This case presents the question whether state sovereign immunity precludes petitioner Federal Maritime Commission (FMC or Commission) from adjudicating a private party's complaint that a state-run port has violated the Shipping Act of 1984, 46 U. S. C. App. § 1701 et seq. (1994 ed. and Supp. V). We hold that state sovereign immunity bars such an adjudicative proceeding.
I
On five occasions, South Carolina Maritime Services, Inc. (Maritime Services), asked respondent South Carolina State Ports Authority (SCSPA) for permission to berth a cruise ship, the M/V Tropic Sea, at the SCSPA's port facilities in Charleston, South Carolina. Maritime Services intended to offer cruises on the M/V Tropic Sea originating from the Port of Charleston. Some of these cruises would stop in the Bahamas while others would merely travel in international waters before returning to Charleston with no intervening ports of call. On all of these trips, passengers would be permitted to participate in gambling activities while on board.
The SCSPA repeatedly denied Maritime Services' requests, contending that it had an established policy of denying berths in the Port of Charleston to vessels whose primary purpose was gambling. As a result, Maritime Services
To remedy its injuries, Maritime Services prayed that the FMC: (1) seek a temporary restraining order and preliminary injunction in the United States District Court for the District of South Carolina "enjoining [the SCSPA] from utilizing its discriminatory practice to refuse to provide berthing space and passenger services to Maritime Services;"
Consistent with the FMC's Rules of Practice and Procedure, Maritime Services' complaint was referred to an Administrative Law Judge (ALJ). See 46 CFR § 502.223 (2001). The SCSPA then filed an answer, maintaining, inter alia, that it had adhered to its antigambling policy in a nondiscriminatory manner. It also filed a motion to dismiss, asserting, as relevant, that the SCSPA, as an arm of the State of South Carolina, was "entitled to Eleventh Amendment immunity" from Maritime Services' suit. App. 41. The SCSPA argued that "the Constitution prohibits Congress from passing a statute authorizing Maritime Services to file [this] Complaint before the Commission and, thereby, sue the State of South Carolina for damages and injunctive relief." Id., at 44.
The ALJ agreed, concluding that recent decisions of this Court "interpreting the 11th Amendment and State sovereign immunity from private suits . . . require[d] that [Maritime Services'] complaint be dismissed." App. to Pet. for Cert. 49a (emphasis in original). Relying on Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996), in which we held that Congress, pursuant to its Article I powers, cannot abrogate
While Maritime Services did not appeal the ALJ's dismissal of its complaint, the FMC on its own motion decided to review the ALJ's ruling to consider whether state sovereign immunity from private suits extends to proceedings before the Commission. Id., at 29a-30a. It concluded that "[t]he doctrine of state sovereign immunity . . . is meant to cover proceedings before judicial tribunals, whether Federal or state, not executive branch administrative agencies like the Commission." Id., at 33a. As a result, the FMC held that sovereign immunity did not bar the Commission from adjudicating private complaints against state-run ports and reversed the ALJ's decision dismissing Maritime Services' complaint. Id., at 35a.
The SCSPA filed a petition for review, and the United States Court of Appeals for the Fourth Circuit reversed. Observing that "any proceeding where a federal officer adjudicates disputes between private parties and unconsenting states would not have passed muster at the time of the Constitution's passage nor after the ratification of the Eleventh Amendment," the Court of Appeals reasoned that "[s]uch an
We granted the FMC's petition for certiorari, 534 U.S. 971 (2001), and now affirm.
II
Dual sovereignty is a defining feature of our Nation's constitutional blueprint. See Gregory v. Ashcroft, 501 U.S. 452, 457 (1991). States, upon ratification of the Constitution, did not consent to become mere appendages of the Federal Government. Rather, they entered the Union "with their sovereignty intact." Blatchford v. Native Village of Noatak, 501 U.S. 775, 779 (1991). An integral component of that "residuary and inviolable sovereignty," The Federalist No. 39, p. 245 (C. Rossiter ed. 1961) (J. Madison), retained by
States, in ratifying the Constitution, did surrender a portion of their inherent immunity by consenting to suits brought by sister States or by the Federal Government. See Alden v. Maine, 527 U.S. 706, 755 (1999). Nevertheless, the Convention did not disturb States' immunity from private suits, thus firmly enshrining this principle in our constitutional framework. "The leading advocates of the Constitution assured the people in no uncertain terms that the Constitution would not strip the States of sovereign immunity." Id., at 716.
The States' sovereign immunity, however, fell into peril in the early days of our Nation's history when this Court held in Chisholm v. Georgia, 2 Dall. 419 (1793), that Article III authorized citizens of one State to sue another State in federal court. The "decision `fell upon the country with a profound shock.' " Alden, supra, at 720 (quoting 1 C. Warren, The Supreme Court in United States History 96 (rev. ed. 1926)). In order to overturn Chisholm, Congress quickly passed the Eleventh Amendment and the States ratified it speedily. The Amendment clarified that "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State,
Instead of explicitly memorializing the full breadth of the sovereign immunity retained by the States when the Constitution was ratified, Congress chose in the text of the Eleventh Amendment only to "address the specific provisions of the Constitution that had raised concerns during the ratification debates and formed the basis of the Chisholm decision." Id., at 723. As a result, the Eleventh Amendment does not define the scope of the States' sovereign immunity; it is but one particular exemplification of that immunity. Cf. Blatchford, supra, at 779 ("[W]e have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms").
