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New Jersey appears to be edging out its New York neighbor in SCOTUS battle over regulation of waterfront

A container ship makes it way toward the Port of New York and New Jersey in Elizabeth, N.J., Wednesday, June 30, 2021. (AP Photo/Seth Wenig)

A container ship makes it way toward the Port of New York and New Jersey in Elizabeth, N.J., Wednesday, June 30, 2021. (image via AP Photo/Seth Wenig)

New York and New Jersey battled it out before the justices Wednesday in a case about the future of a decades-old agreement between the states made to control corruption on the docks at the busiest port in the world.

In New York v. New Jersey, the Supreme Court exercises its rarely-used “original jurisdiction” as primary arbiter of disputes between states. The battle is one that has been simmering for decades over the bi-state agency known as the Waterfront Commission of New York Harbor (WCNYH).

The Commission was put into place in 1953 to stop the dockworker corruption and mob violence at the New York shoreline immortalized onscreen in On the Waterfront with Marlon Brando, Karl Malden, Rod Steiger, and Eva Marie Saint. The Garden State and the Empire State entered into a compact to create the agency, that compact was sanctioned by Congress, then per the agreement, each state passed its own corresponding statute.

The Port of New York and New Jersey, which is the approximately 25-mile radius encircling the Statue of Liberty, is regulated by the WCNYH. The port includes 700+ miles of navigable waterways along the shoreline of New York City and the “Gateway Region” of Northeastern New Jersey. As of August 2022, the region is the busiest port in the world.

The Garden State has wanted out of the agreement for a while, and has long held the position that the WCNYH’s strict regulations unnecessarily stifle port commerce, and that the Commission was only ever meant to be temporary. New Jersey attempted to dissolve the WCNYH in 2018, but then-Gov. Chris Christie (R) vetoed legislation that would have done so.

New York contends that without the agreement, the largest port on the East Coast will lack security and become destabilized.  New York also asserts that since the agreement itself does not specifically allow for termination, that New Jersey is expected to keep the WCNYH going until both states agree to dissolve it.

When Solicitor General of New York Judith Vale ascended the podium on behalf of the Empire State, she faced a skeptical bench.

As has been his habit in past cases, Justice Clarence Thomas immediately reduced the dispute to a matter of states’ rights, and asked Vale whether disallowing New Jersey to leave the compact would “sacrifice sovereignty.”

Vale advanced New York’s argument that the compact’s silence as to an end date indicates that there was no end date intended.

“If you don’t say anything about termination, it means you’re sticking together until you choose to end it,” she told the justices.

Justice Ketanji Brown Jackson was unconvinced.

“Maybe there was no termination clause… because they were worried about signaling to the mob bosses that they would be leaving,” Jackson suggested.

Justice Elena Kagan, a New Yorker herself, also appeared hesitant to accept New York’s position, and told Vale that siding with New York would require the Court to abandon ordinary contract principles. Vale responded that compacts are not contracts, but rather, are “a unique form of sovereign agreement.”

Chief Justice John Roberts focused on the more practical side of waterfront operations, and the kind of unfairness that could result if New Jersey were bound to the compact in perpetuity. Roberts pointed out that in 1953, the majority of port business occurred on the New York side — but that now, 80% of the business occurs on the New Jersey side.

Roberts hypothesized about a situation in which 100% of the business occurred on the New Jersey side and asked whether New Jersey could leave the compact in that event, or whether New York could maintain “considerable authority over what is just New Jersey business?”

Kagan also pressed Vale on the practicalities of forcing New Jersey to stay in an agreement against its will. Noting that “most people” do not end up before the Supreme Court unless they are at an unmanageable impasse, Kagan asked whether New York and New Jersey could possibly continue to work well together in the event the Court rules that New Jersey must remain part of the compact.

Justice Samuel Alito, the sole New Jersey native on the bench, was the lone justice to throw Vale a few softball questions.

“If this were a treaty, could New Jersey unilaterally withdraw?” Alito queried. “Has the United States unilaterally withdrawn from treaties?” he continued.

Solicitor General of New Jersey Jeremy Feigenbaum turned the conversation toward the nature of the compact itself. Feigenbaum argued that unlike a bi-state agreement over something fixed —such as boundary disputes or water rights — an agreement that requires “continued performance” from two states is one that either state has the right to withdraw from when it chooses.

Though Feigenbaum’s argument seemed to find soft landing with several of the justices, Roberts noted that no such distinction was supported by past Supreme Court rulings.

Assistant to the Solicitor General Austin Raynor argued the case for the Biden administration as an amicus curiae, siding with New Jersey. Raynor told the justices that the compact operated with the force of federal law, because Congress consented to it.

Though Raynor held the position that New Jersey has the right to exit the compact, he acknowledged in response to a question from Justice Amy Coney Barrett that the law is “unclear” as to whether “unilateral withdrawal” would be permitted in a treaty.

You can listen to the full oral arguments here.

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos