Lead Opinion
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 (SCSPA) for permission to berth a cruise ship, the M/V Tropic Sea, at the SCSPA’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 SCSPA 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-.
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 SCSPA] from utilizing its discriminatory practice to refuse to provide berthing space and passenger services to Maritime Services;”
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 SCSPA, 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 beforе the Commission and, thereby, sue the Staté 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,
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 рroceedings 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
We granted the FMC’s petition for certiorari,
II
Dual sovereignty is a defining feature of оur Nation’s constitutional blueprint. See Gregory v. Ashcroft,
“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,
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,
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”).
Ill
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
A
“[L]ook[ing] first to evidence of the original understanding of the Constitution,” Alden,
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 “raisfej 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
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 ALJs share the same absolute immunity from suit as do Article III judges. See Butz v. Economou,
“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:
“[Fjederal administrative law requires that agency adjudication contain many of the same safeguards as areavailable 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 AUs 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.”
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 сomplaint, 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.
Not only are discovery procedures virtually indistinguishable, but the role of the ALJ, the impartial officer
“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; ruleupon offers of proof... and dispose of any other matter that normally and properly arises in the course of proceedings.” Ibid.
The AU 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 AU 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. ”
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,
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 non-consenting 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.
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
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 withоut 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,
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.,
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.
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,
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 enforcemеnt 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.,
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 privаte 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
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,
B
Finally, the United States maintains that even if sovereign immunity were to bar the FMC from adjudicating a private
* * *
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,
It is so ordered.
Notes
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”).
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.”
Section 1709(b)(10) prohibits a common carrier from “unreasonably refus[ing] to deal or negotiate.”
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
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”).
The SCSPA was created by the State of South Carolina “as an instrumentality of the State,” for, among other purposes, “developing] and improving] 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 Fоurth 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,
While 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.
To the extent that Justice Breyer, looking to the text of the Eleventh Amendment, suggests that sovereign immunity only shields States from “the ‘[jludicial 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,
See 46 CFR §502.224 (2001) (requiring that AUs be shielded from political influence in a manner consistent with the Administrative Procedure Act).
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.
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.
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.
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,
A reparation order issued by the FMC, by contrast, may be enforced in a United States district court only in an action brоught by the injured private party. See Part IV-B, infra. 46 U. S. C. App. § 1713(d) (1994 ed.).
While 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.
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.
Moreover, a State obviously will not know ex ante whether the Attorney General will choose to bring an enforcement action. Therefore, it is
Justice 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
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.
Dissenting Opinion
dissenting.
Justice Breyer has explained why the Court’s recent sovereign immunity jurisprudence does not support today’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,
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.”
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,
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 hot immunize States from a federal сourt’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
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.,
See Nelson, Sovereign Immunity as a Doctrine of Personal Jurisdiction, 115 Harv. L. Rev. 1561, 1565-1566 (2002).
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. Marсus ed. 1994)) (internal quotation marks omitted).
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 any one 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 607-608) (internal quotation marks omitted). The Senate version closely tracked the ultimate language of the Eleventh Amendment. See U. S. Const., Amdt. 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”).
Nelson, supra, at 1603.
Dissenting Opinion
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,
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.,
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. O. & T. P. R. Co.,
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,
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
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 decision-maker, 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 ordеr, 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
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.,
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 “[judicial power of the United States.” Compare Crowell v. Benson,
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 “[tjo regulate Commerce with foreign Nations, and among the several States.” U. S. Const., Art. I, § 8, cl. 3; see California v. United States,
Indeed, the Court refers for textual support only to an earlier case, namely, Alden v. Maine,
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 Cоnstitution’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,
Ill
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
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.’ ”
In any evеnt, 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,
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 Stаte 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,
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
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
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 former— a suit by the Federal Government — “require[s] the exercise of political responsibility for each suit prosecuted against a State.”
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.”
Prаctical 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
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 “[sovereign 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 thе 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
V
The Court cannot justify today’s decision in terms of its practical consequences. The decision, while permitting an agency to bring enforcement actiоns 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.,
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,
* * *
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
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, liberty-protecting 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,
Where I believe the Court has departed from this basic understanding I have consistently dissented. See, e.g., Kimel v. Florida Bd. of Regents,
Today’s decision reaffirms the need for continued dissent— unless the consequences of the Court’s approach prove anodyne, as I hope, rather than randomly destructive, as I fear.