III
We now consider whether the sovereign immunity enjoyed by States as part of our constitutional framework applies to adjudications conducted by the FMC. Petitioner FMC and respondent United States
A
"[L]ook[ing] first to evidence of the original understanding of the Constitution," Alden, 527 U. S., at 741, as well as
In truth, the relevant history does not provide direct guidance for our inquiry. The Framers, who envisioned a limited Federal Government, could not have anticipated the vast growth of the administrative state. See Alden, supra, at 807 (Souter, J., dissenting) ("The proliferation of Government, State and Federal, would amaze the Framers, and the administrative state with its reams of regulations would leave them rubbing their eyes"). Because formalized administrative adjudications were all but unheard of in the late 18th century and early 19th century, the dearth of specific evidence indicating whether the Framers believed that the States' sovereign immunity would apply in such proceedings is unsurprising.
This Court, however, has applied a presumption—first explicitly stated in Hans v. Louisiana, supra —that the Constitution was not intended to "rais[e] up" any proceedings against the States that were "anomalous and unheard of when the Constitution was adopted." Id., at 18. We therefore attribute great significance to the fact that States were not subject to private suits in administrative adjudications at the time of the founding or for many years thereafter. For instance, while the United States asserts that "state entities have long been subject to similar administrative
B
To decide whether the Hans presumption applies here, however, we must examine FMC adjudications to determine whether they are the type of proceedings from which the Framers would have thought the States possessed immunity when they agreed to enter the Union.
In another case asking whether an immunity present in the judicial context also applied to administrative adjudications, this Court considered whether ALJs share the same absolute immunity from suit as do Article III judges. See Butz v. Economou, 438 U.S. 478 (1978). Examining in that case the duties performed by an ALJ, this Court observed:
Beyond the similarities between the role of an ALJ and that of a trial judge, this Court also noted the numerous common features shared by administrative adjudications and judicial proceedings:
This Court therefore concluded in Butz that ALJs were "entitled to absolute immunity from damages liability for their judicial acts." Id., at 514.
Turning to FMC adjudications specifically, neither the Commission nor the United States disputes the Court of Appeals' characterization below that such a proceeding "walks, talks, and squawks very much like a lawsuit." 243 F. 3d, at 174. Nor do they deny that the similarities identified in Butz between administrative adjudications and trial court proceedings are present here. See 46 CFR § 502.142 (2001).
A review of the FMC's Rules of Practice and Procedure confirms that FMC administrative proceedings bear a remarkably strong resemblance to civil litigation in federal courts. For example, the FMC's Rules governing pleadings are quite similar to those found in the Federal Rules of Civil Procedure. A case is commenced by the filing of a complaint. See 46 CFR § 502.61 (2001); Fed. Rule Civ. Proc. 3. The defendant then must file an answer, generally within 20 days of the date of service of the complaint, see § 502.64(a); Rule 12(a)(1), and may also file a motion to dismiss, see § 502.227(b)(1); Rule 12(b). A defendant is also allowed to file counterclaims against the plaintiff. See § 502.64(d); Rule 13. If a defendant fails to respond to a complaint, default judgment may be entered on behalf of the plaintiff. See § 502.64(b); Rule 55. Intervention is also allowed. See § 502.72; Rule 24.
Not only are discovery procedures virtually indistinguishable, but the role of the ALJ, the impartial officer
The ALJ also fixes "the time and manner of filing briefs," § 502.221(a), which contain findings of fact as well as legal argument, see § 502.221(d)(1). After the submission of these briefs, the ALJ issues a decision that includes "a statement of findings and conclusions, as well as the reasons or basis there for, upon all the material issues presented on the record, and the appropriate rule, order, section, relief, or denial thereof." § 502.223. Such relief may include an order directing the payment of reparations to an aggrieved party. See 46 U. S. C. App. § 1710(g) (1994 ed., Supp. V); 46 CFR § 502.251 (2001). The ALJ's ruling subsequently becomes the final decision of the FMC unless a party, by filing exceptions, appeals to the Commission or the Commission decides to review the ALJ's decision "on its own initiative." § 502.227(a)(3). In cases where a complainant obtains reparations, an ALJ may also require the losing party to pay the prevailing party's attorney's fees. See 46 U. S. C. App. § 1710(g); 46 CFR § 502.254 (2001).
In short, the similarities between FMC proceedings and civil litigation are overwhelming. In fact, to the extent that situations arise in the course of FMC adjudications "which are not covered by a specific Commission rule," the FMC's own Rules of Practice and Procedure specifically provide that "the Federal Rules of Civil Procedure will be followed to the extent that they are consistent with sound administrative practice."
The preeminent purpose of state sovereign immunity is to accord States the dignity that is consistent with their status as sovereign entities. See In re Ayers, 123 U.S. 443, 505 (1887). "The founding generation thought it `neither becoming nor convenient that the several States of the Union, invested with that large residuum of sovereignty which had not been delegated to the United States, should be summoned as defendants to answer the complaints of private persons.' " Alden, 527 U. S., at 748 (quoting In re Ayers, supra, at 505).
