisdiction holding: that the
Constitution does not immunize States from a federal court's
process. If the paramount concern of the Eleventh Amendment's
framers had been protecting the so-called "dignity" interest of the
States, surely Congress would have endorsed the first proposed
amend-
2 The House proposal read: "[N]o state shall be liable to be
made a party defendant, in any of the judicial courts, established,
or which shall be established under the authority of the United
States, at the suit of any person or persons, whether a citizen or
citizens, or a foreigner or foreigners, or of any body politic or
corporate, whether within or without the United States."
Id., at 1602, and n. 211 (quoting Proceedings of the United
States House of Representatives (Feb. 19, 1793), Gazette of the
United States, Feb. 20, 1793, reprinted in 5 Documentary History of
the Supreme Court of the United States, 1789-1800, pp. 605-606 (M.
Marcus ed. 1994)) (internal quotation marks omitted).
3 The Senate proposal read: "The Judicial Power of the United
States shall not extend to any Suits in Law or Equity commenced or
prosecuted against anyone of the United States by Citizens of
another State or by Citizens or Subjects of any foreign State."
Nelson,
supra, at 1603, and n. 212 (quoting Resolution in
the United States Senate (Feb. 20, 1793), reprinted in 5
Documentary History of the Supreme Court,
supra, at 607608)
(internal quotation marks omitted). The Senate version closely
tracked the ultimate language of the Eleventh Amendment. See U. S.
Const., Arndt. 11 ("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").
4 Nelson,
supra, at 1603.
772
772 FEDERAL MARITIME COMM'N
v. SOUTH
CAROLINA PORTS AUTHORITY
BREYER, J., dissenting
ment granting the States immunity from process, rather than the
later proposal that merely delineates the subjectmatter
jurisdiction of courts. Moreover, as Chief Justice Marshall
recognized, a subject-matter reading of the Amendment makes sense,
considering the States' interest in avoiding their creditors. See
Cohens v.
Virginia, 6 Wheat., at 406-407.
The reasons why the majority in
Chisholm concluded that
the "dignity" interests underlying the sovereign immunity of
English Monarchs had not been inherited by the original 13 States
remain valid today. See,
e. g., Seminole Tribe of Fla., 517
U. S., at 95-97 (STEVENS, J., dissenting). By extending the
untethered "dignity" rationale to the context of routine federal
administrative proceedings, to day's decision is even more
anachronistic than
Alden.
JUSTICE BREYER, with whom JUSTICE STEVENS, JUSTICE SOUTER, and
JUSTICE GINSBURG join, dissenting.
The Court holds that a private person cannot bring a complaint
against a State to a federal administrative agency where the agency
(1) will use an internal adjudicative process to decide if the
complaint is well founded, and (2) if so, proceed to court to
enforce the law. 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.
In saying this, I do not simply reiterate the dissenting views set
forth in many of the Court's recent sovereign immunity decisions.
See,
e. g., Kimel v.
Florida Bd. of
Regents, 528 U. S.
62 (2000);
Alden v.
Maine, 527 U. S. 706 (1999);
College Savings Bank v.
Florida Prepaid Postsecondary Ed.
Expense Bd., 527
U. S. 666 (1999); Seminole Tribe of Fla. v.
Florida, 517 U.
S. 44 (1996). For even were I to believe that those decisions
properly stated the law-which I do not-I still could not accept the
Court's conclusion here.
773
I
At the outset one must understand the constitutional nature of
the legal proceeding before us. The legal body conducting the
proceeding, the Federal Maritime Commission, is an "independent"
federal agency. Constitutionally speaking, an "independent" agency
belongs neither to the Legislative Branch nor to the Judicial
Branch of Government. Although Members of this Court have referred
to agencies as a "fourth branch" of Government,
FTC v.
Ruberoid Co., 343 U. S. 470, 487 (1952)
(Jackson, J., dissenting), the agencies, even "independent"
agencies, are more appropriately considered to be part of the
Executive Branch. See
Freytag v.
