FEDERAL MARITIME COMMISSION v. SOUTH CAROLINA STATE PORTS AUTHORITY et al.

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Syllabus
FEDERAL MARITIME COMMISSION v. SOUTH
CAROLINA STATE PORTS AUTHORITY et al.
certiorari to the united states court of appeals for
the fourth circuit
No. 01–46. Argued February 25, 2002—Decided May 28, 2002
South Carolina Maritime Services, Inc. (Maritime Services), filed a com-
plaint with petitioner Federal Maritime Commission (FMC), contending
that respondent South Carolina State Ports Authority (SCSPA) violated
the Shipping Act of 1984 when it denied Maritime Services permission
to berth a cruise ship at the SCSPA’s port facilities in Charleston, South
Carolina; and praying that the FMC, inter alia, direct the SCSPA to
pay reparations to Maritime Services, order the SCSPA to cease and
desist from violating the Shipping Act, and ask the United States Dis-
trict Court for the District of South Carolina to enjoin the SCSPA from
refusing berthing space and passenger services to Maritime Services.
The complaint was referred to an Administrative Law Judge (ALJ),
who found that the SCSPA, as an arm of the State of South Carolina,
was entitled to sovereign immunity and thus dismissed the complaint.
Reversing on its own motion, the FMC concluded that state sovereign
immunity covers proceedings before judicial tribunals, not Executive
Branch agencies. The Fourth Circuit reversed.
Held: State sovereign immunity bars the FMC from adjudicating a pri-
vate party’s complaint against a nonconsenting State. Pp. 751–769.
(a) Dual sovereignty is a defining feature of the Nation’s constitu-
tional blueprint, and an integral component of the sovereignty retained
by the States when they entered the Union is their immunity from pri-
vate suits. While States, in ratifying the Constitution, consented to
suits brought by sister States or the Federal Government, they main-
tained their traditional immunity from suits brought by private parties.
Although the Eleventh Amendment provides that the “judicial Power
of the United States” does not “extend to any suit, in law or equity,”
brought by citizens of one State against another State, U. S. Const.,
Amdt. 11, that provision does not define the scope of the States’ sover-
eign immunity; it is instead only one particular exemplification of that
immunity. As a result, this Court’s assumption that the FMC does not
exercise the judicial power of the United States in adjudicating Shipping
Act complaints filed by private parties does not end the inquiry whether
sovereign immunity applies to such adjudications. Pp. 751–754.

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(b) Formalized administrative adjudications were all but unheard of
in the late 18th and early 19th centuries, so it is unsurprising that
there is no specific evidence indicating whether the Framers believed
that sovereign immunity would apply to such proceedings. However,
because of the presumption 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,” Hans v. Louisiana,
134 U. S. 1, 18, this Court attributes great significance to the fact
that States were not subject to private suits in administrative adju-
dications at the time of the founding or for many years thereafter.
Pp. 754–756.
(c) To decide whether the Hans presumption applies here, this Court
must determine whether FMC adjudications are the type of proceedings
from which the Framers would have thought the States possessed im-
munity when they agreed to enter the Union. This Court previously
has noted that ALJs and trial judges play similar roles in adjudicative
proceedings and that administrative adjudications and judicial proceed-
ings generally share numerous common features. Butz v. Economou,
438 U. S. 478, 513, 514. Turning to FMC adjudications specifically,
neither the FMC nor the United States disputes the Fourth Circuit’s
characterization that such a proceeding walks, talks, and squawks like
a lawsuit or denies that the similarities identified in Butz between ad-
ministrative adjudications and trial court proceedings are present here.
FMC administrative proceedings bear a remarkably strong resemblance
to federal civil litigation. The rules governing pleadings in both types
of proceedings are quite similar; discovery in FMC adjudications largely
mirrors that in federal civil litigation; the role of the ALJ is similar to
that of an Article III judge; and, in situations not covered by an FMC
rule, the FMC’s own Rules of Practice and Procedure provide that Fed-
eral Rules of Civil Procedure are to be used if consistent with sound
administrative practice. Pp. 756–759.
(d) State sovereign immunity’s preeminent purpose—to accord States
the dignity that is consistent with their status as sovereign entities—
and the overwhelming similarities between FMC adjudicative proceed-
ings and civil litigation lead to the conclusion that the FMC is barred
from adjudicating a private party’s complaint against a nonconsenting
State. If the Framers thought it an impermissible affront to a State’s
dignity to be required to answer private parties’ complaints in federal
court, they would not have found it acceptable to compel a State to do
the same thing before a federal administrative tribunal. And it would
be quite strange were Congress prohibited from exercising its Article
I powers to abrogate state sovereign immunity in Article III judicial
proceedings, but permitted to use those same powers to create court-

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like administrative tribunals where sovereign immunity would not
apply. Pp. 760–761.
(e) Two arguments made by the United States to support its claim
that sovereign immunity does not apply to FMC proceedings are un-
availing. That the FMC’s orders are not self-executing does not mean
that a State is not coerced into participating in an FMC adjudicative
proceeding. A State charged in a private party’s complaint with vio-
lating the Shipping Act has the option of appearing before the FMC
in a bid to persuade that body of the strength of its position or substan-
tially compromising its ability to defend itself because a sanctioned
party cannot litigate the merits of its position later in a federal-court
action brought by the Attorney General to enforce an FMC nonrepara-
tion order or civil penalty assessment. This choice clearly serves to
coerce States to participate in FMC adjudications. And the argument
that sovereign immunity should not apply because FMC proceedings do
not present the same threat to the States’ financial integrity as do pri-
vate judicial suits reflects a fundamental misunderstanding of sovereign
immunity’s primary purpose, which is not to shield state treasuries but
to accord States the respect owed them as joint sovereigns. In any
event, an FMC reparation order may very well result in the withdrawal
of funds from a State’s treasury because the FMC might be able to
assess a civil penalty against a State that refused to obey a reparation
order, and if the Attorney General, at the FMC’s request, then sought
to recover the penalty in federal court, the State’s sovereign immunity
would not extend to that suit brought by the Federal Government.
Pp. 761–767.
(f) The Court rejects the FMC’s argument that it should not be
barred from adjudicating Maritime Services’ complaint because the con-
stitutional necessity of uniformity in maritime commerce regulation lim-
its the States’ sovereignty with respect to the Federal Government’s
authority to regulate that commerce. This Court has already held that
state sovereign immunity extends to maritime commerce cases, and
Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 72, precludes the Court
from creating a new maritime commerce exception to state sovereign
immunity. Also rejected is the United States’ argument that, even if
the FMC is barred from issuing a reparation order, it should not be
precluded from considering a private party’s request for nonmonetary
relief. The type of relief sought by a plaintiff suing a State in court
is irrelevant to the question whether a suit is barred by the Eleventh
Amendment, id., at 58, and the Court sees no reason why that principle
should not also apply in the realm of administrative adjudications.
Pp. 767–769.
243 F. 3d 165, affirmed.