Given both this interest in protecting States' dignity and the strong similarities between FMC proceedings and civil litigation, we hold that state sovereign immunity bars the FMC from adjudicating complaints filed by a private party against a nonconsenting State. Simply put, if the Framers thought it an impermissible affront to a State's dignity to be required to answer the complaints of private parties in federal courts, we cannot imagine that they would have found it acceptable to compel a State to do exactly the same thing before the administrative tribunal of an agency, such as the FMC. Cf. Alden, supra, at 749 ("Private suits against nonconsenting States . . . present `the indignity of subjecting a State to the coercive process of judicial tribunals at the instance of private parties,' regardless of the forum " (quoting In re Ayers, supra, at 505) (citations omitted; emphasis added)). The affront to a State's dignity does not lessen when an adjudication takes place in an administrative tribunal as opposed to an Article III court.
D
The United States suggests two reasons why we should distinguish FMC administrative adjudications from judicial proceedings for purposes of state sovereign immunity. Both of these arguments are unavailing.
1
The United States first contends that sovereign immunity should not apply to FMC adjudications because the Commission's orders are not self-executing. See Brief for United States 18-21. Whereas a court may enforce a judgment through the exercise of its contempt power, the FMC cannot enforce its own orders. Rather, the Commission's orders
The United States presents a valid distinction between the authority possessed by the FMC and that of a court. For purposes of this case, however, it is a distinction without a meaningful difference. To the extent that the United States highlights this fact in order to suggest that a party alleged to have violated the Shipping Act is not coerced to participate in FMC proceedings, it is mistaken. The relevant statutory scheme makes it quite clear that, absent sovereign immunity, States would effectively be required to defend themselves against private parties in front of the FMC.
A State seeking to contest the merits of a complaint filed against it by a private party must defend itself in front of the FMC or substantially compromise its ability to defend itself at all. For example, once the FMC issues a nonreparation order, and either the Attorney General or the injured private party seeks enforcement of that order in a federal district court,
Should a party choose to ignore an order issued by the FMC, the Commission may impose monetary penalties for each day of noncompliance. See 46 U. S. C. App. § 1712(a) (1994 ed., Supp. V). The Commission may then request that the Attorney General of the United States seek to recover the amount assessed by the Commission in federal district court, see § 1712(e) (1994 ed.), and a State's sovereign immunity would not extend to that action, as it is one brought by the United States. Furthermore, once the FMC issues an order assessing a civil penalty, a sanctioned party may not later contest the merits of that order in an enforcement action brought by the Attorney General in federal district court. See ibid. (limiting review to whether the assessment of the civil penalty was "regularly made and duly issued"); United States v. Interlink Systems, Inc., 984 F.2d 79, 83 (CA2 1993) (holding that review of whether an order was "regularly made and duly issued" does not include review of the merits of the FMC's order).
Thus, any party, including a State, charged in a complaint by a private party with violating the Shipping Act is faced with the following options: appear before the Commission in a bid to persuade the FMC of the strength of its position or stand defenseless once enforcement of the Commission's nonreparation order or assessment of civil penalties is sought in federal district court.
The United States and Justice Breyer maintain that any such coercion to participate in FMC proceedings is permissible because the States have consented to actions brought by the Federal Government. See Alden, 527 U. S., at 755-756 ("In ratifying the Constitution, the States consented to suits brought by . . . the Federal Government"). The Attorney General's decision to bring an enforcement action against a State after the conclusion of the Commission's proceedings, however, does not retroactively convert an FMC adjudication initiated and pursued by a private party into one initiated and pursued by the Federal Government. The prosecution of a complaint filed by a private party with the FMC is plainly not controlled by the United States, but rather is controlled by that private party; the only duty assumed by the FMC, and hence the United States, in conjunction with a private complaint is to assess its merits in an impartial manner. Indeed, the FMC does not even have the discretion to refuse to adjudicate complaints brought by private parties. See, e. g., 243 F. 3d, at 176 ("The FMC had no choice but to adjudicate this dispute"). As a result, the United States plainly does not "exercise . . . political responsibility" for such complaints, but instead has impermissibly effected "a broad delegation to private persons to sue nonconsenting States."
The United States next suggests that sovereign immunity should not apply to FMC proceedings because they do not present the same threat to the financial integrity of States as do private judicial suits. See Brief for United States 21. The Government highlights the fact that, in contrast to a nonreparation order, for which the Attorney General may seek enforcement at the request of the Commission, a reparation order may be enforced in a United States district court only in an action brought by the private party to whom the award was made. See 46 U. S. C. App. § 1713(d)(1). The United States then points out that a State's sovereign immunity would extend to such a suit brought by a private party. Brief for United States 21.
This argument, however, reflects a fundamental misunderstanding of the purposes of sovereign immunity. While state sovereign immunity serves the important function of shielding state treasuries and thus preserving "the States' ability to govern in accordance with the will of their citizens," Alden, supra, at 750-751, the doctrine's central purpose is to "accord the States the respect owed them as" joint sovereigns. See Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993); see Part III-C, supra. It is for this reason, for instance, that sovereign immunity applies regardless of whether a private plaintiff's suit is for monetary damages or some other type of relief. See Seminole Tribe, 517 U. S., at 58 ("[W]e have often made it clear that the relief sought by a plaintiff suing
Sovereign immunity does not merely constitute a defense to monetary liability or even to all types of liability. Rather, it provides an immunity from suit. The statutory scheme, as interpreted by the United States, is thus no more permissible than if Congress had allowed private parties to sue States in federal court for violations of the Shipping Act but precluded a court from awarding them any relief.
