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  •   Court Tending to Back States Over U.S.

    By Joan Biskupic
    Washington Post Staff Writer
    Thursday, April 1, 1999; Page

    The Supreme Court is controlled by justices who avoid bold strokes and resist rulings that would dramatically reinterpret the nation's laws. But one area remains an exception: the boundary between the powers of federal government and the states.

    In recent years, a resolute five-justice majority has been shoring up the authority of the states at the expense of Congress. And during oral arguments yesterday in an important test on where the proper balance lies, this majority appeared poised to deepen its imprint in favor of states' rights over federal authority.

    The case being heard yesterday focuses specifically on whether state workers have a right to sue for overtime wages guaranteed under federal law. But a ruling has the potential to affect the broader issue of how easily individuals who are trying to sue a state under a variety of circumstances can access the courts.

    An eventual ruling in the dispute will determine whether probation officers in Maine or state workers anywhere can sue states under the Fair Labor Standards Act. Other federalism cases to be heard this term and next will resolve whether companies can sue states for patent infringement or for producing false advertising under federal law, and whether state employees can sue for age discrimination.

    Cast more broadly, these cases offer the court a chance to further retreat from 60 years of expansively interpreted federal authority, beginning with the New Deal era. In recent years, a narrow but potent majority led by Chief Justice William H. Rehnquist has emphasized that states have legitimate interests that Congress must respect.

    In 1995, the court ruled that Congress had exceeded its authority when it banned guns near public schools. The next term, the court limited Congress's ability to make states vulnerable to lawsuits in federal court, and in 1997 it said Congress had overstepped its powers with the Brady gun control law by forcing states to use their own resources to perform background checks on gun buyers.

    In each of these cases, five justices banded together: Rehnquist and Justices Sandra Day O'Connor, Antonin Scalia, Anthony M. Kennedy and Clarence Thomas. In consistent and passionate dissent were Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

    Yesterday, the court seemed similarly divided as it considered whether Congress has the power to subject the states to the overtime provisions of fair labor law. Members of the five-justice bloc homed in on state authority and protection from lawsuits, while the others worried about how federal rights could be vindicated if states could not be sued.

    "I just can't conceive of the Constitution being ratified," Kennedy said at one point, if it meant that states thought they were giving up the protection from being sued in their own courts.

    But Breyer questioned whether if Maine won, "we're going to get some kind of hodgepodge . . . of enforcement" of federal law among the states. Representing the Maine probation officers, Laurence Gold argued that the federal guarantee of overtime rates allows state workers who have been turned down for additional pay to take their claim to state court. Siding with the workers, U.S. Solicitor General Seth P. Waxman added that the Supremacy Clause of the Constitution means federal law binds state courts. If people cannot defend their federal rights in state courts, he said, Congress's powers in the Constitution "would have been written in disappearing ink."

    But Maine Solicitor Peter Brann emphasized the 11th Amendment principle that a state cannot be sued without its consent. Thirty-six states, including Maryland and Virginia, have sided with Maine.

    The probation officers originally had sued Maine for the overtime pay in federal court, but the lawsuit was dismissed. When the workers took their case, Alden v. Maine, to state court, Maine's highest court ruled that if Congress lacks the power to abolish state sovereign immunity for federal court cases, it also lacks the power to allow related lawsuits in state court.

    © Copyright 1999 The Washington Post Company

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