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Thomas, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and O’Connor, Scalia, and Kennedy, JJ., joined. Stevens, J.,
filed a dissenting opinion, post, p. 770. Breyer, J., filed a dissenting
opinion, in which Stevens, Souter, and Ginsburg, JJ., joined, post,
p. 772.
Phillip Christopher Hughey argued the cause for peti-
tioner. With him on the briefs were David R. Miles, Amy
Wright Larson, and Carol J. Neustadt.
Deputy Solicitor General Clement argued the cause for
the United States, respondent under this Court’s Rule 12.6,
urging reversal. On the briefs were Solicitor General
Olson, Assistant Attorney General McCallum, Deputy
Solicitor General Wallace, Malcolm L. Stewart, Mark B.
Stern, and Alisa B. Klein. Warren L. Dean, Jr., argued the
cause for respondent South Carolina State Ports Authority.
With him on the brief were David Seidman, Jordan B.
Cherrick, Elizabeth Herlong Campbell, and Susan Taylor
Wall.*
*Briefs of amici curiae urging reversal were filed for the American
Federation of Labor and Congress of Industrial Organizations by Jona-
than P. Hiatt, Laurence Gold, and David L. Shapiro; for the National
Association of Waterfront Employers by Charles T. Carroll, Jr., and Carl
Larsen Taylor; for the United States Maritime Alliance Limited et al. by
C. Peter Lambos and Donato Caruso; and for Senator Edward M. Kennedy
et al. by Lloyd N. Cutler, A. Stephen Hut, Jr., and Christopher J. Meade.
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 Car-
ter of Indiana, Thomas J. Miller of Iowa, Carla J. Stovall of Kansas, Rich-
ard P. Ieyoub of Louisiana, G. Steven Rowe of Maine, Mike Moore of Mis-
sissippi, Jeremiah W. (Jay) Nixon of Missouri, Don Stenberg of Nebraska,
Frankie Sue Del Papa of Nevada, John J. Farmer, Jr., of New Jersey, Roy

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Opinion of the Court
Justice Thomas delivered the opinion of the Court.
This case presents the question whether state sovereign
immunity precludes petitioner Federal Maritime Commis-
sion (FMC or Commission) from adjudicating a private par-
ty’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 per-
mitted to participate in gambling activities while on board.
The SCSPA repeatedly denied Maritime Services’ re-
quests, 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 Serv-
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. Mc-
Graw of West Virginia, and Hoke MacMillan of Wyoming; for the Charles-
ton 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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ices filed a complaint with the FMC,1 contending that the
SCSPA’s refusal to provide berthing space to the M/V Tropic
Sea violated the Shipping Act. Maritime Services alleged
in its complaint that the SCSPA had implemented its anti-
gambling policy in a discriminatory fashion by providing
berthing space in Charleston to two Carnival Cruise Lines
vessels even though Carnival offered gambling activities on
these ships. Maritime Services therefore complained that
the SCSPA had unduly and unreasonably preferred Carnival
over Maritime Services in violation of 46 U. S. C. App.
§ 1709(d)(4) (1994 ed., Supp. V),2 and unreasonably refused
to deal or negotiate with Maritime Services in violation
of § 1709(b)(10).3 App. 14–15. It further alleged that the
SCSPA’s unlawful actions had inflicted upon Maritime Serv-
ices a “loss of profits, loss of earnings, loss of sales, and loss
of business opportunities.” Id., at 15.
To remedy its injuries, Maritime Services prayed that the
FMC: (1) seek a temporary restraining order and prelimi-
nary injunction in the United States District Court for the
District of South Carolina “enjoining [the SCSPA] from uti-
lizing its discriminatory practice to refuse to provide berth-
ing space and passenger services to Maritime Services;” 4
1 See 46 U. S. C. App. § 1710(a) (1994 ed.) (“Any person may file with the
Commission a sworn complaint alleging a violation of this chapter . . . and
may seek reparation for any injury caused to the complainant by that
violation”).
2 Section 1709(d)(4) provides that “[n]o marine terminal operator may
give any undue or unreasonable preference or advantage or impose any
undue or unreasonable prejudice or disadvantage with respect to any
person.”
3 Section 1709(b)(10) prohibits a common carrier from “unreasonably
refus[ing] to deal or negotiate.”
4 See § 1710(h)(1) (1994 ed.) (“In connection with any investigation con-
ducted under this section, the Commission may bring suit in a district
court of the United States to enjoin conduct in violation of this chapter.
Upon a showing that standards for granting injunctive relief by courts of
equity are met and after notice to the defendant, the court may grant a
temporary restraining order or preliminary injunction for a period not to

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(2) direct the SCSPA to pay reparations to Maritime Serv-
ices as well as interest and reasonable attorneys’ fees; 5
(3) issue an order commanding, among other things, the
SCSPA to cease and desist from violating the Shipping Act;
and (4) award Maritime Services “such other and further re-
lief as is just and proper.” Id., at 16.
Consistent with the FMC’s Rules of Practice and Pro-
cedure, 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 non-
discriminatory 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 Amend-
ment immunity” from Maritime Services’ suit. App. 41.
The SCSPA argued that “the Constitution prohibits Con-
gress 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 sover-
eign immunity from private suits . . . require[d] that [Mari-
time 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
exceed 10 days after the Commission has issued an order disposing of the
issues under investigation. Any such suit shall be brought in a district in
which the defendant resides or transacts business”).
5 See § 1710(g) (1994 ed., Supp. V) (“For any complaint filed within 3
years after the cause of action accrued, the Commission shall, upon peti-
tion of the complainant and after notice and hearing, direct payment of
reparations to the complainant for actual injury (which, for purposes of
this subsection, also includes the loss of interest at commercial rates com-
pounded from the date of injury) caused by a violation of this chapter plus
reasonable attorney’s fees”).