It is also worth noting that an FMC order that a State pay reparations to a private party may very well result in the withdrawal of funds from that State's treasury. A State subject to such an order at the conclusion of an FMC adjudicatory proceeding would either have to make the required payment to the injured private party or stand in violation of the Commission's order. If the State were willfully and knowingly to choose noncompliance, the Commission could assess a civil penalty of up to $25,000 a day against the State. See 46 U. S. C. App. § 1712(a) (1994 ed., Supp. V). And if the State then refused to pay that penalty, the Attorney General, at the request of the Commission, could seek to recover that amount in a federal district court; because that action would be one brought by the Federal Government, the State's sovereign immunity would not extend to it.
To be sure, the United States suggests that the FMC's statutory authority to impose civil penalties for violations of reparation orders is "doubtful." Reply Brief for United States 7. The relevant statutory provisions, however, appear on their face to confer such authority. For while reparation orders and nonreparation orders are distinguished in other parts of the statutory scheme, see, e. g., 46 U. S. C. App. §§ 1713(c) and (d) (1994 ed.), the provision addressing civil penalties makes no such distinction. See § 1712(a) (1994 ed., Supp. V) ("Whoever violates . . . a Commission order is liable to the United States for a civil penalty"). The United
IV
Two final arguments raised by the FMC and the United States remain to be addressed. Each is answered in part by reference to our decision in Seminole Tribe.
A
The FMC maintains that sovereign immunity should not bar the Commission from adjudicating Maritime Services' complaint because "[t]he constitutional necessity of uniformity in the regulation of maritime commerce limits the States' sovereignty with respect to the Federal Government's authority to regulate that commerce." Brief for Petitioner 29. This Court, however, has already held that the States' sovereign immunity extends to cases concerning maritime commerce. See, e. g., Ex parte New York, 256 U.S. 490 (1921). Moreover, Seminole Tribe precludes us from creating a new "maritime commerce" exception to state sovereign immunity. Although the Federal Government undoubtedly possesses an important interest in regulating maritime commerce, see U. S. Const., Art. I, § 8, cl. 3, we noted in Seminole Tribe that "the background principle of state sovereign immunity embodied in the Eleventh Amendment is not so ephemeral as to dissipate when the subject of the suit is an area . . . that is under the exclusive control of the Federal Government,"
B
Finally, the United States maintains that even if sovereign immunity were to bar the FMC from adjudicating a private
* * *
While some might complain that our system of dual sovereignty is not a model of administrative convenience, see, e. g., post, at 785-786 (Breyer, J., dissenting), that is not its purpose. Rather, "[t]he `constitutionally mandated balance of power' between the States and the Federal Government was adopted by the Framers to ensure the protection of `our fundamental liberties.' " Atascadero State Hospital v. Scanlon, 473 U.S. 234, 242 (1985) (quoting Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 572 (1985) (Powell, J., dissenting)). By guarding against encroachments by the Federal Government on fundamental aspects of state sovereignty, such as sovereign immunity, we strive to maintain the balance of power embodied in our Constitution and thus to "reduce the risk of tyranny and abuse from either front." Gregory v. Ashcroft, 501 U. S., at 458. Although the Framers likely did not envision the intrusion on state sovereignty at issue in today's case, we are nonetheless confident that it is contrary to their constitutional design, and therefore affirm the judgment of the Court of Appeals.
It is so ordered.
Justice Breyer has explained why the Court's recent sovereign immunity jurisprudence does not support today's decision. I join his opinion without reservation, but add these words to emphasize the weakness of the two predicates for the majority's holding. Those predicates are, first, the Court's recent decision in Alden v. Maine, 527 U.S. 706 (1999), and second, the "preeminent" interest in according States the "dignity" that is their due. Ante, at 760.
Justice Souter has already demonstrated that Alden' s creative "conception of state sovereign immunity . . . is true neither to history nor to the structure of the Constitution." 527 U. S., at 814 (dissenting opinion). And I have previously explained that the "dignity" rationale is "`embarrassingly insufficient,' " Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 97 (1996) (dissenting opinion; citation omitted), in part because "Chief Justice Marshall early on laid to rest the view that the purpose of the Eleventh Amendment was to protect a State's dignity," id., at 96-97 (citing Cohens v. Virginia, 6 Wheat. 264, 406-407 (1821)).
This latter point is reinforced by the legislative history of the Eleventh Amendment. It is familiar learning that the Amendment was a response to this Court's decision in Chisholm v. Georgia, 2 Dall. 419 (1793). Less recognized, however, is that Chisholm necessarily decided two jurisdictional issues: that the Court had personal jurisdiction over the state defendant, and that it had subject-matter jurisdiction over the case.
This legislative history suggests that the Eleventh Amendment is best understood as having overruled Chisholm `s subject-matter jurisdiction holding, thereby restricting the federal courts' diversity jurisdiction. However, the Amendment left intact Chisholm `s personal jurisdiction holding: that the Constitution does not immunize States from a federal court's process. If the paramount concern of the Eleventh Amendment's framers had been protecting the so-called "dignity" interest of the States, surely Congress would have endorsed the first proposed amendment
The reasons why the majority in Chisholm concluded that the "dignity" interests underlying the sovereign immunity of English Monarchs had not been inherited by the original 13 States remain valid today. See, e. g., Seminole Tribe of Fla., 517 U. S., at 95-97 (Stevens, J., dissenting). By extending the untethered "dignity" rationale to the context of routine federal administrative proceedings, today's decision is even more anachronistic than Alden.
Justice Breyer, with whom Justice Stevens, Justice Souter, and Justice Ginsburg join, dissenting.
