The Untouchables

Federal laws ranging from environmental protection and occupational and consumer safety to labor protection and civil rights have been placed in jeopardy under a trio of U.S. Supreme Court decisions issued last week, sharply curtailing the laws’ enforcement against the 50 states. The rulings push state “sovereign immunity” beyond even the limits envisioned by the founding fathers and will have a profound effect on the way new federal laws are written and how they will be enforced. Ironically, they will lead to the proliferation of federal bureaucracy as the only enforcer of the nation’s law against the states.

Under the rulings, which, many constitutional scholars believe, reverse two centuries of judicial history, the states will be accountable to no one for their violation of federal laws. The Congress’ powers to enact laws that can actually be enforced against the states will be severely curtailed. And when even those laws are flouted, only Washington--not the actual victims--can sue.

The victims in one of the three cases were Maine parole officers who were denied overtime pay, required by the federal Fair Labor Standards Act. The majority of the court decided the workers could not sue in the federal courts. The workers’ case had been thrown out of the state courts earlier on the ground that sovereign immunity makes federal labor law unenforceable in the state courts. Now, more than 4.7 million state employees across the country might be left without the protection of fair-labor law.

The other two decisions, in effect, allowed the states--and their universities and other institutions--to appropriate patents, copyrights or trademarks with impunity. That is not to say that states tend to behave like outlaws or that the decisions hand them a license to steal. But when violations occur, there is little an individual can do to get a remedy, either in state or federal courts. Justice David H. Souter, writing for the dissenters, recognized the injustice of the decisions: “There is much irony in the Court’s profession that it grounds its decision on a deeply rooted historical tradition of sovereign immunity, when the Court abandons a principle nearly as inveterate . . . that where there is a right, there must be a remedy.”

The potential implications are far-reaching. Will states go scot-free when they pollute, discriminate in hiring, operate unsafe trucks or renege on debts?

Agencies such as the U.S. Department of Labor or the Environmental Protection Agency will still be able to enforce federal laws against the states, but they do not have the resources to sue for damages on behalf of individuals or companies. They have, in fact, relied heavily on private lawsuits to get federal laws enforced in the states.

The court’s fastidious defense of the states’ sovereign immunity has put the rights of millions at risk. That is too high a price to pay. A conservative court majority that in the past railed against judicial activism has imposed its own strained anti-federalist activism and appears to have elevated state interests above the rights of the individual.