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state sovereign immunity, the ALJ reasoned that “[i]f federal
courts that are established under Article III of the Constitu-
tion must respect States’ 11th Amendment immunity and
Congress is powerless to override the States’ immunity
under Article I of the Constitution, it is irrational to argue
that an agency like the Commission, created under an Article
I statute, is free to disregard the 11th Amendment or its
related doctrine of State immunity from private suits.”
App. to Pet. for Cert. 59a (emphasis in original). The ALJ
noted, however, that his decision did not deprive the FMC
of its “authority to look into [Maritime Services’] allegations
of Shipping Act violations and enforce the Shipping Act.”
Id., at 60a. For example, the FMC could institute its own
formal investigatory proceeding, see 46 CFR § 502.282
(2001), or refer Maritime Services’ allegations to its Bureau
of Enforcement, App. to Pet. for Cert. 60a–61a.
While Maritime Services did not appeal the ALJ’s dis-
missal of its complaint, the FMC on its own motion decided
to review the ALJ’s ruling to consider whether state sover-
eign 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 adju-
dicates disputes between private parties and unconsenting
states would not have passed muster at the time of the Con-
stitution’s passage nor after the ratification of the Eleventh
Amendment,” the Court of Appeals reasoned that “[s]uch an

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adjudication is equally as invalid today, whether the forum
be a state court, a federal court, or a federal administrative
agency.” 243 F. 3d 165, 173 (2001). Reviewing the “precise
nature” of the procedures employed by the FMC for resolv-
ing private complaints, the Court of Appeals concluded that
the proceeding “walks, talks, and squawks very much like
a lawsuit” and that “[i]ts placement within the Executive
Branch cannot blind us to the fact that the proceeding is
truly an adjudication.” Id., at 174. The Court of Appeals
therefore held that because the SCSPA is an arm of the State
of South Carolina,6 sovereign immunity precluded the FMC
from adjudicating Maritime Services’ complaint, and re-
manded the case with instructions that it be dismissed.
Id., at 179.
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 con-
stitutional 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 Noa-
tak, 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
6 The SCSPA was created by the State of South Carolina “as an instru-
mentality of the State,” for, among other purposes, “develop[ing] and im-
prov[ing] the harbors or seaports of Charleston, Georgetown and Port
Royal for the handling of water-borne commerce from and to any part of
[South Carolina] and other states and foreign countries.” S. C. Code Ann.
§ 54–3–130 (1992). The United States Court of Appeals for the Fourth
Circuit has ruled that the SCSPA is protected by South Carolina’s sover-
eign immunity because it is an arm of the State, see, e. g., Ristow v. South
Carolina Ports Authority, 58 F. 3d 1051 (1995), and no party to this case
contests that determination.

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the States is their immunity from private suits. Reflecting
the widespread understanding at the time the Constitution
was drafted, Alexander Hamilton explained:
“It is inherent in the nature of sovereignty not to be
amenable to the suit of an individual without its consent.
This is the general sense and the general practice of
mankind; and the exemption, as one of the attributes of
sovereignty, is now enjoyed by the government of every
State of the Union. Unless, therefore, there is a surren-
der of this immunity in the plan of the convention, it will
remain with the States . . . .” Id., No. 81, at 487–488
(emphasis in original).
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 pri-
vate suits, thus firmly enshrining this principle in our con-
stitutional framework. “The leading advocates of the Con-
stitution assured the people in no uncertain terms that the
Constitution would not strip the States of sovereign immu-
nity.” 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 fed-
eral court. The “decision ‘fell upon the country with a pro-
found 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,

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or by Citizens or Subjects of any Foreign State.” We have
since acknowledged that the Chisholm decision was errone-
ous. See, e. g., Alden, 527 U. S., at 721–722.
Instead of explicitly memorializing the full breadth of the
sovereign immunity retained by the States when the Consti-
tution was ratified, Congress chose in the text of the Elev-
enth Amendment only to “address the specific provisions of
the Constitution that had raised concerns during the ratifi-
cation debates and formed the basis of the Chisholm deci-
sion.” 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 7 initially maintain that the Court
of Appeals erred because sovereign immunity only shields
States from exercises of “judicial power” and FMC adju-
dications are not judicial proceedings. As support for their
position, they point to the text of the Eleventh Amendment
and contend that “[t]he Amendment’s reference to ‘judicial
Power’ and to ‘any suit in law or equity’ clearly mark it
as an immunity from judicial process.” Brief for United
States 15.
7 While the United States is a party to this case and agrees with the
FMC that state sovereign immunity does not preclude the Commission
from adjudicating Maritime Services’ complaint against the SCSPA, it is
nonetheless a respondent because it did not seek review of the Court of
Appeals’ decision below. See this Court’s Rule 12.6. The United States
instead opposed the FMC’s petition for certiorari. See Brief for United
States in Opposition.

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Opinion of the Court
For purposes of this case, we will assume, arguendo, that
in adjudicating complaints filed by private parties under the
Shipping Act, the FMC does not exercise the judicial power
of the United States. Such an assumption, however, does
not end our inquiry as this Court has repeatedly held that
the sovereign immunity enjoyed by the States extends be-
yond the literal text of the Eleventh Amendment.8 See,
e. g., Alden, supra (holding that sovereign immunity shields
States from private suits in state courts pursuant to federal
causes of action); Blatchford v. Native Village of Noatak,
501 U. S. 775 (1991) (applying state sovereign immunity to
suits by Indian tribes); Principality of Monaco v. Missis-
sippi, 292 U. S. 313 (1934) (applying state sovereign immu-
nity to suits by foreign nations); Ex parte New York, 256
U. S. 490 (1921) (applying state sovereign immunity to admi-
ralty proceedings); Smith v. Reeves, 178 U. S. 436 (1900)
(applying state sovereign immunity to suits by federal corpo-
rations); Hans v. Louisiana, 134 U. S. 1 (1890) (applying
state sovereign immunity to suits by a State’s own citi-
zens under federal-question jurisdiction). Adhering to that
well-reasoned precedent, see Part II, supra, we must deter-
mine whether the sovereign immunity embedded in our con-
stitutional structure and retained by the States when they
joined the Union extends to FMC adjudicative proceedings.
A
“[L]ook[ing] first to evidence of the original understand-
ing of the Constitution,” Alden, 527 U. S., at 741, as well as
8 To the extent that Justice Breyer, looking to the text of the Elev-
enth Amendment, suggests that sovereign immunity only shields States
from “the ‘[j]udicial power of the United States,’ ” post, at 777 (dissenting
opinion), he “engage[s] in the type of ahistorical literalism we have re-
jected in interpreting the scope of the States’ sovereign immunity since
the discredited decision in Chisholm,” Alden v. Maine, 527 U. S. 706, 730
(1999). Furthermore, it is ironic that Justice Breyer adopts such a tex-
tual approach in defending the conduct of an independent agency that
itself lacks any textual basis in the Constitution.

