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May 29, 2002

Supremes Drop the Big One

The Supreme Court yesterday dropped a bomb against federal regulation of the economy, supposedly the core power delegated to the federal government under the Commerce Clause. In fact, this case involved a shipping controversy, an area that the federal government has retained full power since the early 19th century. Yet in FEDERAL MARITIME COMMISSION v. SOUTH CAROLINA STATE PORTS AUTHORITY, the Court ruled that private parties cannot appeal to federal agencies when they have complaints that states are violating the law. This decision not only continues the immunity of states to private lawsuit enunciated in the Kimel (2000); Alden (1999); College Savings Bank (1999);and Seminole Tribe of Fla. (1996) decisions, but radically undermines the whole system of federal regulation of the economy enacted since the New Deal. The so-called "originalists" in the rightwing majority admit that they have no basis for their decision in the Constitution's text so invoke something called the "dignity of the states" to make their radical decision. In enforcing the law, the executive branch has traditionally had two methods; (1) it can use its scarce (and often underfunded staff) to find cases worth pursuing in court, or (2) more commonly, it encourages individuals whose rights under the law have been attacked to apply themselves for relief from a federal agency, who in turn will make a decision on its merits, then seek enforcement of the decision in court. This decision has basically destroyed procedure (2) as a method to enforce justice.

As Justice Breyer argues in his withering dissent "The decision, while permitting an agency to bring enforcement actions against States, forbids it to use agency adjudication in order to help decide whether to do so. Consequently the agency must rely more heavily upon its own informal staff investigations in order to decide whether a citizens complaint has merit. The natural result is less agency flexibility, a larger federal bureaucracy, less fair procedure, and potentially less effective law enforcement." And the last point "less effective enforcement" is exactly the goal of the rightwing majority.

Now, conservatives in Congress can essentially gut the legal rights of workers, consumers and citizens against violations of the law by the states by the simple expedient of cutting funding for agencies. With little staff to do investigations and with no option by those suffering harm to pursue their own cases, justice will be undermined and denied.

This Supreme Court is step-by-step dismantling our demoracy and the ability of our federal government to pass laws to enforce economic and social justice. Inch by inch they are moving forward and, especially if they add just one or two more Justices for the even more radical doctrines promoted by the Rehnquist-Scalia-Thomas axis, we will find our whole democracy gutted by judical fiat.

Posted by Nathan at May 29, 2002 07:46 AM


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