The Court holds that a private person cannot bring a complaint against a State to a federal administrative agency where the agency (1) will use an internal adjudicative process to decide if the complaint is well founded, and (2) if so, proceed to court to enforce the law. Where does the Constitution contain the principle of law that the Court enunciates? I cannot find the answer to this question in any text, in any tradition, or in any relevant purpose. In saying this, I do not simply reiterate the dissenting views set forth in many of the Court's recent sovereign immunity decisions. See, e. g., Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000); Alden v. Maine, 527 U.S. 706 (1999); College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., 527 U.S. 666 (1999); Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996). For even were I to believe that those decisions properly stated the law—which I do not—I still could not accept the Court's conclusion here.
At the outset one must understand the constitutional nature of the legal proceeding before us. The legal body conducting the proceeding, the Federal Maritime Commission, is an "independent" federal agency. Constitutionally speaking, an "independent" agency belongs neither to the Legislative Branch nor to the Judicial Branch of Government. Although Members of this Court have referred to agencies as a "fourth branch" of Government, FTC v. Ruberoid Co., 343 U.S. 470, 487 (1952) (Jackson, J., dissenting), the agencies, even "independent" agencies, are more appropriately considered to be part of the Executive Branch. See Freytag v. Commissioner, 501 U.S. 868, 910 (1991) (Scalia, J., concurring in part and concurring in judgment). The President appoints their chief administrators, typically a Chairman and Commissioners, subject to confirmation by the Senate. Cf. Bowsher v. Synar, 478 U.S. 714, 723 (1986). The agencies derive their legal powers from congressionally enacted statutes. And the agencies enforce those statutes, i. e., they "execute" them, in part by making rules or by adjudicating matters in dispute. Cf. Panama Refining Co. v. Ryan, 293 U.S. 388, 428-429 (1935).
The Court long ago laid to rest any constitutional doubts about whether the Constitution permitted Congress to delegate rulemaking and adjudicative powers to agencies. E. g., ICC v. Cincinnati, N. O. & T. P. R. Co., 167 U.S. 479, 494-495 (1897) (permitting rulemaking); Crowell v. Benson, 285 U.S. 22, 46 (1932) (permitting adjudication); Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833, 852 (1986) (same). That, in part, is because the Court established certain safeguards surrounding the exercise of these powers. See, e. g., A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935) (nondelegation doctrine); Crowell, supra (requiring judicial review). And the Court denied that those activities as safeguarded, however much they might resemble the activities of a legislature or court, fell within the
This constitutional understanding explains why both commentators and courts have often attached the prefix "quasi" to descriptions of an agency's rulemaking or adjudicative functions. E. g., Humphrey's Executor v. United States, 295 U.S. 602, 629 (1935); 3 C. Koch, Administrative Law and Practice § 12.13 (2d ed. 1997); Shapiro, The Choice of Rulemaking or Adjudication in the Development of Administrative Policy, 78 Harv. L. Rev. 921, 954-958 (1965); Friendly, The Federal Administrative Agencies: The Need for Better Definition of Standards, 75 Harv. L. Rev. 863, 869-870 (1962). The terms "quasi legislative" and "quasi adjudicative" indicate that the agency uses legislative like or court like procedures but that it is not, constitutionally speaking, either a legislature or a court. See Whitman v. American Trucking Assns., Inc., 531 U.S. 457, 472-473 (2001); Freytag, supra, at 910 (Scalia, J., concurring in part and concurring in judgment).
The case before us presents a fairly typical example of a federal administrative agency's use of agency adjudication. Congress has enacted a statute, the Shipping Act of 1984 (Act or Shipping Act), 46 U. S. C. App. § 1701 et seq. (1994 ed. and Supp. V), which, among other things, forbids marine terminal operators to discriminate against terminal users. § 1709(d)(4) (1994 ed., Supp. V). The Act grants the Federal Maritime Commission the authority to administer the Act. The law grants the Commission the authority to enforce the Act in a variety of ways, for example, by making rules and
Regardless, the Federal Maritime Commission has decided to evaluate complaints through an adjudicative process. That process involves assignment to an administrative law judge, 46 CFR § 502.146(a) (2001), a hearing, an initial decision, §§ 502.147, 502.223, Commission review, and a final Commission decision, § 502.227, followed by federal appellate court review, 28 U. S. C. § 2342(3)(B). The initial hearing, like a typical court hearing, involves a neutral decisionmaker, an opportunity to present a case or defense through oral or documentary evidence, a right to cross-examination, and a written record that typically constitutes the basis for decision. 46 CFR § 502.154 (2001). But unlike a typical court proceeding, the agency process also may involve considerable hearsay, resolution of factual disputes through the use of "official notice," § 502.156; see also 5 U. S. C. § 556, and final decisionmaking by a Commission that remains free to disregard the initial decision and decide the matter on its own—indeed through the application of substantive as well as procedural rules, that it, the Commission, itself has created. See 46 CFR §§ 502.226, 502.227, 502.230 (2001); see also 46 U. S. C. App. § 1716 (1994 ed.) (rulemaking authority); 46 CFR §§ 502.51-502.56 (2001) (same).