Commissioner,
501 U. S. 868,
910 (1991) (SCALIA, J., concurring in part and concurring in
judgment). The President appoints their chief administrators,
typically a Chairman and Commissioners, subject to confirmation by
the Senate. Cf.
Bowsher v.
Synar, 478 U. S. 714, 723
(1986). The agencies derive their legal powers from congressionally
enacted statutes. And the agencies enforce those statutes, i.
e., they "execute" them, in part by making rules or by
adjudicating matters in dispute. Cf.
Panama Refining Co. v.
Ryan, 293 U. S. 388, 428-429 (1935).
The Court long ago laid to rest any constitutional doubts about
whether the Constitution permitted Congress to delegate rulemaking
and adjudicative powers to agencies.
E. g.,
ICC v.
Cincinnati, N. 0. &
T. P. R. Co., 167 U. S. 479, 494-495
(1897) (permitting rulemaking);
Crowell v.
Benson,
285 U. S. 22, 46
(1932) (permitting adjudication);
Commodity Futures Trading
Comm'n v.
Schor, 478 U. S. 833, 852 (1986)
(same). That, in part, is because the Court established certain
safeguards surrounding the exercise of these powers. See,
e.
g., A. L. A. Schechter Poultry Corp. v.
United
States, 295 U. S.
495 (1935) (nondelegation doctrine);
Crowell, supra
(requiring judicial review). And the Court denied that those
activities as safeguarded, however much they might
resemble
the activities of a legislature or court, fell within the
774
774 FEDERAL MARITIME COMM'N
v. SOUTH
CAROLINA PORTS AUTHORITY
BREYER, J., dissenting
scope of Article I or Article III of the Constitution.
Schechter Poultry, supra, at 529-530;
Crowell, supra,
at 50-53; see also
INS v.
Chadha, 462 U. S. 919, 953, n. 16
(1983) (agency's use of rulemaking "resemble[s]," but is not,
lawmaking). Consequently, in exercising those powers, the agency is
engaging in an Article II, Executive Branch activity. And the
powers it is exercising are powers that the Executive Branch of
Government must possess if it is to enforce modern law through
administration.
This constitutional understanding explains why both commentators
and courts have often attached the prefix "quasi" to descriptions
of an agency's rulemaking or adjudicative functions.
E. g.,
Humphrey's Executor v.
United States, 295 U. S. 602, 629
(1935); 3 C. Koch, Administrative Law and Practice § 12.13 (2d ed.
1997); Shapiro, The Choice of Rulemaking or Adjudication in the
Development of Administrative Policy, 78 Harv. L. Rev. 921, 954-958
(1965); Friendly, The Federal Administrative Agencies: The Need for
Better Definition of Standards, 75 Harv. L. Rev. 863, 869-870
(1962). The terms
"quasi legislative" and
"quasi
adjudicative" indicate that the agency uses legislative
like
or court
like procedures but that it is not,
constitutionally speaking, either a legislature or a court. See
Whitman v.
American Trucking Assns., Inc., 531 U. S. 457, 472-473
(2001);
Freytag, supra, at 910 (SCALIA, J., concurring in
part and concurring in judgment).
The case before us presents a fairly typical example of a
federal administrative agency's use of agency adjudication.
Congress has enacted a statute, the Shipping Act of 1984 (Act or
Shipping Act), 46 U. S. C. App. § 1701
et seq. (1994 ed. and
Supp. V), which, among other things, forbids marine terminal
operators to discriminate against terminal users. § 1709(d)(4)
(1994 ed., Supp. V). The Act grants the Federal Maritime Commission
the authority to administer the Act. The law grants the Commission
the authority to enforce the Act in a variety of ways, for example,
by making rules and
775
regulations, § 1716 (1994 ed.), by issuing or revoking licenses,
§ 1718 (1994 ed., Supp. V), and by conducting investigations and
issuing reports, see generally § 1710 (1994 ed. and Supp. V). It
also permits a private person to file a complaint, which the
Commission is to consider. § 1710(a) (1994 ed.). Interestingly
enough, it does not say that the Commission must determine the
merits of the complaint through agency adjudication, see § 1710(g)
(1994 ed., Supp. V)-though, for present purposes, I do not see that
this statutory lacuna matters.
