High Court Debates States’ Rights

Is federal law supreme throughout the nation, or does each state retain a sovereign right to go its own way?

Many might assume that the Civil War answered that question when the North defeated the Southern states, which had maintained that they had a sovereign right to secede.

But the Supreme Court took up that question Wednesday, and the justices did not think the answer was obvious.

In fact, the five conservative justices signaled that they are likely to come down on the side of states’ rights and rule that Maine can ignore the federal law, which mandates overtime pay for workers.

If so, a new ruling endorsing the principle of “state sovereign immunity” may well throw a wrench into the legal workings on a wide range of matters, from workplace rules and the environment to the protection of copyrights and patents.

If nothing else, Wednesday’s argument illustrated how the once-discredited notion of states’ rights has taken hold at the Supreme Court and called into doubt basic assumptions about American law.

Since the 1930s, Congress has passed a series of federal laws that, among other things, gave workers the right to be paid more for overtime, sought to stop pollution and gave authors copyright protection for their works. These laws also gave workers and citizens a right to sue violators in court.

But in recent years, a high court with a more conservative tilt has announced that states are “sovereign entities” and cannot be sued. How then can workers, environmentalists or authors defend themselves if a state agency or state university is violating federal law?

These rulings have reverberated in lower courts in the last two years. Professors at two state universities who say they are victims of age bias have been told that they cannot sue their employer under federal law, for example.

The case that brought the issue before the court again Wednesday sounds mundane.

John Alden and several fellow state probation officers in Maine were upset when they were not paid the time-and-a-half overtime rate mandated by the Fair Labor Standards Act. This federal law says that “any employer who violates [its] provisions” for minimum wages or overtime pay can be sued by the affected workers.

But the Maine workers have run into two roadblocks. First, they took their complaint to a federal court. While it was pending, the Supreme Court handed down a 1996 ruling saying that the Constitution’s 11th Amendment shields states from being sued by private parties in federal court.

Undeterred, the Maine workers took their complaint next to a state court. But Maine’s Supreme Court threw out their case in August, insisting that from the nation’s beginning unwilling states were immune from being sued in their own courts.

This ruling “rendered the federal law a dead letter,” the workers said in their appeal to the Supreme Court (Alden vs. Maine, 98-436).

The Clinton administration and a prominent labor lawyer took up their cause Wednesday, but the workers appeared to be fighting an uphill battle.

It is “a wholly extraordinary notion” to say a federal law cannot be enforced, said attorney Laurence S. Gold, a labor law expert. “Here, Congress is the sovereign, and the state is bound by federal law.”

U.S. Solicitor General Seth Waxman pointed out that the Constitution itself says federal statutes are “the supreme law of the land” and “the judges in every state shall be bound” by them.

But the court’s conservatives said that they were unmoved.

“I can’t conceive the Constitution would have been ratified if the states knew they could be sued as states in their own courts,” said Justice Anthony M. Kennedy. “I think this [notion of state immunity] was the original understanding.”

Justice Antonin Scalia agreed, saying that the Constitution created a “dual sovereign.” Some powers were given to the federal government, some to the states. But neither has the right to trample on the other, he said.

Surprisingly, both sides agreed that the high court in its 209 years had never ruled squarely on this issue.

Justice Sandra Day O’Connor, though siding with the conservatives, said she did not believe the case posed an all-or-nothing choice. The U.S. Labor Department, acting on behalf of the workers, could sue the state of Maine in federal court, she said.

But the four more liberal justices, sounding aghast, said that the court was in danger of making “a hodgepodge” of the law, as Justice Stephen G. Breyer put it. Some laws will be enforced and others will go unenforced if the courts are closed to victims, he said.

In the area of copyrights and patents, private citizens must defend their own rights, Justice Ruth Bader Ginsburg noted. Later this month, the court will take up two cases that test whether state agencies and state universities can be sued if they infringe a patent or trademark.

During Wednesday’s argument, Maine’s lawyer spoke repeatedly of what “we had agreed to” in the Constitution, as though the document were written in 1997, rather than in 1787.

“The question is what did we give up when we ratified the Constitution,” said Maine Solicitor Peter Brann. “It would violate the original bargain” if the states were now told they could be sued in their courts.

Justice David H. Souter called this claim “bizarre.”

“The Supremacy Clause makes clear beyond any argument” that federal law prevails in each state, Souter said. “We are looking for a coherent theory that [would suggest otherwise], and to be honest, I don’t see it.”

All the recent rulings on states’ rights have come on 5-4 votes, with the majority made up of Chief Justice William H. Rehnquist, joined by Justices O’Connor, Scalia, Kennedy and Clarence Thomas.

A ruling in the Maine case is due by late June. In the fall, the court will take up the cases on whether the federal law against age discrimination covers state universities.