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early congressional practice, see id., at 743–744, we find a
relatively barren historical record, from which the parties
draw radically different conclusions. Petitioner FMC, for
instance, argues that state sovereign immunity should not
extend to administrative adjudications because “[t]here is no
evidence that state immunity from the adjudication of com-
plaints by executive officers was an established principle at
the time of the adoption of the Constitution.” Brief for Peti-
tioner 28 (emphasis in original). The SCSPA, on the other
hand, asserts that it is more relevant that “Congress did not
attempt to subject the States to private suits before fed-
eral administrative tribunals” during the early days of our
Republic. Brief for Respondent SCSPA 19.
In truth, the relevant history does not provide direct guid-
ance 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 Govern-
ment, State and Federal, would amaze the Framers, and the
administrative state with its reams of regulations would
leave them rubbing their eyes”). Because formalized ad-
ministrative 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 Con-
stitution 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 there-
fore 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

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enforcement proceedings,” Reply Brief for United States
12, the earliest example it provides did not occur until 1918,
see id., at 14 (citing California Canneries Co. v. Southern
Pacific Co., 51 I. C. C. 500 (1918)).
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 adjudica-
tions, 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:
“There can be little doubt that the role of the modern
federal hearing examiner or administrative law judge
. . . is ‘functionally comparable’ to that of a judge. His
powers are often, if not generally, comparable to those
of a trial judge: He may issue subpoenas, rule on proffers
of evidence, regulate the course of the hearing, and
make or recommend decisions. More importantly, the
process of agency adjudication is currently structured
so as to assure that the hearing examiner exercises his
independent judgment on the evidence before him, free
from pressures by the parties or other officials within
the agency.” Id., at 513 (citation omitted).
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:
“[F]ederal administrative law requires that agency adju-
dication contain many of the same safeguards as are

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available in the judicial process. The proceedings are
adversary in nature. They are conducted before a trier
of fact insulated from political influence. A party
is entitled to present his case by oral or documentary
evidence, and the transcript of testimony and exhibits
together with the pleadings constitute the exclusive rec-
ord for decision. The parties are entitled to know the
findings and conclusions on all of the issues of fact, law,
or discretion presented on the record.” Ibid. (citations
omitted).
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 Ap-
peals’ 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 re-
markably strong resemblance to civil litigation in federal
courts. For example, the FMC’s Rules governing plead-
ings 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.

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Likewise, discovery in FMC adjudications largely mirrors
discovery in federal civil litigation. See 46 U. S. C. App.
§ 1711(a)(1) (1994 ed.) (instructing that in FMC adjudicatory
proceedings “discovery procedures . . . , to the extent practi-
cable, shall be in conformity with the rules applicable in civil
proceedings in the district courts of the United States”). In
both types of proceedings, parties may conduct depositions,
see, e. g., 46 CFR § 502.202 (2001); Fed. Rule Civ. Proc. 28,
which are governed by similar requirements. Compare
§§ 502.202, 502.203, and 502.204, with Rules 28, 29, 30, and 31.
Parties may also discover evidence by: (1) serving written
interrogatories, see § 502.205; Rule 33; (2) requesting that
another party either produce documents, see § 502.206(a)(1);
Rule 34(a)(1), or allow entry on that party’s property for the
purpose of inspecting the property or designated objects
thereon, § 502.206(a)(2); Rule 34(a)(2); and (3) submitting
requests for admissions, § 502.207; Rule 36. And a party
failing to obey discovery orders in either type of proceeding
is subject to a variety of sanctions, including the entry of
default judgment. See § 502.210(a); Rule 37(b)(2).
Not only are discovery procedures virtually indistinguish-
able, but the role of the ALJ, the impartial officer 9 desig-
nated to hear a case, see § 502.147, is similar to that of an
Article III judge. An ALJ has the authority to “arrange
and give notice of hearing.” Ibid. At that hearing, he may
“prescribe the order in which evidence shall be pre-
sented; dispose of procedural requests or similar mat-
ters; hear and rule upon motions; administer oaths and
affirmations; examine witnesses; direct witnesses to tes-
tify or produce evidence available to them which will aid
in the determination of any question of fact in issue; rule
9 See 46 CFR § 502.224 (2001) (requiring that ALJs be shielded from
political influence in a manner consistent with the Administrative Proce-
dure Act).

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upon offers of proof . . . and dispose of any other matter
that normally and properly arises in the course of pro-
ceedings.” Ibid.
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
therefor, upon all the material issues presented on the rec-
ord, and the appropriate rule, order, section, relief, or denial
thereof.” § 502.223. Such relief may include an order di-
recting 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 ex-
ceptions, appeals to the Commission or the Commission de-
cides to review the ALJ’s decision “on its own initiative.”
§ 502.227(a)(3). In cases where a complainant obtains repa-
rations, 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 administra-
tive practice.” 10 § 502.12.
10 In addition, “[u]nless inconsistent with the requirements of the Admin-
istrative Procedure Act and [the FMC’s Rules of Practice and Procedure],
the Federal Rules of Evidence [are] applicable” in FMC adjudicative pro-
ceedings. § 502.156.

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C
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 becom-
ing nor convenient that the several States of the Union, in-
vested with that large residuum of sovereignty which had
not been delegated to the United States, should be sum-
moned 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 fed-
eral 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 non-
consenting States . . . present ‘the indignity of subjecting a
State to the coercive process of judicial tribunals at the in-
stance 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 tribu-
nal as opposed to an Article III court.11 In both instances, a
State is required to defend itself in an adversarial proceeding
11 One, in fact, could argue that allowing a private party to haul a State
in front of such an administrative tribunal constitutes a greater insult to
a State’s dignity than requiring a State to appear in an Article III court
presided over by a judge with life tenure nominated by the President of
the United States and confirmed by the United States Senate.

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against a private party before an impartial federal officer.12
Moreover, it would be quite strange to prohibit Congress
from exercising its Article I powers to abrogate state sover-
eign immunity in Article III judicial proceedings, see Semi-
nole Tribe, 517 U. S., at 72, but permit the use of those same
Article I powers to create court-like administrative tribunals
where sovereign immunity does not apply.13
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 Commis-
sion’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
12 Contrary to the suggestion contained in Justice Breyer’s dissenting
opinion, our “basic analogy” is not “between a federal administrative pro-
ceeding triggered by a private citizen and a private citizen’s lawsuit
against a State” in a State’s own courts. Post, at 779. Rather, as our
discussion above makes clear, the more apt comparison is between a com-
plaint filed by a private party against a State with the FMC and a lawsuit
brought by a private party against a State in federal court.
13 While Justice Breyer asserts by use of analogy that this case impli-
cates the First Amendment right of citizens to petition the Federal Gov-
ernment for a redress of grievances, see ibid., the Constitution no more
protects a citizen’s right to litigate against a State in front of a federal
administrative tribunal than it does a citizen’s right to sue a State in fed-
eral court. Both types of proceedings were “anomalous and unheard of
when the Constitution was adopted,” Hans v. Louisiana, 134 U. S. 1, 18
(1890), and a private party plainly has no First Amendment right to haul
a State in front of either an Article III court or a federal administrative
tribunal.

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can only be enforced by a federal district court. See, e. g.,
46 U. S. C. App. § 1712(e) (1994 ed.) (enforcement of civil pen-
alties); §§ 1713(c) and (d) (enforcement of nonreparation and
reparation 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 partici-
pate in FMC proceedings, it is mistaken. The relevant stat-
utory 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 nonrepara-
tion order, and either the Attorney General or the injured
private party seeks enforcement of that order in a federal
district court,14 the sanctioned party is not permitted to liti-
gate the merits of its position in that court. See § 1713(c)
(limiting district court review to whether the relevant order
“was properly made and duly issued”). Moreover, if a party
fails to appear before the FMC, it may not then argue the
merits of its position in an appeal of the Commission’s deter-
mination filed under 28 U. S. C. § 2342(3)(B)(iv). See United
States v. L. A. Tucker Truck Lines, Inc., 344 U. S. 33, 37
(1952) (“Simple fairness to those who are engaged in the
tasks of administration, and to litigants, requires as a general
rule that courts should not topple over administrative deci-
sions unless the administrative body not only has erred but
14 A reparation order issued by the FMC, by contrast, may be enforced
in a United States district court only in an action brought by the in-
jured private party. See Part IV–B, infra. 46 U. S. C. App. § 1713(d)
(1994 ed.).

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has erred against objection made at the time appropriate
under its practice”).
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 im-
munity 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.15 To conclude that this choice does
15 While Justice Breyer argues that States’ access to “full judicial
review” of the Commission’s orders mitigates any coercion to participate
in FMC adjudicative proceedings, post, at 784, he earlier concedes that a
State must appear before the Commission in order “to obtain full judicial
review of an adverse agency decision in a court of appeals,” post, at 783.
This case therefore does not involve a situation where Congress has al-
lowed a party to obtain full de novo judicial review of Commission orders
without first appearing before the Commission, and we express no opinion
as to whether sovereign immunity would apply to FMC adjudicative pro-
ceedings under such circumstances.

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not coerce a State to participate in an FMC adjudication
would be to blind ourselves to reality.16
The United States and Justice Breyer maintain that any
such coercion to participate in FMC proceedings is permissi-
ble 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 adjudica-
tion initiated and pursued by a private party into one initi-
ated and pursued by the Federal Government. The prose-
cution 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 par-
ties. 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.” 17 Alden, supra, at 756.
16 Justice Breyer’s observation that private citizens may pressure the
Federal Government in a variety of ways to take other actions that affect
States is beside the point. See post, at 783–784. Sovereign immunity
concerns are not implicated, for example, when the Federal Government
enacts a rule opposed by a State. See post, at 784. It is an entirely
different matter, however, when the Federal Government attempts to co-
erce States into answering the complaints of private parties in an adjudi-
cative proceeding. See Part III–C, supra.
17 Moreover, a State obviously will not know ex ante whether the Attor-
ney General will choose to bring an enforcement action. Therefore, it is

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2
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 repa-
ration 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 misunder-
standing 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 citi-
zens,” Alden, supra, at 750–751, the doctrine’s central pur-
pose is to “accord the States the respect owed them as” joint
sovereigns. See Puerto Rico Aqueduct and Sewer Author-
ity 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
the mere prospect that he may do so that coerces a State to participate in
FMC proceedings. For if a State does not present its arguments to the
Commission, it will have all but lost any opportunity to defend itself in
the event that the Attorney General later decides to seek enforcement of a
Commission order or the Commission’s assessment of civil penalties. See
supra, at 762–764.

