Today, the Supreme Court ends its last two-week hearing session of the current term. There are two cases set for today; this dispatch deals with the second one, possibly leading to an examination of states’ rights under the Constitution’s Eleventh Amendment. The first case, on the free-speech rights of public school students, was discussed in a dispatch yesterday. The hearing on the states’ rights case will begin sometime after 11 a.m. The audio can be heard on cspan.org/supremecourt
PennEast Pipeline Co. v. New Jersey
Background: Just how the states fit into the governing scheme of the nation was strenuously debated in the colonial era, under the old Articles of Confederation, and at the Founding in Philadelphia in 1787. The reality is that the debate has continued ever since, and is still frequently contested today – as, in fact, it may be in the Supreme Court this morning. (As sometimes happens, there is a procedural issue lurking in the case that could divert the Court away from dealing with the Amendment’s scope.)
Among the lingering questions about the Amendment: Are the states sovereign powers, in any sense of the word “sovereign”? How much power did they give up when the Constitution was written? How immune are they to being sued in the federal courts, or even in their own courts? How freely can Congress command them to act, or not to act?
Most of those questions, and the history behind them, are implied in the language of the Eleventh Amendment. Today, that provision seems obscure, easy to forget by most people. In the beginning of the new nation, in the late 18th Century, however, there was no doubt of its real importance and its vitality. Here are a few of its earlier claims to historic significance: It was the first amendment put into the Constitution after the Bill of Rights. It was prompted by a fierce reaction in the states to what was actually the first major decision to be made by the Supreme Court. It took only about 11 months to make it through the labyrinth that has often made amending the Constitution seem so daunting. And it was an early warning to the Supreme Court not to flex the judicial power too expansively.
What is that Amendment? A simple command, it says that the states cannot be sued in the federal courts by citizens of another state. Gradually over time, but then almost hurriedly in the 1990s, that legal immunity has been expanded by conservative majorities in the Supreme Court, talking of state sovereignty as they newly interpreted and expanded the Amendment’s protection of the states. That more recent effort went by the slogan, “the New Federalism.”
How did the Amendment come about? In 1793, in its first big case, Chisholm v. Georgia, the Supreme Court allowed a citizen of South Carolina to file a federal court lawsuit against the state of Georgia in an attempt to collect a debt left over from the Revolutionary War, money owed for supplying military uniforms. Article III of the Constitution had, at that time, a clause allowing just such a lawsuit. Georgia, pleading that it was a sovereign, refused even to respond. The Supreme Court handed a victory to the South Carolinian, specifically rejecting the claim of state sovereignty. It said that, in America, sovereignty resided in the people, not in the states.
The phrase that had been in Article III, the constitutional basis for the Chisholm ruling, was directly erased by the Eleventh Amendment, reaffirming the early enthusiasm for states’ rights.
What does that Amendment have to do with the case coming up in the Supreme Court this morning? It is a complicated tale.
Six years ago, a consortium of natural gas companies began pursuing a permit from the federal government to build and operate a 116-mile pipeline to move natural gas from Pennsylvania to New Jersey. A big conduit, it would move 1 billion cubic feet of natural gas every day. But, to build it, the consortium needs to obtain right-of-way for the pipeline – that is, the legal right to cross property along the route of the conduit.
Federal law – the Natural Gas Act of 1938 – has always allowed the federal government to take control in that way, using what is called the power of “eminent domain.” It apparently has been understood for many years that this power can even be used against property that belongs to a state.
But that Act also allows the government to delegate that power to natural gas companies, and that has been done throughout the Act’s 83 years on the books. For all of that time, the pipeline companies have argued, it has been accepted that the companies could use that authority against all forms of property, privately owned or owned or protected by state governments.
In extended negotiations to get the rights-of-way the consortium said it needed, things appeared to be going well, until the state of New Jersey balked. The state insisted that the pipeline would interfere with existing uses of state-owned lands and lands in which the state has an interest, for such things as keeping “open space,” fostering entertainment, and promoting agriculture. The state ultimately refused to agree to the right-of-way on some 42 properties.
Ultimately, the pipeline companies got approval for their project from the Federal Energy Regulatory Commission, along with an official declaration by the agency that those companies could sue New Jersey to get the rights-of-way.
The consortium, confident on its own that it had the power to sue, had filed a series of lawsuits in federal courts to get those properties “condemned,” that is, made available as rights-of-way.
The state and several of its agencies answered those lawsuits, claiming that the Eleventh Amendment insulated them from the private companies’ lawsuits. That argument failed in a federal trial court, but it won in a federal appeals court.
The appeals court said that the Eleventh Amendment might be understood to mean that the federal government could delegate to private companies the authority to take property by eminent domain, but that court said it had significant doubts that the Amendment would allow the federal government to delegate to states its right to go to court to seize property.
In the end, though, the appeals court said it did not have to decide the constitutional question, because it found that the Natural Gas Act as written did not permit such lawsuits by the private companies. It suggested that the companies could seek help from Congress.
The gas companies took the case on to the Supreme Court, challenging not only the appeals court’s reading of the Natural Gas Act as not permitting them to sue New Jersey, but also challenging the appeals court’s interpretation of the Eleventh Amendment that led to its ruling on what the Act allowed.
The federal government urged the Court to hear the case. In doing so, the government raised a procedural point that would later lead the Court to expand the issues it intended to review.
In announcing in February that it would take up the case, the Court indicated that it would consider not only the issues raised by the pipeline companies’ appeal, but it also told lawyers to come prepared to argue whether that appeals court lacked the authority even to decide New Jersey’s case.
That is based upon the situation that, since federal regulators had approved the project, had approved the rights-of-way needs, and had approved the lawsuits by the private companies, New Jersey would have been able to challenge that only by appealing from the federal agency ruling and doing so in a different appeals court, in Washington, D.C., that has the authority to consider such an appeal. (As a matter of fact, New Jersey already has filed a challenge in that Washington tribunal, but that has been put on hold while the pipeline companies case moved through the Supreme Court in this case.)
Should the Court rule that the case had been pursued in the wrong appeals court, that could just end the case before the Justices, but revive the case New Jersey has pending in the Washington court. That outcome would likely mean that the Justices, in ruling in this case, would avoid any comments about who should win or about what the Eleventh Amendment has to say.
This facet of today’s case is a reminder that jurisdictional issues do, sometimes, get in the way of settling significant legal or constitutional questions that are of interest to a wider audience.
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After today, the Supreme Court will be finished with most of its hearings for this term. It has set a hearing for May 2 on a single case — about drug crime sentencing — that was rescheduled from an earlier date.
