America’s ‘critical period’ redux?
The Supreme Court justices might be bemused, or depressed, by this question they implicitly consider in Thursday’s conference: Should they review - the answer is yes - a decision by a lower court that evidently skipped history class the day the teacher explained that a huge defect of the Articles of Confederation was the states’ powers to impede the free flow of interstate commerce?
This led to replacing the Articles with the Constitution, which gives Congress responsibility for regulating such commerce.
Were the Supreme Court to allow the lower court’s decision to stand, this would ignore a lesson the Constitution’s Framers learned the hard way by living through what is called the “critical period” of U.S. history. John Quincy Adams used this phrase, which later was adopted by scholars to describe the years 1781-1789, between the Revolutionary War and ratification of the Constitution, when George Washington said the states were held together by “a rope of sand.”
Connecticut imposed duties on imports from Massachusetts, Pennsylvania had hostile trade relations with Delaware and, according to a historian, “New Jersey, pillaged at once by both her greater neighbors, was compared to a cask tapped at both ends.”
At issue Thursday is a mundane matter - construction of an infrastructure project - and a momentous question: Should New Jersey be able to stymie the exercise of a federal grant of eminent domain power, thereby blocking construction of a pipeline to deliver approximately a billion cubic feet of natural gas per day to the Northeast, including New Jersey?
In the 19th century, every state delegated eminent domain power to private companies to produce what were then called “internal improvements” - canals, turnpikes, railroads.
Congress amended the Natural Gas Act (NGA) in 1947 in response to various states’ interferences with delegated eminent domain powers - e.g., Wisconsin insisted that only Wisconsin-based companies could exercise eminent domain power, and Nebraska said the power could be exercised only by companies that distributed gas within Nebraska.
Congress empowered the Federal Energy Regulatory Commission (FERC) to authorize private gas companies to exercise the federal government’s powers of eminent domain to secure necessary rights of way for interstate pipelines, of which there are now 2.6 million miles.
For seven decades, courts have affirmed that this delegated power can be used against state- owned property or other property in which a state claims an interest for, say, recreational or conservation purposes. (New Jersey claims an interest in more than 15% of its land.) However, the U.S. Court of Appeals for the Third Circuit says the NGA does not delegate to the federal government an exemption from a state’s sovereign immunity under the Constitution’s 11th Amendment.
If you have not recently pondered this amendment, it reads:
“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 citizens or subjects of any foreign state.”
See the relevance to the pipeline? Didn’t think so, there being none.
A district court correctly held that a pipeline company vested with the federal government’s undisputed eminent domain powers “stands in the shoes of the sovereign.” The Third Circuit, however, said the company seeking to build in New Jersey cannot sue the state in order to proceed with construction until the federal government explicitly delegates to the pipeline company the power to sue states.
But the 11th Amendment was ratified in 1795 primarily to preclude private-party suits that might impoverish state governments. The states lost all immunity from federal eminent domain authority when the Constitution was ratified. Under the Supremacy Clause, Congress, through the NGA and FERC, has long been delegating its eminent domain power against all property, state- owned as well as private, unless a delegation explicitly carves out exceptions.
On Thursday, when the justices gather to consider hearing the challenge to the Third Circuit’s ruling, they may well wonder: Is (BEG ITAL) any (END ITAL) question ever settled in this litigious country? The question of whether the federal government is exempt from the 11th Amendment’s grant of immunity to states had better be settled, considering that natural gas supplies almost a quarter of U.S. energy consumption, and that innumerable infrastructure projects of all sorts depend on the exemption.
Benjamin Franklin supposedly described New Jersey as a valley of humility between two peaks of conceit, New York City and Philadelphia. This state has another humiliation coming.