Regardless, the Federal Maritime Commission has decided to
evaluate complaints through an adjudicative process. That process
involves assignment to an administrative law judge, 46 CFR §
502.146(a) (2001), a hearing, an initial decision, §§ 502.147,
502.223, Commission review, and a final Commission decision, §
502.227, followed by federal appellate court review, 28 U. S. C. §
2342(3)(B). The initial hearing, like a typical court hearing,
involves a neutral decisionmaker, an opportunity to present a case
or defense through oral or documentary evidence, a right to
cross-examination, and a written record that typically constitutes
the basis for decision. 46 CFR § 502.154 (2001). But unlike a
typical court proceeding, the agency process also may involve
considerable hearsay, resolution of factual disputes through the
use of "official notice," § 502.156; see also 5 U. S. C. § 556, and
final decisionmaking by a Commission that remains free to disregard
the initial decision and decide the matter on its own-indeed
through the application of substantive as well as procedural rules,
that it, the Commission, itself has created. See 46 CFR §§ 502.226,
502.227, 502.230 (2001); see also 46 U. S. C. App. § 1716 (1994
ed.) (rulemaking authority); 46 CFR §§ 502.51-502.56 (2001)
(same).
The outcome of this process is often a Commission order, say, an
order that tells a party to cease and desist from certain activity
or that tells one party to pay money damages (called "reparations")
to another. The Commission cannot
776
776 FEDERAL MARITIME COMM'N
v. SOUTH
CAROLINA PORTS AUTHORITY
BREYER, J., dissenting
itself enforce such an order. See 46 U. S. C. App. § 1712(e).
Rather, the Shipping Act says that, to obtain enforcement of an
order providing for money damages, the private party beneficiary of
the order must obtain a court order. § 1713(d). It adds that, to
obtain enforcement of other commission orders, either the private
party or the Attorney General must go to court. § 1713(c). It also
permits the Commission to seek a court injunction prohibiting any
person from violating the Shipping Act. § 1710(g) (1994 ed., Supp.
V). And it authorizes the Commission to assess civil penalties
(payable to the United States) against a person who fails to obey a
Commission order; but to collect the penalties, the Commission,
again, must go to court. §§ 1712(a), (c) (1994 ed. and Supp.
V).
The upshot is that this case involves a typical Executive Branch
agency exercising typical Executive Branch powers seeking to
determine whether a particular person has violated federal law. Cf.
2 K. Davis & R. Pierce, Administrative Law Treatise 37-38
(1994) (describing typical agency characteristics); cf. also
SEC v.
Chenery Corp., 332 U. S. 194 (1947). The
particular person in this instance is a state entity, the South
Carolina State Ports Authority, and the agency is acting in
response to the request of a private individual. But at first blush
it is difficult to see why these special circumstances matter.
After all, the Constitution created a Federal Government empowered
to enact laws that would bind the States and it empowered that
Federal Government to enforce those laws against the States. See
Knickerbocker Ice Co. v.
Stewart, 253 U. S. 149, 160
(1920). It also left private individuals perfectly free to complain
to the Federal Government about unlawful state activity, and it
left the Federal Government free to take subsequent legal action.
Where then can the Court find its constitutional principle-the
principle that the Constitution forbids an Executive Branch agency
to determine through ordinary adjudicative processes whether such a
private complaint is
777
justified? As I have said, I cannot find that principle anywhere
in the Constitution.
II
The Court's principle lacks any firm anchor in the
Constitution's text. The Eleventh Amendment cannot help. It
says:
"The Judicial power of the United States shall not ...
extend to any suit ... commenced or prosecuted against one of the
... States by Citizens of another State." (Emphasis added.)
Federal administrative agencies do not exercise the "[j]udicial
power of the United States." Compare
Crowell v.
Benson, 285 U.