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a State is irrelevant to the question whether the suit is
barred by the Eleventh Amendment”).
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 permis-
sible 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 adjudi-
catory 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 sov-
ereign 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, ap-
pear on their face to confer such authority. For while repa-
ration 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 li-
able to the United States for a civil penalty”). The United

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States, moreover, does not even dispute that the FMC could
impose a civil penalty on a State for failing to obey a nonrep-
aration order, which, if enforced by the Attorney General,
would also result in a levy upon that State’s treasury.
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 uniform-
ity in the regulation of maritime commerce limits the States’
sovereignty with respect to the Federal Government’s au-
thority to regulate that commerce.” Brief for Petitioner 29.
This Court, however, has already held that the States’ sover-
eign immunity extends to cases concerning maritime com-
merce. 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 Govern-
ment,” 18 517 U. S., at 72. Thus, “[e]ven when the Constitu-
18 Justice Breyer apparently does not accept this proposition, see post,
at 776–778, maintaining that it is not supported by the text of the Tenth
Amendment. The principle of state sovereign immunity enshrined in our
constitutional framework, however, is not rooted in the Tenth Amendment.
See Part II, supra. Moreover, to the extent that Justice Breyer ar-

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tion vests in Congress complete lawmaking authority over a
particular area, the Eleventh Amendment prevents congres-
sional authorization of suits by private parties against uncon-
senting States.” Ibid. Of course, the Federal Government
retains ample means of ensuring that state-run ports comply
with the Shipping Act and other valid federal rules govern-
ing ocean-borne commerce. The FMC, for example, remains
free to investigate alleged violations of the Shipping Act,
either upon its own initiative or upon information supplied
by a private party, see, e. g., 46 CFR § 502.282 (2001), and to
institute its own administrative proceeding against a state-
run port, see 46 U. S. C. App. § 1710(c) (1994 ed.); 46 CFR
§ 502.61(a) (2001). Additionally, the Commission “may bring
suit in a district court of the United States to enjoin conduct
in violation of [the Act].” 46 U. S. C. App. § 1710(h)(1).19
Indeed, the United States has advised us that the Court of
Appeals’ ruling below “should have little practical effect on
the FMC’s enforcement of the Shipping Act,” Brief for
United States in Opposition 20, and we have no reason to
believe that our decision to affirm that judgment will lead to
the parade of horribles envisioned by the FMC.
B
Finally, the United States maintains that even if sovereign
immunity were to bar the FMC from adjudicating a private
gues that the Federal Government’s Article I power “[t]o regulate Com-
merce with foreign Nations, and among the several States,” U. S. Const.,
Art. I, § 8, cl. 3, allows it to authorize private parties to sue nonconsenting
States, see post, at 777–778, his quarrel is not with our decision today but
with our decision in Seminole Tribe of Fla. v. Florida, 517 U. S. 44 (1996).
See id., at 72.
19 For these reasons, private parties remain “perfectly free to com-
plain to the Federal Government about unlawful state activity” and “the
Federal Government [remains] free to take subsequent legal action.”
Post, at 776 (Breyer, J., dissenting). The only step the FMC may not
take, consistent with this Court’s sovereign immunity jurisprudence, is to
adjudicate a dispute between a private party and a nonconsenting State.

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party’s complaint against a state-run port for purposes of
issuing a reparation order, the FMC should not be precluded
from considering a private party’s request for other forms
of relief, such as a cease-and-desist order. See Brief for
United States 32–34. As we have previously noted, how-
ever, the primary function of sovereign immunity is not to
protect state treasuries, see Part III–C, supra, but to afford
the States the dignity and respect due sovereign enti-
ties. As a result, we explained in Seminole Tribe that “the
relief sought by a plaintiff suing a State is irrelevant to
the question whether the suit is barred by the Eleventh
Amendment.” 517 U. S., at 58. We see no reason why a
different principle should apply in the realm of administra-
tive adjudications.
* * *
While some might complain that our system of dual sover-
eignty is not a model of administrative convenience, see, e. g.,
post, at 785–786 (Breyer, J., dissenting), that is not its pur-
pose. 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 fun-
damental liberties.’ ” Atascadero State Hospital v. Scan-
lon, 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 encroach-
ments 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 Constitu-
tion and thus to “reduce the risk of tyranny and abuse from
either front.” Gregory v. Ashcroft, 501 U. S., at 458. Al-
though 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.

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Stevens, J., dissenting
Justice Stevens, dissenting.
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 in-
sufficient,’ ” Seminole Tribe of Fla. v. Florida, 517 U. S. 44,
97 (1996) (dissenting opinion; citation omitted), in part be-
cause “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 jurisdic-
tional issues: that the Court had personal jurisdiction over
the state defendant, and that it had subject-matter jurisdic-
tion over the case.1 The first proposed draft of a constitu-
tional amendment responding to Chisholm—introduced in
the House of Representatives in February 1793, on the day
after Chisholm was decided—would have overruled the first
1 See Nelson, Sovereign Immunity as a Doctrine of Personal Jurisdic-
tion, 115 Harv. L. Rev. 1561, 1565–1566 (2002).

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Stevens, J., dissenting
holding, but not the second. 2 That proposal was not
adopted. Rather, a proposal introduced the following day in
the Senate,3 which was “cast in terms that we associate with
subject matter jurisdiction,” 4 provided the basis for the
present text of the Eleventh Amendment.
This legislative history suggests that the Eleventh
Amendment is best understood as having overruled Chis-
holm’s subject-matter jurisdiction holding, thereby re-
stricting the federal courts’ diversity jurisdiction. How-
ever, 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 con-
cern of the Eleventh Amendment’s framers had been pro-
tecting the so-called “dignity” interest of the States, surely
Congress would have endorsed the first proposed amend-
2 The House proposal read: “[N]o state shall be liable to be made a party
defendant, in any of the judicial courts, established, or which shall be es-
tablished under the authority of the United States, at the suit of any per-
son or persons, whether a citizen or citizens, or a foreigner or foreigners,
or of any body politic or corporate, whether within or without the United
States.” Id., at 1602, and n. 211 (quoting Proceedings of the United States
House of Representatives (Feb. 19, 1793), Gazette of the United States,
Feb. 20, 1793, reprinted in 5 Documentary History of the Supreme Court
of the United States, 1789–1800, pp. 605–606 (M. Marcus ed. 1994)) (inter-
nal quotation marks omitted).
3 The Senate proposal read: “The Judicial Power of the United States
shall not extend to any Suits in Law or Equity commenced or prosecuted
against any one of the United States by Citizens of another State or by
Citizens or Subjects of any foreign State.” Nelson, supra, at 1603, and
n. 212 (quoting Resolution in the United States Senate (Feb. 20, 1793),
reprinted in 5 Documentary History of the Supreme Court, supra, at 607–
608) (internal quotation marks omitted). The Senate version closely
tracked the ultimate language of the Eleventh Amendment. See U. S.
Const., Amdt. 11 (“The 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, or by Citi-
zens or Subjects of any Foreign State”).
4 Nelson, supra, at 1603.

