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  •   In 3 Cases, High Court Shifts Power to States

    Supreme Court
    (The Post)
    By Joan Biskupic
    Washington Post Staff Writer
    Thursday, June 24, 1999; Page A1

    A divided Supreme Court broke new ground yesterday in shifting power from the federal government to the states, ruling in three related cases that substantially limited individuals' ability to sue when they believe that states have violated their rights.

    The laws at issue have the potential to affect anyone doing business with a state for example, a public employee who is owed wages or a company that thinks a state has defrauded it in some way. In the trio of contentious 5 to 4 rulings, the court made clear that in such cases, the individuals involved cannot sue the state for violating federal laws only the federal government can. The effect, some experts said, is to give little recourse to people trying to obtain federally guaranteed benefits from a state.

    Coming on the final day of the court's term, the rulings exposed the sharp ideological divide over how to balance federal and state power. Signed by five justices who were appointed or elevated by Presidents Reagan and Bush, the rulings constitute a bold assertion of states' rights and flatly reject the notion that federal laws take precedence over state authority.

    "It is the essence of our liberty that where there is a right, there is a remedy," George Washington University law professor Jonathan R. Siegel said. "If you take away [the remedy], there is a dire threat to the realization of people's rights."

    "The assumption has always been that federal law was supreme and it could be enforced in state courts," added Pepperdine law professor Douglas Kmiec.

    But the majority interpreted the Constitution's history and structure as shielding states from such suits in both state and federal courts.

    "Congress has vast power but not all power," Justice Anthony M. Kennedy declared from the court's tall mahogany bench yesterday, as he read portions of his 51-page opinion for the majority. "Congress must accord states the esteem due to them as joint participants in a federal system."

    Dissenting justices expressed outrage at the ruling, arguing that it states legal protections far beyond those intended by the framers of the Constitution.

    In a caustic 58-page opinion, also read in part from the bench, Justice David H. Souter compared the majority's effort to broaden states' rights to the failed Lochner era in the early part of the century, when the court protected business against regulation by the state. Souter predicted yesterday's ruling "will prove the equal of its earlier experiment in laissez-faire, the one being as unrealistic as the other, as indefensible, and probably as fleeting."

    Joining Kennedy in the majority in all three cases were Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor, Antonin Scalia and Clarence Thomas.

    Dissenting with Souter were Justices John Paul Stevens, Stephen G. Breyer and Ruth Bader Ginsburg. In an exceptional set of dueling opinions, Stevens and Breyer also read portions of their dissents in related cases.

    In the decision by Kennedy, Alden v. Maine, the justices ruled that state employees cannot sue states for overtime wages due under the Fair Labor Standards Act. In the two other cases, both from Florida, Rehnquist and Scalia, respectively, wrote opinions saying that companies cannot sue states for patent infringement or for engaging in false advertising in violation of federal law.

    All three cases had been closely followed not only by constitutional law scholars, but by an array of business interests that rely on federal legislation. The Association of American Publishers and other media groups, for example, had sided with the probation officers in the Maine case, arguing that if the court did not allow Congress to permit private individuals to sue states, publishers would not be able to seek damages for copyright violations.

    Three years ago, the Supreme Court ruled, by the same 5 to 4 majority, that Congress could not authorize states to be sued in court, based on the 11th Amendment, which specifically addresses federal power. The lingering questions addressed in yesterday's cases were whether states also could be protected from federal claims in state court and whether in some circumstances states could lose these protections.

    In mandating state immunity across the board yesterday, the majority went beyond the words of the Constitution, considering the document's overall structure and the events leading up to its ratification. "In light of the historical record it is difficult to conceive that the Constitution would have been adopted if it had been understood to strip the states of immunity from suit in their own courts," Kennedy wrote.

    "Underlying constitutional form," he added, "are considerations of great substance. Private suits against nonconsenting states especially suits for money damages may threaten the financial integrity of the states."

    The federal laws at issue are ones in which Congress granted individuals not only an economic benefit such as minimum wages but a right to sue states that might deny the benefit. For example, if state workers cannot win overtime pay from state employers or if a company alleges that a state university has broken copyright law, Congress said individuals could sue.

    But yesterday, the Supreme Court said that state sovereignty is overriding and Congress lacks the power in this commercial area to make states vulnerable to lawsuits. Dissenting justices pointed out in the case on wage standards that the Secretary of Labor cannot ensure compliance with the law, so the threat of individual lawsuits provides an incentive for states to comply.

    The rulings do not remove the federal government's enforcement power in a range of statutes, or its ability to allow private lawsuits when civil rights are at issue.

    Maine was in the forefront among states of resisting federal overtime requirements, but other states had been closely following the case, and the National Association of Police Organizations predicted that yesterday's court action would lead other states to disregard wage mandates for public workers.

    © 1999 The Washington Post Company

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