S. 22 (1932) (explaining why ordinary agency adjudication, with
safeguards, is not an exercise of Article III power), with
Freytag v.
Commissioner, 501 U. S., at 890-891 (Tax
Court, a special Article I court, exercises Article III power), and
Williams v.
United States, 289 U. S. 553, 565566
(1933) (same as to Court of Claims). Of course, this Court has read
the words "Citizens of another State" as if they also said "citizen
of the same State."
Hans v.
Louisiana, 134 U. S. 1 (1890). But it
has never said that the words "[j]udicial power of the United
States" mean "the executive power of the United States." Nor should
it.
The Tenth Amendment cannot help. It says:
"The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved to
the States respectively, or to the people."
The Constitution has "delegated to the United States" the power
here in question, the power "[t]o regulate Commerce with foreign
Nations, and among the several States." U. S. Const., Art. I, § 8,
cl. 3; see
California v.
United States, 320 U. S.
577, 586 (1944). The Court finds within this delegation a hidden
reservation, a reservation that, due to sovereign immunity,
embodies the legal principle the Court enunciates.
778
778 FEDERAL MARITIME COMM'N
v. SOUTH
CAROLINA PORTS AUTHORITY
BREYER, J., dissenting
But the text of the Tenth Amendment says nothing about any such
hidden reservation, one way or the other.
Indeed, the Court refers for textual support only to an earlier
case, namely,
Alden v.
Maine, 527 U. S. 706 (1999)
(holding that sovereign immunity prohibits a private citizen from
suing a State in state court), and, through
Alden, to the
texts that
Alden mentioned. These textual references
include: (1) what Alexander Hamilton described as a constitutional
"postulate," namely, that the States retain their immunity from
"suits, without their consent," unless there has been a "surrender"
of that immunity "in the plan of the convention,"
id., at
730 (internal quotation marks omitted); (2) what the
Alden
majority called "the system of federalism established by the
Constitution,"
ibid.; and (3) what the
Alden majority
called "the constitutional design,"
id., at 731. See also
id., at 760-762 (SOUTER, J., dissenting) (noting that the
Court's opinion nowhere relied on constitutional text).
Considered purely as constitutional text, these
words"constitutional design," "system of federalism," and "plan of
the convention"-suffer several defects. Their language is highly
abstract, making them difficult to apply. They invite differing
interpretations at least as much as do the Constitution's own broad
liberty-protecting phrases, such as "due process of law" or the
word "liberty" itself. And compared to these latter phrases, they
suffer the additional disadvantage that they do not actually appear
anywhere in the Constitution. Cf. generally
Harmelin v.
Michigan, 501
U. S. 957, 985-986 (1991). Regardless, unless supported by
considerations of history, of constitutional purpose, or of related
consequence, those abstract phrases cannot support to day's
result.
III
Conceding that its conception of sovereign immunity is
ungrounded in the Constitution's text, see
ante, at 751-753,
767-768, n. 18, the Court attempts to support its holding with
history. But this effort is similarly destined to fail, because
779
the very history to which the majority turned in
Alden
here argues against the Court's basic analogy-between a federal
administrative proceeding triggered by a private citizen and a
private citizen's lawsuit against a State.
In
Alden the Court said that feudal law had created an
18th-century legal norm to the effect that" 'no lord could be sued
by a vassal in his own court, but each petty lord was subject to
suit in the courts of a higher lord.'" 527 U. S., at 741. It added
that the Framers' silence about the matter had woven that feudal
"norm" into the "constitutional design," i.
e., had made it
part of our "system of federalism" unchanged by the" 'plan of the
convention.'"
Id., at 714717, 730, 740-743. And that norm,
said the
Alden Court, by analogy forbids a citizen
("vassal") to sue a State ("lord") in the "lord's" own courts. Here
that same norm argues against immunity, for the forum at issue is
federal-belonging by analogy to the "higher lord." And total
18th-century silence about state immunity in Article I proceedings
would argue against, not in favor of, immunity.