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Breyer, J., dissenting
ment granting the States immunity from process, rather
than the later proposal that merely delineates the subject-
matter jurisdiction of courts. Moreover, as Chief Justice
Marshall recognized, a subject-matter reading of the Amend-
ment makes sense, considering the States’ interest in avoid-
ing their creditors. See Cohens v. Virginia, 6 Wheat., at
406–407.
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 ex-
tending 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 com-
plaint against a State to a federal administrative agency
where the agency (1) will use an internal adjudicative proc-
ess to decide if the complaint is well founded, and (2) if so,
proceed to court to enforce the law. Where does the Consti-
tution 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.

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I
At the outset one must understand the constitutional
nature of the legal proceeding before us. The legal body
conducting the proceeding, the Federal Maritime Commis-
sion, is an “independent” federal agency. Constitutionally
speaking, an “independent” agency belongs neither to the
Legislative Branch nor to the Judicial Branch of Govern-
ment. Although Members of this Court have referred to
agencies as a “fourth branch” of Government, FTC v. Ruber-
oid Co., 343 U. S. 470, 487 (1952) (Jackson, J., dissenting), the
agencies, even “independent” agencies, are more appropri-
ately 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 adju-
dicating 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 dele-
gate 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 safe-
guards 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 (re-
quiring judicial review). And the Court denied that those
activities as safeguarded, however much they might resem-
ble the activities of a legislature or court, fell within the

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scope of Article I or Article III of the Constitution. Schech-
ter Poultry, supra, at 529–530; Crowell, supra, at 50–53; see
also INS v. Chadha, 462 U. S. 919, 953, n. 16 (1983) (agency’s
use of rulemaking “resemble[s],” but is not, lawmaking).
Consequently, in exercising those powers, the agency is en-
gaging in an Article II, Executive Branch activity. And the
powers it is exercising are powers that the Executive Branch
of Government must possess if it is to enforce modern law
through administration.
This constitutional understanding explains why both com-
mentators 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 Rule-
making or Adjudication in the Development of Administra-
tive 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” in-
dicate 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 Truck-
ing 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

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regulations, § 1716 (1994 ed.), by issuing or revoking licenses,
§ 1718 (1994 ed., Supp. V), and by conducting investigations
and issuing reports, see generally § 1710 (1994 ed. and Supp.
V). It also permits a private person to file a complaint,
which the Commission is to consider. § 1710(a) (1994 ed.).
Interestingly enough, it does not say that the Commission
must determine the merits of the complaint through agency
adjudication, see § 1710(g) (1994 ed., Supp. V)—though, for
present purposes, I do not see that this statutory lacuna
matters.
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 deci-
sion, §§ 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 decision-
maker, 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 con-
siderable 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 cre-
ated. 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 cer-
tain activity or that tells one party to pay money damages
(called “reparations”) to another. The Commission cannot

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itself enforce such an order. See 46 U. S. C. App. § 1712(e).
Rather, the Shipping Act says that, to obtain enforcement of
an order providing for money damages, the private party
beneficiary of the order must obtain a court order. § 1713(d).
It adds that, to obtain enforcement of other commission or-
ders, either the private party or the Attorney General must
go to court. § 1713(c). It also permits the Commission to
seek a court injunction prohibiting any person from violating
the Shipping Act. § 1710(g) (1994 ed., Supp. V). And it
authorizes the Commission to assess civil penalties (payable
to the United States) against a person who fails to obey a
Commission order; but to collect the penalties, the Commis-
sion, again, must go to court. §§ 1712(a), (c) (1994 ed. and
Supp. V).
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 vio-
lated federal law. Cf. 2 K. Davis & R. Pierce, Administra-
tive 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 Gov-
ernment 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

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justified? As I have said, I cannot find that principle any-
where in the Constitution.
II
The Court’s principle lacks any firm anchor in the Consti-
tution’s text. The Eleventh Amendment cannot help. It
says:
“The Judicial power of the United States shall not . . .
extend to any suit . . . commenced or prosecuted against
one of the . . . States by Citizens of another State.”
(Emphasis added.)
Federal administrative agencies do not exercise the “[j]udi-
cial power of the United States.” Compare Crowell v. Ben-
son, 285 U. S. 22 (1932) (explaining why ordinary agency ad-
judication, 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. Louisi-
ana, 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 powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are re-
served to the States respectively, or to the people.”
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.

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But the text of the Tenth Amendment says nothing about
any such hidden reservation, one way or the other.
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 consti-
tutional “postulate,” namely, that the States retain their im-
munity from “suits, without their consent,” unless there has
been a “surrender” of that immunity “in the plan of the con-
vention,” 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 Constitu-
tion’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 disadvan-
tage that they do not actually appear anywhere in the Con-
stitution. Cf. generally Harmelin v. Michigan, 501 U. S.
957, 985–986 (1991). Regardless, unless supported by con-
siderations 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 un-
grounded 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

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the very history to which the majority turned in Alden here
argues against the Court’s basic analogy—between a federal
administrative proceeding triggered by a private citizen and
a private citizen’s lawsuit against a State.
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 de-
sign,” 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—belong-
ing 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 Fed-
eral 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 jurispru-
dence, 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 be-

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cause a private citizen has asked the Federal Government to
determine whether the State has complied with federal law
and, if not, to take appropriate legal action in court.
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 es-
tablishes.) Yet the analogy seems apt. A private citizen,
believing that a State has violated federal law, seeks a deter-
mination 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 com-
ply, the Federal Government may bring an action against the
State in federal court to enforce the federal law.
Twentieth-century legal history reinforces the appropri-
ateness of this description. The growth of the administra-
tive 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 pro-
ceed either through agency adjudication or through rule-
making, SEC v. Chenery Corp., 332 U. S., at 203 (“[T]he
choice made between proceeding by general rule or by in-
dividual, 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 anal-
ogize 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 in-
dividual against a State in a federal court.
This is not to say that the analogy (with a citizen petition-
ing for federal intervention) is, historically speaking, a per-
fect 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