The outcome of this process is often a Commission order, say, an order that tells a party to cease and desist from certain activity or that tells one party to pay money damages (called "reparations") to another. The Commission cannot
The upshot is that this case involves a typical Executive Branch agency exercising typical Executive Branch powers seeking to determine whether a particular person has violated federal law. Cf. 2 K. Davis & R. Pierce, Administrative Law Treatise 37-38 (1994) (describing typical agency characteristics); cf. also SEC v. Chenery Corp., 332 U.S. 194 (1947). The particular person in this instance is a state entity, the South Carolina State Ports Authority, and the agency is acting in response to the request of a private individual. But at first blush it is difficult to see why these special circumstances matter. After all, the Constitution created a Federal Government empowered to enact laws that would bind the States and it empowered that Federal Government to enforce those laws against the States. See Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, 160 (1920). It also left private individuals perfectly free to complain to the Federal Government about unlawful state activity, and it left the Federal Government free to take subsequent legal action. Where then can the Court find its constitutional principle—the principle that the Constitution forbids an Executive Branch agency to determine through ordinary adjudicative processes whether such a private complaint is
II
The Court's principle lacks any firm anchor in the Constitution's text. The Eleventh Amendment cannot help. It says:
Federal administrative agencies do not exercise the "[j]udicial power of the United States." Compare Crowell v. Benson, 285 U.S. 22 (1932) (explaining why ordinary agency adjudication, with safeguards, is not an exercise of Article III power), with Freytag v. Commissioner, 501 U. S., at 890-891 (Tax Court, a special Article I court, exercises Article III power), and Williams v. United States, 289 U.S. 553, 565-566 (1933) (same as to Court of Claims). Of course, this Court has read the words "Citizens of another State" as if they also said "citizen of the same State." Hans v. Louisiana, 134 U.S. 1 (1890). But it has never said that the words "[j]udicial power of the United States" mean "the executive power of the United States." Nor should it.
The Tenth Amendment cannot help. It says:
The Constitution has "delegated to the United States" the power here in question, the power "[t]o regulate Commerce with foreign Nations, and among the several States." U. S. Const., Art. I, § 8, cl. 3; see California v. United States, 320 U.S. 577, 586 (1944). The Court finds within this delegation a hidden reservation, a reservation that, due to sovereign immunity, embodies the legal principle the Court enunciates.
Indeed, the Court refers for textual support only to an earlier case, namely, Alden v. Maine, 527 U.S. 706 (1999) (holding that sovereign immunity prohibits a private citizen from suing a State in state court), and, through Alden, to the texts that Alden mentioned. These textual references include: (1) what Alexander Hamilton described as a constitutional "postulate," namely, that the States retain their immunity from "suits, without their consent," unless there has been a "surrender" of that immunity "in the plan of the convention," id., at 730 (internal quotation marks omitted); (2) what the Alden majority called "the system of federalism established by the Constitution," ibid.; and (3) what the Alden majority called "the constitutional design," id., at 731. See also id., at 760-762 (Souter, J., dissenting) (noting that the Court's opinion nowhere relied on constitutional text).
Considered purely as constitutional text, these words— "constitutional design," "system of federalism," and "plan of the convention"—suffer several defects. Their language is highly abstract, making them difficult to apply. They invite differing interpretations at least as much as do the Constitution's own broad liberty-protecting phrases, such as "due process of law" or the word "liberty" itself. And compared to these latter phrases, they suffer the additional disadvantage that they do not actually appear anywhere in the Constitution. Cf. generally Harmelin v. Michigan, 501 U.S. 957, 985-986 (1991). Regardless, unless supported by considerations of history, of constitutional purpose, or of related consequence, those abstract phrases cannot support today's result.
III
Conceding that its conception of sovereign immunity is ungrounded in the Constitution's text, see ante, at 751-753, 767-768, n. 18, the Court attempts to support its holding with history. But this effort is similarly destined to fail, because
In Alden the Court said that feudal law had created an 18th-century legal norm to the effect that "`no lord could be sued by a vassal in his own court, but each petty lord was subject to suit in the courts of a higher lord.' " 527 U. S., at 741. It added that the Framers' silence about the matter had woven that feudal "norm" into the "constitutional design," i. e., had made it part of our "system of federalism" unchanged by the "`plan of the convention.' " Id., at 714-717, 730, 740-743. And that norm, said the Alden Court, by analogy forbids a citizen ("vassal") to sue a State ("lord") in the "lord's" own courts. Here that same norm argues against immunity, for the forum at issue is federal—belonging by analogy to the "higher lord." And total 18th-century silence about state immunity in Article I proceedings would argue against, not in favor of, immunity.
In any event, the 18th century was not totally silent. The Framers enunciated in the "plan of the convention" the principle that the Federal Government may sue a State without its consent. See, e. g., West Virginia v. United States, 479 U.S. 305, 311 (1987). They also described in the First Amendment the right of a citizen to petition the Federal Government for a redress of grievances. See also United States v. Cruikshank, 92 U.S. 542, 552-553 (1876); cf. generally Mark, The Vestigial Constitution: The History and Significance of the Right to Petition, 66 Ford. L. Rev. 2153, 2227 (1998). The first principle applies here because only the Federal Government, not the private party, can—in light of this Court's recent sovereign immunity jurisprudence, see Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996)—bring the ultimate court action necessary legally to force a State to comply with the relevant federal law. See id. , at 71, n. 14. The second principle applies here because
Of course these two principles apply only through analogy. (The Court's decision also relies on analogy—one that jumps the separation-of-powers boundary that the Constitution establishes.) Yet the analogy seems apt. A private citizen, believing that a State has violated federal law, seeks a determination by an Executive Branch agency that he is right; the agency will make that determination through use of its own adjudicatory agency processes; and, if the State fails to comply, the Federal Government may bring an action against the State in federal court to enforce the federal law.