In any event, the 18th century was not totally silent. The
Framers enunciated in the "plan of the convention" the principle
that the Federal Government may sue a State without its consent.
See,
e. g., West Virginia v.
United States, 479 U. S. 305, 311
(1987). They also described in the First Amendment the right of a
citizen to petition the Federal Government for a redress of
grievances. See also
United States v.
Cruikshank,
92 U. S. 542,
552-553 (1876); cf. generally Mark, The Vestigial Constitution: The
History and Significance of the Right to Petition, 66 Ford. L. Rev.
2153, 2227 (1998). The first principle applies here because only
the Federal Government, not the private party, can-in light of this
Court's recent sovereign immunity jurisprudence, see
Seminole
Tribe of Fla. v.
Florida, 517 U. S. 44 (1996)-bring
the ultimate court action necessary legally to force a State to
comply with the relevant federal law. See
id., at 71, n. 14.
The second principle applies here be-
780
780 FEDERAL MARITIME COMM'N
v. SOUTH
CAROLINA PORTS AUTHORITY
BREYER, J., dissenting
cause a private citizen has asked the Federal Government to
determine whether the State has complied with federal law and, if
not, to take appropriate legal action in court.
Of course these two principles apply only through analogy. (The
Court's decision also relies on analogy-one that jumps the
separation-of-powers boundary that the Constitution establishes.)
Yet the analogy seems apt. A private citizen, believing that a
State has violated federal law, seeks a determination by an
Executive Branch agency that he is right; the agency will make that
determination through use of its own adjudicatory agency processes;
and, if the State fails to comply, the Federal Government may bring
an action against the State in federal court to enforce the federal
law.
Twentieth-century legal history reinforces the appropriateness
of this description. The growth of the administrative state has led
this Court to determine that administrative agencies are not
Article III courts, see
Crowell v.
Benson, 285 U. S.,
at 49-53, that they have broad discretion to proceed either through
agency adjudication or through rulemaking,
SEC v.
Chenery
Corp., 332 U. S., at 203 ("[T]he choice made between proceeding
by general rule or by individual,
ad hoc litigation is one
that lies primarily in the informed discretion of the
administrative agency"), and that they may bring administrative
enforcement proceedings against States. At a minimum these
historically established legal principles argue strongly against
any effort to analogize the present proceedings to a lawsuit
brought by a private individual against a State in a state court or
to an Eleventh Amendment type lawsuit brought by a private
individual against a State in a federal court.
This is not to say that the analogy (with a citizen petitioning
for federal intervention) is, historically speaking, a perfect one.
As the Court points out, the Framers may not have "anticipated the
vast growth of the administrative state," and the history of their
debates "does not provide direct guidance."
Ante, at 755.
But the Court is wrong to
781
ignore the relevance and importance of what the Framers did say.
And it is doubly wrong to attach "great" legal "significance" to
the absence of 18th- and 19th-century administrative agency
experience. See
ibid. Even if those alive in the 18th
century did not "anticipat[e] the vast growth of the administrative
state,"
ibid., they did write a Constitution designed to
provide a framework for Government across the centuries, a
framework that is flexible enough to meet modern needs. And we
cannot read their silence about particular means as if it were an
instruction to forbid their use.
IV
The Court argues that the basic purpose of "sovereign immunity"
doctrine-namely, preservation of a State's "dignity" -requires
application of that doctrine here. It rests this argument upon (1)
its efforts to analogize agency proceedings to court proceedings,
and (2) its claim that the agency proceedings constitute a form of
"compulsion" exercised by a private individual against the State.
As I have just explained, I believe its efforts to analogize
agencies to courts are, constitutionally speaking, too frail to
support its conclusion. Neither can its claim of "compulsion"
provide the necessary support.
Viewed from a purely legal perspective, the "compulsion" claim
is far too weak. That is because the private individual lacks the
legal authority to compel the State to comply with the law. For as
I have noted, in light of the Court's recent sovereign immunity
decisions, if an individual does bring suit to enforce the
Commission's order, see 46 U. S. C. App. § 1713 (1994 ed.), the
State would arguably be free to claim sovereign immunity. See
Seminole Tribe of Fla., supra. Only the Federal Government,
acting through the Commission or the Attorney General, has the
authority to compel the State to act.
