Power tilts further toward states

The conservative wing of the US Supreme Court has taken another major step in reordering the power balance between the states and federal government.

And it has demonstrated its resolve to pursue an aggressive federalist agenda that seeks to rein in the power of the national government when, in the majority's view, it impermissibly treads on state sovereignty.

The action came in decisions rendered in three cases on Wednesday - two involving a lawsuit by a New Jersey company against a Florida tuition savings program, and one involving a federal labor law dispute between probation officers and the state of Maine.

In all three, the essential issue was whether state sovereignty trumps federal power when individuals seek to hold states accountable under federal laws. In all three, the same five-justice majority sided with the states. "It certainly seems to be continuing the trend in favor of states' rights," says Richard Seamon, law professor at the University of South Carolina in Columbia.

In the Florida cases, the court ruled 5 to 4 that the 11th Amendment to the US Constitution bars an individual from suing a state for infringement of federal patent laws. The court also ruled 5 to 4 that states are immune from federal jurisdiction outlawing false advertising and that states do not automatically waive that immunity when they engage in national, competitive market-oriented activities.

In the Maine case, the court ruled 5 to 4 that Congress doesn't have the power to force state compliance with the federal Fair Labor Standards Act. It said such action would violate the principles of state sovereignty. The immunity applies even against federal suits filed in state court.

In announcing the majority's decision in the Maine case, Justice Anthony Kennedy said the opinion rested on "a settled doctrinal understanding ... that sovereign immunity derives not from the 11th Amendment but from the structure of the Constitution itself."

"We seek to discover ... only what the Framers and those who ratified the Constitution sought to accomplish...," the decision says. "Theirs was the unique insight that freedom is enhanced by the creation of two governments, not one."

The decision marks an important extension of the court's 1996 landmark ruling in a case involving the Florida Seminole Indian tribe. In that case, the court ruled that Congress could not authorize individuals to sue states in federal court for violations of federal law. Wednesday's decision spreads the immunity to state courts as well.

"The court could not be more fundamentally mistaken about the nature of the federal relationship," said Justice David Souter, speaking in dissent shortly after the Maine decision was announced. He said there is no historical evidence that the legal concepts supporting the majority's view in the Maine case were held by the Founding Fathers.

Throughout the 1990s, the same five-justice majority led by Chief Justice William Rehnquist has championed the cause of state sovereignty in the face of an ever expanding tangle of federal regulations and laws. "The court ... has really struck a serious blow to property interests," says David Todd, a lawyer who argued one of the Florida cases.

With almost quixotic zeal, the court's federalist wing has pressed on toward the elusive goal of adhering to a constitutional framework conceived by James Madison and other Founding Fathers in the late 1700s. The ideal was a nation with a federal government sharply limited to the areas of national defense, diplomacy, and national commerce. All other powers and areas of government regulation were to fall to the states - and to the American people.

To a strict federalist, the vast majority of federal regulations since the New Deal represent unconstitutional federal encroachments into the exclusive domain of the states. In its rulings today and in earlier rulings throughout the 1990s, the court is working to roll back the clock.

On the other side of this debate are nationalists and many liberals who say that a strong federal government is essential to a strong United States. They argue that many of the most important and progressive reforms in the nation would not have come without the strong hand of the federal government forcing states to comply with congressionally set standards and laws. These include ending slavery, enacting child-labor laws, creating the Social Security program, enforcing civil-rights laws, and building the interstate highway system.

Analysts say the trend of the court's decisions raises questions about which federal laws and reforms may apply to the states. The decisions in the Florida cases seem to set up a situation where state governments are free to engage in competitive, profit-making enterprises, and yet they are not bound by many of the same federal laws that regulate private businesses operating in interstate commerce.

Some analysts see it as an erosion of the concept of federal law being upheld as supreme. Among many strictures now in question are environmental laws, labor laws, and even some civil-rights measures. The Supreme Court has already agreed to hear a Florida case next term that will determine whether a federal age discrimination statute violates state sovereignty.

Wednesday's decision in the Maine case springs from a lawsuit filed by probation officers in the state seeking unpaid overtime compensation. The officers sued in federal court under the Fair Labor Standards Act. But the case was thrown out after the high court's Seminole decision. Having been tossed out of federal court, the officers took the next logical step. They refiled the same federal lawsuit in a Maine state court. The suit was dismissed for the same reason - state sovereignty.

The decisions in the Florida cases arose from lawsuits filed by College Savings Bank against a state board in Florida to help parents save enough to pay for their children's college tuition. College Savings, which also offers a tuition savings program, filed suit against the board for allegedly engaging in false advertising and violating College Savings's patented investment strategy.

Lawyers for the Florida board argued that because the board was an arm of the state it enjoyed sovereign immunity and thus could not be sued in federal court. College Savings countered that patent infringement and false advertising were violations of due process.