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July 9, 2002
CONTACT: David Fish
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The Lesser of Non-Textual Evils
May Says Supreme Court Properly Diffuses Power in FMC

WASHINGTON, D.C. - In Federal Maritime Commission v. South Carolina State Ports Authority, the Supreme Court recently ruled that a state’s sovereign immunity from lawsuits under the Constitution’s 11th Amendment extends to complaints brought before federal administrative agencies—even though the Constitution’s text provides immunity only from “the judicial power of the United States.” The Court’s majority determined that the states nevertheless should be immune from agency litigation, which resembles court litigation in material respects, because state immunity is “embedded in the constitutional structure.”

In his “Fourth Branch” column published in the latest edition of Legal Times, Progress & Freedom Foundation Senior Fellow Randolph J. May explains that, although the dissenters in FMC criticize the majority’s decision for lacking “any firm anchor in the Constitution’s text,” their critique is offered in defense of independent regulatory agencies, such as the FMC, FTC, FCC, and SEC, that themselves lack any textual basis in the Constitution. Indeed, the dissenters acknowledge their position is based on flexible constitutional interpretations that “led the New Deal Court to find in the Constitution authorization for new forms of administration, including independent administrative agencies.”

Forced to choose between the two non-textual positions debated in FMC, May writes that “I see less of a threat to the liberty interests sought to be protected by the power-diffusing principles” that animate federalism than the dissents’ notions touting independent agencies “whose most notable feature is a blending of executive, legislative, and judicial powers.” According to May, “an argument that, in the end, draws support from talk of ‘new forms of administration’ that blend government powers worries me more than on grounded in talk about maintaining a healthy balance of power between the federal government and the states.”

The Progress & Freedom Foundation is a market-oriented think tank that studies the digital revolution and its implications for public policy. It is a 501(c)(3) research & educational organization.



The Progress & Freedom Foundation