In a typical instance, the private individual will file a
complaint, the agency will adjudicate the complaint, and the
782
782 FEDERAL MARITIME COMM'N
v. SOUTH
CAROLINA PORTS AUTHORITY
BREYER, J., dissenting
agency will reach a decision. The State subsequently may take
the matter to court in order to obtain judicial review of any
adverse agency ruling, but, if it does so, its opponent in that
court proceeding is
not a private party, but the agency
itself. 28 U. S. C. § 2344. (And unlike some other administrative
schemes, see,
e. g., Verizon Md. Inc. v.
Public Servo
Comm'n of Md., ante, at 651-653 (SOUTER, J., concurring), the
Commission would not be a party in name only.) Alternatively, the
State may do nothing, in which case either the Commission or the
Attorney General must seek a court order compelling the State to
obey. 46 U. S. C. App. §§ 1710, 1713 (1994 ed. and Supp. V). The
Commission, but not a private party, may assess a penalty against
the State for noncompliance, § 1712; and only a court acting at the
Commission's request can compel compliance with a penalty order. In
sum, no one can legally compel the State's obedience to the
Shipping Act's requirements without a court order, and in no case
would a court issue such an order (absent a State's voluntary
waiver of sovereign immunity, see
Atascadero State Hospital
v.
Scanlon, 473 U. S. 234, 238
(1985)) absent the request of a federal agency or other federal
instrumentality.
In
Alden this Court distinguished for sovereign immunity
purposes between (a) a lawsuit brought by the Federal Government
and (b) a lawsuit brought by a private person. It held that
principles of "sovereign immunity" barred suit in the latter
instance but not the former, because the formera suit by the
Federal Government-"require[s] the exercise of political
responsibility for each suit prosecuted against a State." 527 U.
S., at 756. That same "exercise of political responsibility" must
take place here in every instance prior to the issuance of an order
that, from a legal perspective, will compel the State to obey. To
repeat: Without a court proceeding the private individual cannot
legally force the State to act, to pay, or to desist; only the
Federal Government may institute a court proceeding; and, in
deciding
783
whether to do so, the Federal Government will exercise
appropriate political responsibility. Cf.
ibid.
Viewed from a practical perspective, the Court's "compulsion"
claim proves far too much. Certainly, a private citizen's decision
to file a complaint with the Commission can produce practical
pressures upon the State to respond and eventually to comply with a
Commission decision. By appearing before the Commission, the State
will be able to obtain full judicial review of an adverse agency
decision in a court of appeals (where it will face in opposition
the Commission itself, not the private party). By appearing, the
State will avoid any potential Commission-assessed monetary
penalty. And by complying, it will avoid the adverse political,
practical, and symbolic implications of being labeled a federal
"lawbreaker."
Practical pressures such as these, however, cannot sufficiently
"affront" a State's "dignity" as to warrant constitutional
"sovereign immunity" protections, for it is easy to imagine
comparable instances of clearly lawful private citizen complaints
to Government that place a State under far greater practical
pressures to comply. No one doubts, for example, that a private
citizen can complain to Congress, which may threaten (should the
State fail to respond) to enact a new law that the State opposes.
Nor does anyone deny that a private citizen, in complaining to a
federal agency, may seek a rulemaking proceeding, which may lead
the agency (should the State fail to respond) to enact a new agency
rule that the State opposes. A private citizen may ask an agency
formally to declare that a State is not in compliance with a
statute or federal rule, even though from that formal declaration
may flow a host of legal consequences adverse to a State's
interests. See,
e. g., 42 U. S. C. § 300g-3
(Environmental Protection Agency may declare that a State is in
noncompliance with federal water quality regulations). And one can
easily imagine a legal scheme in which a private individual files a
complaint like the one before us, but asks
784
784 FEDERAL MARITIME COMM'N
v. SOUTH
CAROLINA PORTS AUTHORITY
BREYER, J., dissenting
an agency staff member to investigate the matter, which
investigation would lead to an order similar to the order at issue
here with similar legal and practical consequences.