Twentieth-century legal history reinforces the appropriateness of this description. The growth of the administrative state has led this Court to determine that administrative agencies are not Article III courts, see Crowell v. Benson, 285 U. S., at 49-53, that they have broad discretion to proceed either through agency adjudication or through rulemaking, SEC v. Chenery Corp., 332 U. S., at 203 ("[T]he choice made between proceeding by general rule or by individual, ad hoc litigation is one that lies primarily in the informed discretion of the administrative agency"), and that they may bring administrative enforcement proceedings against States. At a minimum these historically established legal principles argue strongly against any effort to analogize the present proceedings to a lawsuit brought by a private individual against a State in a state court or to an Eleventh Amendment type lawsuit brought by a private individual against a State in a federal court.
This is not to say that the analogy (with a citizen petitioning for federal intervention) is, historically speaking, a perfect one. As the Court points out, the Framers may not have "anticipated the vast growth of the administrative state," and the history of their debates "does not provide direct guidance." Ante, at 755. But the Court is wrong to
IV
The Court argues that the basic purpose of "sovereign immunity" doctrine—namely, preservation of a State's "dignity"—requires application of that doctrine here. It rests this argument upon (1) its efforts to analogize agency proceedings to court proceedings, and (2) its claim that the agency proceedings constitute a form of "compulsion" exercised by a private individual against the State. As I have just explained, I believe its efforts to analogize agencies to courts are, constitutionally speaking, too frail to support its conclusion. Neither can its claim of "compulsion" provide the necessary support.
Viewed from a purely legal perspective, the "compulsion" claim is far too weak. That is because the private individual lacks the legal authority to compel the State to comply with the law. For as I have noted, in light of the Court's recent sovereign immunity decisions, if an individual does bring suit to enforce the Commission's order, see 46 U. S. C. App. § 1713 (1994 ed.), the State would arguably be free to claim sovereign immunity. See Seminole Tribe of Fla., supra. Only the Federal Government, acting through the Commission or the Attorney General, has the authority to compel the State to act.
In a typical instance, the private individual will file a complaint, the agency will adjudicate the complaint, and the
In Alden this Court distinguished for sovereign immunity purposes between (a) a lawsuit brought by the Federal Government and (b) a lawsuit brought by a private person. It held that principles of "sovereign immunity" barred suit in the latter instance but not the former, because the former— a suit by the Federal Government—"require[s] the exercise of political responsibility for each suit prosecuted against a State." 527 U. S., at 756. That same "exercise of political responsibility" must take place here in every instance prior to the issuance of an order that, from a legal perspective, will compel the State to obey. To repeat: Without a court proceeding the private individual cannot legally force the State to act, to pay, or to desist; only the Federal Government may institute a court proceeding; and, in deciding
Viewed from a practical perspective, the Court's "compulsion" claim proves far too much. Certainly, a private citizen's decision to file a complaint with the Commission can produce practical pressures upon the State to respond and eventually to comply with a Commission decision. By appearing before the Commission, the State will be able to obtain full judicial review of an adverse agency decision in a court of appeals (where it will face in opposition the Commission itself, not the private party). By appearing, the State will avoid any potential Commission-assessed monetary penalty. And by complying, it will avoid the adverse political, practical, and symbolic implications of being labeled a federal "lawbreaker."
Practical pressures such as these, however, cannot sufficiently "affront" a State's "dignity" as to warrant constitutional "sovereign immunity" protections, for it is easy to imagine comparable instances of clearly lawful private citizen complaints to Government that place a State under far greater practical pressures to comply. No one doubts, for example, that a private citizen can complain to Congress, which may threaten (should the State fail to respond) to enact a new law that the State opposes. Nor does anyone deny that a private citizen, in complaining to a federal agency, may seek a rulemaking proceeding, which may lead the agency (should the State fail to respond) to enact a new agency rule that the State opposes. A private citizen may ask an agency formally to declare that a State is not in compliance with a statute or federal rule, even though from that formal declaration may flow a host of legal consequences adverse to a State's interests. See, e. g., 42 U. S. C. § 300g-3 (Environmental Protection Agency may declare that a State is in noncompliance with federal water quality regulations). And one can easily imagine a legal scheme in which a private individual files a complaint like the one before us, but asks
Viewed solely in terms of practical pressures, the pressures upon a State to respond before Congress or the agency, to answer the private citizen's accusations, to oppose his requests for legally adverse agency or congressional action, would seem no less powerful than those at issue here. Once one avoids the temptation to think (mistakenly) of an agency as a court, it is difficult to see why the practical pressures at issue here would "affront" a State's "dignity" any more than those just mentioned. And if the latter create no constitutional "dignity" problem, why should the former? The Court's answer—that "[s]overeign immunity concerns are not implicated" unless the "Federal Government attempts to coerce States into answering the complaints of private parties in an adjudicative proceeding," ante, at 764, n. 16—simply begs the question of when and why States should be entitled to special constitutional protection.
The Court's more direct response lies in its claim that the practical pressures here are special, arising from a set of statutes that deprive a nonresponding State of any meaningful judicial review of the agency's determinations. See ante, at 760-764. The Court does not explain just what makes this kind of pressure constitutionally special. But in any event, the Court's response is inadequate. The statutes clearly provide the State with full judicial review of the initial agency decision should the State choose to seek that review. 28 U. S. C. § 2342(3)(B)(iv). That review cannot "affront" the State's "dignity, for it takes place in a court proceeding in which the Commission, not the private party, will oppose the State. § 2344.