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ignore the relevance and importance of what the Framers
did say. And it is doubly wrong to attach “great” legal “sig-
nificance” to the absence of 18th- and 19th-century adminis-
trative agency experience. See ibid. Even if those alive in
the 18th century did not “anticipat[e] the vast growth of the
administrative state,” ibid., they did write a Constitution de-
signed to provide a framework for Government across the
centuries, a framework that is flexible enough to meet mod-
ern needs. And we cannot read their silence about particu-
lar means as if it were an instruction to forbid their use.
IV
The Court argues that the basic purpose of “sovereign im-
munity” doctrine—namely, preservation of a State’s “dig-
nity”—requires application of that doctrine here. It rests
this argument upon (1) its efforts to analogize agency pro-
ceedings to court proceedings, and (2) its claim that the
agency proceedings constitute a form of “compulsion” exer-
cised 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 sover-
eign 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 com-
plaint, the agency will adjudicate the complaint, and the

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agency will reach a decision. The State subsequently may
take the matter to court in order to obtain judicial review of
any adverse agency ruling, but, if it does so, its opponent in
that court proceeding is not a private party, but the agency
itself. 28 U. S. C. § 2344. (And unlike some other adminis-
trative schemes, see, e. g., Verizon Md. Inc. v. Public Serv.
Comm’n of Md., ante, at 651–653 (Souter, J., concurring),
the Commission would not be a party in name only.) Alter-
natively, the State may do nothing, in which case either the
Commission or the Attorney General must seek a court order
compelling the State to obey. 46 U. S. C. App. §§ 1710, 1713
(1994 ed. and Supp. V). The Commission, but not a private
party, may assess a penalty against the State for noncompli-
ance, § 1712; and only a court acting at the Commission’s re-
quest can compel compliance with a penalty order. In sum,
no one can legally compel the State’s obedience to the Ship-
ping Act’s requirements without a court order, and in no case
would a court issue such an order (absent a State’s voluntary
waiver of sovereign immunity, see Atascadero State Hospi-
tal v. Scanlon, 473 U. S. 234, 238 (1985)) absent the request
of a federal agency or other federal instrumentality.
In Alden this Court distinguished for sovereign immunity
purposes between (a) a lawsuit brought by the Federal Gov-
ernment 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 Govern-
ment may institute a court proceeding; and, in deciding

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whether to do so, the Federal Government will exercise
appropriate political responsibility. Cf. ibid.
Viewed from a practical perspective, the Court’s “com-
pulsion” 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 mon-
etary 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 suffi-
ciently “affront” a State’s “dignity” as to warrant constitu-
tional “sovereign immunity” protections, for it is easy to
imagine comparable instances of clearly lawful private citi-
zen 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 com-
pliance with a statute or federal rule, even though from that
formal declaration may flow a host of legal consequences ad-
verse 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

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an agency staff member to investigate the matter, which
investigation would lead to an order similar to the order
at issue here with similar legal and practical consequences.
Viewed solely in terms of practical pressures, the pres-
sures upon a State to respond before Congress or the agency,
to answer the private citizen’s accusations, to oppose his re-
quests 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 con-
stitutional “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 par-
ties in an adjudicative proceeding,” ante, at 764, n. 16—sim-
ply begs the question of when and why States should be enti-
tled 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 meaning-
ful 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 in-

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terpret existing statutes as permitting in such actions what-
ever form of judicial review the Constitution demands.
Cf. Crowell v. Benson, 285 U. S., at 45–47. Statutory lan-
guage that authorizes review of whether an order was “prop-
erly made and duly issued,” 46 U. S. C. App. § 1713(c), does
not forbid review that the Constitution requires. But even
were I to make the heroic assumption (which I do not be-
lieve) that this case implicates a reviewing court’s statutory
inability to apply constitutionally requisite standards of judi-
cial review, I should still conclude that the Constitution per-
mits the agency to consider the complaint here before us.
The “review standards” problem concerns the later enforce-
ability of the agency decision, and the Court must consider
any such problem later in the context of a court order grant-
ing or denying review. Ashwander v. TVA, 297 U. S. 288,
347 (1936) (Brandeis, J., concurring) (“ ‘It is not the habit of
the Court to decide questions of a constitutional nature un-
less absolutely necessary to a decision of the case’ ”).
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 enforce-
ment. 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 selec-
tion of methods for policy formulation”). And at least one
of these consequences, the forced growth of unnecessary fed-
eral bureaucracy, undermines the very constitutional objec-

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tives the Court’s decision claims to serve. Cf. Printz v.
United States, 521 U. S. 898, 959 (1997) (Stevens, J., dissent-
ing) (“In the name of State’s rights, the majority would have
the Federal Government create vast national bureaucracies
to implement its policies”); id., at 976–978 (Breyer, J.,
dissenting).
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 re-
sponses to complaints, for example, of improper medical care
(involving state hospitals). Cf. generally Macchiaroli, Medi-
cal Malpractice Screening Panels: Proposed Model Legisla-
tion 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 flexibil-
ity that the Constitution permits and which modern govern-
ment demands. The Court derives from the abstract notion
of state “dignity” a structural principle that limits the pow-
ers 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 considera-
tions of constitutional purpose or related consequence. In
its readiness to rest a structural limitation on so little evi-
dence and in its willingness to interpret that limitation so

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broadly, the majority ignores a historical lesson, reflected in
a constitutional understanding that the Court adopted long
ago: An overly restrictive judicial interpretation of the Con-
stitution’s structural constraints (unlike its protections of
certain basic liberties) will undermine the Constitution’s own
efforts to achieve its far more basic structural aim, the cre-
ation of a representative form of government capable of
translating the people’s will into effective public action.
This understanding, underlying constitutional interpreta-
tion 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 inabil-
ity 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, liberty-
protecting 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 permit-
ting 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.,

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527 U. S., at 693 (Breyer, J., dissenting); Florida Prepaid
Postsecondary Ed. Expense Bd. v. College Savings Bank,
527 U. S. 627, 648 (1999) (Stevens, J., dissenting); Seminole
Tribe of Fla. v. Florida, 517 U. S., at 100 (Souter, J., dis-
senting). These decisions set loose an interpretive principle
that restricts far too severely the authority of the Federal
Government to regulate innumerable relationships between
State and citizen. Just as this principle has no logical start-
ing place, I fear that neither does it have any logical stop-
ping point.
Today’s decision reaffirms the need for continued dissent—
unless the consequences of the Court’s approach prove ano-
dyne, as I hope, rather than randomly destructive, as I fear.