Viewed solely in terms of practical pressures, the pressures
upon a State to respond before Congress or the agency, to answer
the private citizen's accusations, to oppose his requests for
legally adverse agency or congressional action, would seem no less
powerful than those at issue here. Once one avoids the temptation
to think (mistakenly) of an agency as a court, it is difficult to
see why the practical pressures at issue here would "affront" a
State's "dignity" any more than those just mentioned. And if the
latter create no constitutional "dignity" problem, why should the
former? The Court's answer-that "[sJovereign immunity concerns are
not implicated" unless the "Federal Government attempts to coerce
States into answering the complaints of private parties in an
adjudicative proceeding,"
ante, at 764, n. 16-simply begs
the question of
when and
why States should be
entitled to special constitutional protection.
The Court's more direct response lies in its claim that the
practical pressures here are special, arising from a set of
statutes that deprive a nonresponding State of any meaningful
judicial review of the agency's determinations. See
ante, at
760-764. The Court does not explain just what makes this kind of
pressure constitutionally special. But in any event, the Court's
response is inadequate. The statutes clearly provide the State with
full judicial review of the initial agency decision should the
State choose to seek that review. 28 U. S. C. § 2342(3)(B)(iv).
That review cannot "affront" the State's "dignity, for it takes
place in a court proceeding in which the Commission, not the
private party, will oppose the State. § 2344.
Even were that not so, Congress could easily resolve the
resulting problem by making clear that the relevant statutes
authorize full judicial review in an enforcement action brought
against a State. For that matter, one might in-
785
terpret existing statutes as permitting in such actions whatever
form of judicial review the Constitution demands. Cf.
Crowell v.
Benson, 285 U. S., at 45-47. Statutory
language that authorizes review of whether an order was "properly
made and duly issued," 46 U. S. C. App. § 1713(c), does not
forbid review that the Constitution
requires. But
even were I to make the heroic assumption (which I do not believe)
that this case implicates a reviewing court's statutory inability
to apply constitutionally requisite standards of judicial review, I
should still conclude that the Constitution permits the agency to
consider the complaint here before us. The "review standards"
problem concerns the later enforceability of the agency decision,
and the Court must consider any such problem later in the context
of a court order granting or denying review.
Ashwander v.
TV A, 297 U.
S. 288, 347 (1936) (Brandeis, J., concurring) (" 'It is not the
habit of the Court to decide questions of a constitutional nature
unless absolutely necessary to a decision of the case' ").
v
The Court cannot justify to day's decision in terms of its
practical consequences. 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 citizen's complaint has
merit. The natural result is less agency flexibility, a larger
federal bureaucracy, less fair procedure, and potentially less
effective law enforcement. See
Pension Benefit Guaranty
Corporation v.
LTV Corp., 496 U. S. 633, 654-656
(1990); cf. also Shapiro, 78 Harv. L. Rev., at 921 ("One of the
most distinctive aspects of the administrative process is the
flexibility it affords in the selection of methods for policy
formulation"). And at least one of these consequences, the forced
growth of unnecessary federal bureaucracy, undermines the very
constitutional objec-
786
786 FEDERAL MARITIME COMM'N
v. SOUTH
CAROLINA PORTS AUTHORITY
BREYER, J., dissenting
tives the Court's decision claims to serve. Cf.
Printz v.
United States, 521 U. S. 898, 959 (1997)
(STEVENS, J., dissenting) ("In the name of State's rights, the
majority would have the Federal Government create vast national
bureaucracies to implement its policies");
id., at 976-978
(BREYER, J., dissenting).
These consequences are not purely theoretical. The Court's
decision may undermine enforcement against state employers of many
laws designed to protect worker health and safety. See,
e.
g., 42 U. S. C. § 7622 (1994 ed.) (Clean Air Act); 33 U. S.
