Federal Maritime Commission v. South Carolina Ports Authority

Federal Maritime Commission v. South Carolina Ports Authority, 535 U.S. 743 (2002), argued 25 Feb. 2002, decided 28 May 2002 by vote of 5 to 4; Thomas for the Court, Stevens, Souter, Breyer, and Ginsburg in dissent.

A federal statute prohibits marine terminal operators from discriminating against terminal users. The Federal Maritime Commission is authorized to enforce the law. A company claimed that the South Carolina State Ports Authority had discriminatorily refused berthing space to a cruise ship, and brought an adjudicative complaint before the commission. The commission rejected the Port Authority's claim that state sovereign immunity extends to proceedings before federal administrative agencies. The Supreme Court held that state sovereign immunity bars a federal agency from adjudicating a private party's complaint against a nonconsenting state.

The text of the Eleventh Amendment restricts only the “judicial Power” of the United States, while federal administrative agencies exercise executive power. But the majority opinion candidly acknowledges that the Court's previous decisions have rendered the amendment's text essentially irrelevant. The Court currently takes state sovereign immunity to be a background structural principle that applies to federal‐law claims brought by private parties against their own states or other states, in either state court or federal court. Given those textually ungrounded decisions, the further extension of state immunity to administrative proceedings was a predictable step.

The most impressive objection to the Court's decision is not textual, but structural. State immunity does not extend to suits against states brought by the United States, rather than a private party; in such cases, the Court had previously reasoned, the suit against an unconsenting state requires an exercise of political responsibility by elected officials. The same is true of proceedings before federal administrative agencies, whose officers are appointed by the president, and who are subject to congressional oversight.

Adrian Vermeule