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From the shores of New York Harbor, a scuffle over port security and state sovereignty

aerial view of busy seaport crowded with containers. a body of water separates the port in the foreground from the manhattan skyline in the background.

Seventy years ago, New York and New Jersey teamed up to fight corruption at the docks serving New York Harbor. Using an interstate compact, they created a waterfront commission with police power. That commission sharply reduced the influence of organized crime on both sides of the Hudson River, but New Jersey now wants to pull out of the compact because it thinks the commission is stifling economic growth through over-regulation. New York objects, saying that continued interstate cooperation is necessary to keep crime at bay. Wednesday’s argument in New York v. New Jersey will bring a debate about whether the terms of the compact leave New Jersey a unilateral right to withdraw.

In some ways, the case is refreshing – unlike so many of the cases this year, the representatives here both present direct and straightforward arguments on the question the justices agreed to hear. For New Jersey, the central tenet is sovereignty. To say that New Jersey can be forced to continue in the commission is to say that New Jersey has given up the right to do as it wishes with its side of the port. Not a word in the Waterfront Commission Compact suggests that New Jersey cannot unilaterally leave the commission.

And the structure of the compact strongly suggests that it can, as it requires unanimous action by the two states for many activities of the commission. For example, the commission cannot act without the presence of both commissioners or over the dissenting vote of either commissioner. The commission cannot even approve a budget without the agreement of both commissioners. So, New Jersey argues, if New Jersey plainly would be within its rights to stop the commission from taking any actions, making any decisions, or adopting a budget, how much sense can it make to conclude that the compact implicitly bars New Jersey from withdrawing entirely from the commission? The federal government’s brief supporting New Jersey relies heavily on those last points.

For its part, New York argues that the case should turn on intent. For New York, the circumstances of the compact show that the parties did not intend to permit unilateral withdrawal. New York’s strongest point is that many contemporary compacts explicitly permitted or addressed the question of withdrawal; those that addressed withdrawal uniformly prohibited it. The absence of any provision on that point strongly suggests, to New York at least, that the parties did not intend to tolerate unilateral withdrawal. Thus, New York urges the court to adopt a default rule that prevents unilateral withdrawal unless the compact explicitly opts out of it. Because this commission does not opt out of that rule, New Jersey should be bound to the arrangement to which it agreed.

It seems to me likely that the answer here will be quite clear by the end of Wednesday’s argument. Unless the justices come in with a strong predisposition to adopt a presumption against unilateral withdrawal, my guess is that a strong majority of them will think it is too much of an intrusion on a state’s sovereignty to bind it to perpetual membership without an explicit statement in the governing compact. We’ll know more then.

Recommended Citation: Ronald Mann, From the shores of New York Harbor, a scuffle over port security and state sovereignty, SCOTUSblog (Feb. 27, 2023, 11:18 PM),