C. § 1367 (Clean Water Act); 15 U. S. C. § 2622 (Toxic Substances
Control Act); 42 U. S. C. § 6971 (1994 ed.) (Solid Waste Disposal
Act); see also
Rhode Island Dept. of Environmental
Management v.
United States, 286 F.3d
27,
36-40 (CA1 2002). And it may inhibit the development
of federal fair, rapid, and efficient informal nonjudicial
responses to complaints, for example, of improper medical care
(involving state hospitals). Cf. generally Macchiaroli, Medical
Malpractice Screening Panels: Proposed Model Legislation to Cure
Judicial Ills, 58 Geo. Wash. L. Rev. 181 (1990).
***
The Court's decision threatens to deny the Executive and
Legislative Branches of Government the structural flexibility that
the Constitution permits and which modern government demands. The
Court derives from the abstract notion of state "dignity" a
structural principle that limits the powers of both Congress and
the President. Its reasoning rests almost exclusively upon the use
of a formal analogy, which, as I have said, jumps ordinary
separation-of-powers bounds. It places "great significance" upon
the 18th-century absence of 20th-century administrative
proceedings. See
ante, at 755. And its conclusion draws
little support from considerations of constitutional purpose or
related consequence. In its readiness to rest a structural
limitation on so little evidence and in its willingness to
interpret that limitation so
787
broadly, the majority ignores a historical lesson, reflected in
a constitutional understanding that the Court adopted long ago: An
overly restrictive judicial interpretation of the Constitution's
structural constraints (unlike its protections of certain basic
liberties) will undermine the Constitution's own efforts to achieve
its far more basic structural aim, the creation of a representative
form of government capable of translating the people's will into
effective public action.
This understanding, underlying constitutional interpretation
since the New Deal, reflects the Constitution's demands for
structural flexibility sufficient to adapt substantive laws and
institutions to rapidly changing social, economic, and
technological conditions. It reflects the comparative inability of
the Judiciary to understand either those conditions or the need for
new laws and new administrative forms they may create. It reflects
the Framers' own aspiration to write a document that would
"constitute" a democratic, libertyprotecting form of government
that would endure through centuries of change. This understanding
led the New Deal Court to reject overly restrictive formalistic
interpretations of the Constitution's structural provisions,
thereby permitting Congress to enact social and economic
legislation that circumstances had led the public to demand. And it
led that Court to find in the Constitution authorization for new
forms of administration, including independent administrative
agencies, with the legal authority flexibly to implement, i.
e., to "execute," through adjudication, through rulemaking,
and in other ways, the legislation that Congress subsequently
enacted. See,
e. g., Yakus v.
United States, 321 U. S. 414 (1944);
Crowell v.
Benson, supra, at 45-47.
Where I believe the Court has departed from this basic
understanding I have consistently dissented. See,
e.
g., Kimel v.
Florida Bd. of Regents, 528 U.
S., at 92 (STEVENS, J., dissenting in part and concurring in part);
Alden v.
Maine, 527 U. S., at 760 (SOUTER, J.,
dissenting);
College Savings Bank v.
Florida Prepaid
Postsecondary Ed. Expense Bd.,
788
788 FEDERAL MARITIME COMM'N
v. SOUTH
CAROLINA PORTS AUTHORITY
BREYER, J., dissenting
527 U. S., at 693 (BREYER, J., dissenting);
Florida Prepaid
Postsecondary Ed. Expense Bd. v.
College Savings Bank,
527 U. S. 627,
648 (1999) (STEVENS, J., dissenting);
Seminole Tribe of Fla.
v.
Florida, 517 U. S., at 100 (SOUTER, J., dissenting).
These decisions set loose an interpretive principle that restricts
far too severely the authority of the Federal Government to
regulate innumerable relationships between State and citizen. Just
as this principle has no logical starting place, I fear that
neither does it have any logical stopping point.
Today's decision reaffirms the need for continued dissentunless
the consequences of the Court's approach prove anodyne, as I hope,
rather than randomly destructive, as I fear.
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