Court cuts U.S. power over states Ruling says Congress can't authorize suits to force obedience

11th Amendment cited

Federal enforcement of civil rights laws is left untouched

March 28, 1996|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON -- The Supreme Court, in a potentially sweeping shift of constitutional power from Congress to the states, put strict new curbs yesterday on congressional authority to force resistant state governments to obey federal laws and the U.S. Constitution.

The 5-4 ruling declared for the first time that state governments generally may not be coerced through federal lawsuits into doing what Congress or the Constitution commands.

In sentiment, the ruling appeared to match the strong desire among Republicans in control of Congress for a cutback of federal regulatory power and for the revival of governing authority at the state and local level.

Chief Justice William H. Rehnquist, writing for the majority, concluded that the Constitution's 11th Amendment guarantees states a broad immunity to being sued in federal courts, and that Congress lacks the power to take away that immunity.

"Even when the Constitution vests in Congress complete law-making authority," he wrote, "the 11th Amendment prevents congressional authorization of suits by private parties against unconsenting states."

Only in a narrow category of civil rights enforcement, to carry out the guarantees of specific rights in the 14th Amendment to legal equality and due process, does Congress have authority to make state governments subject to such suits, the majority stressed.

The decision produced long and scathing dissents. Justice John Paul Stevens called it "a shocking affront" to Congress. Justice David H. Souter, reading in an impassioned voice from his 92-page dissenting opinion, said the ruling left Congress without power "even to enforce a federal right that the Constitution or Congress has plainly provided."

Although the ruling dealt specifically only with states' exposure to lawsuits growing out of disputes over gambling on Indian reservations, it actually was a "case about power" between different levels of government, as Justice Stevens said in dissent.

In the constitutional exchange that seems likely to result, Congress appeared to have lost significant authority to compel states to be its partners on a wide range of social policies, from protecting the environment to regulating business, while the states gained the option of deciding for themselves when to cooperate, and when to resist.

Alan B. Morrison, a frequent advocate before the court in constitutional cases and the director of the Public Citizen Litigation Group in Washington, said the ruling created "an extremely potent form of states' rights" sure to cause "a serious diminution of the power of Congress."

Richard Ruda, chief counsel of the State and Local Legal Center in Washington, an advocacy organization for state, county and city governments, called the ruling "an important reaffirmation of state sovereignty." There remain ways to enforce federal laws, he said, so "this is not a decision which undermines our scheme of government."

The court's action nullified part of the plan Congress passed in 1988 to assure Indian tribes that they could use gambling to support their tribal economies, while clarifying a role for state governments in regulating those games.

At issue in a case appealed by the Seminole Tribe in Florida is the most profitable form of gaming for the tribes, including slot machines, casino games and electronic or computer games.

Under the 1988 law, such gambling is allowed on Indian-controlled land only in a state that permits it, under a formal compact between the state and the tribes. If a state and a tribe bog down in negotiations over creating such an agreement, tribes may sue in federal court to force the state to negotiate further.

A federal appeals court ruled in 1994 that Congress did not have authority, under its powers over Indian tribes, to take away the states' 11th Amendment immunity to lawsuit.

The Supreme Court upheld that result. The decision did not reduce Congress' power to pass laws dealing with Indian affairs, a power that is within its control under the Constitution. But it did bar the court-enforcement option that Congress chose in the 1988 Indian Gaming Regulatory Act.

Most important, the court used the Indian case as a vehicle for what appears to be a sweeping expansion of states' legal immunity. The decision overruled a 5-4 ruling in 1989 that appeared to have removed much of the immunity that states thought they had.

The 1989 decision allowed state governments to be sued in federal court by private companies to force the states to pay part of the costs of cleaning up toxic-waste pollution or dump sites.

Four of the five justices in the majority in that ruling have since left the court. All four dissenters then remain on the court and formed the core of yesterday's majority; they picked up a fifth vote from Justice Clarence Thomas, who was not on the court in 1989.

In addition to Chief Justice Rehnquist and Justice Thomas, the majority yesterday included Justices Sandra Day O'Connor, Anthony M. Kennedy and Antonin Scalia.

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