Even were that not so, Congress could easily resolve the resulting problem by making clear that the relevant statutes authorize full judicial review in an enforcement action brought against a State. For that matter, one might interpret
V
The Court cannot justify today's decision in terms of its practical consequences. 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 citizen's complaint has merit. The natural result is less agency flexibility, a larger federal bureaucracy, less fair procedure, and potentially less effective law enforcement. See Pension Benefit Guaranty Corporation v. LTV Corp., 496 U.S. 633, 654-656 (1990); cf. also Shapiro, 78 Harv. L. Rev., at 921 ("One of the most distinctive aspects of the administrative process is the flexibility it affords in the selection of methods for policy formulation"). And at least one of these consequences, the forced growth of unnecessary federal bureaucracy, undermines the very constitutional objectives
These consequences are not purely theoretical. The Court's decision may undermine enforcement against state employers of many laws designed to protect worker health and safety. See, e. g., 42 U. S. C. § 7622 (1994 ed.) (Clean Air Act); 33 U. S. C. § 1367 (Clean Water Act); 15 U. S. C. § 2622 (Toxic Substances Control Act); 42 U. S. C. § 6971 (1994 ed.) (Solid Waste Disposal Act); see also Rhode Island Dept. of Environmental Management v. United States, 286 F.3d 27, 36-40 (CA1 2002). And it may inhibit the development of federal fair, rapid, and efficient informal nonjudicial responses to complaints, for example, of improper medical care (involving state hospitals). Cf. generally Macchiaroli, Medical Malpractice Screening Panels: Proposed Model Legislation to Cure Judicial Ills, 58 Geo. Wash. L. Rev. 181 (1990).
* * *
The Court's decision threatens to deny the Executive and Legislative Branches of Government the structural flexibility that the Constitution permits and which modern government demands. The Court derives from the abstract notion of state "dignity" a structural principle that limits the powers of both Congress and the President. Its reasoning rests almost exclusively upon the use of a formal analogy, which, as I have said, jumps ordinary separation-of-powers bounds. It places "great significance" upon the 18th-century absence of 20th-century administrative proceedings. See ante, at 755. And its conclusion draws little support from considerations of constitutional purpose or related consequence. In its readiness to rest a structural limitation on so little evidence and in its willingness to interpret that limitation so
This understanding, underlying constitutional interpretation since the New Deal, reflects the Constitution's demands for structural flexibility sufficient to adapt substantive laws and institutions to rapidly changing social, economic, and technological conditions. It reflects the comparative inability of the Judiciary to understand either those conditions or the need for new laws and new administrative forms they may create. It reflects the Framers' own aspiration to write a document that would "constitute" a democratic, libertyprotecting form of government that would endure through centuries of change. This understanding led the New Deal Court to reject overly restrictive formalistic interpretations of the Constitution's structural provisions, thereby permitting Congress to enact social and economic legislation that circumstances had led the public to demand. And it led that Court to find in the Constitution authorization for new forms of administration, including independent administrative agencies, with the legal authority flexibly to implement, i. e., to "execute," through adjudication, through rulemaking, and in other ways, the legislation that Congress subsequently enacted. See, e. g., Yakus v. United States, 321 U.S. 414 (1944); Crowell v. Benson, supra, at 45-47.
Where I believe the Court has departed from this basic understanding I have consistently dissented. See, e. g., Kimel v. Florida Bd. of Regents, 528 U. S., at 92 (Stevens, J., dissenting in part and concurring in part); Alden v. Maine, 527 U. S., at 760 (Souter, J., dissenting); College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd.,
Today's decision reaffirms the need for continued dissent— unless the consequences of the Court's approach prove anodyne, as I hope, rather than randomly destructive, as I fear.
FootNotes
Briefs of amici curiae urging affirmance were filed for the State of Maryland et al. by J. Joseph Curran, Jr., Attorney General of Maryland, and Andrew H. Baida, Solicitor General, and by the Attorneys General for their respective jurisdictions as follows: Bill Pryor of Alabama, Bruce M. Botelho of Alaska, Bill Lockyer of California, Ken Salazar of Colorado, Richard Blumenthal of Connecticut, M. Jane Brady of Delaware, Robert A. Butterworth of Florida, Robert H. Kono of Guam, Thurbert E. Baker of Georgia, Earl I. Anzai of Hawaii, James E. Ryan of Illinois, Steve Carter of Indiana, Thomas J. Miller of Iowa, Carla J. Stovall of Kansas, Richard P. Ieyoub of Louisiana, G. Steven Rowe of Maine, Mike Moore of Mississippi, Jeremiah W. (Jay) Nixon of Missouri, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, John J. Farmer, Jr., of New Jersey, Roy Cooper of North Carolina, Wayne Stenehjem of North Dakota, Betty D. Montgomery of Ohio, W. A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, D. Michael Fisher of Pennsylvania, Sheldon Whitehouse of Rhode Island, Charles M. Condon of South Carolina, Mark Barnett of South Dakota, Paul G. Summers of Tennessee, John Cornyn of Texas, Mark L. Shurtleff of Utah, William H. Sorrell of Vermont, Randolph A. Beales of Virginia, Christine O. Gregoire of Washington, Darrell V. McGraw of West Virginia, and Hoke MacMillan of Wyoming; for the Charleston Naval Complex Redevelopment Authority by C. Jonathan Benner; and for the National Governors Association et al. by Richard Ruda and James I. Crowley.
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