After being in limbo for nine months, New York v. New Jersey—also known as the New York-New Jersey Waterfront Commission case—will soon be litigated in the U.S. Supreme Court, with oral arguments being made beginning February 27, 2023.
The issue, as it stands, is whether the Supreme Court should issue declaratory judgment and/or enjoin New Jersey from withdrawing from its Waterfront Commission Compact with New York, which grants the Waterfront Commission of New York Harbor broad regulatory and law-enforcement powers over all operations at the Port of New York and New Jersey.
While New Jersey has sought to unilaterally withdraw from the decades-old bi-state agreement and, in turn, the commission of New York Harbor due to outdatedness, New York argues the exit would be in violation of the Compacts Clause of the Constitution.
“Protecting the safety of New Yorkers and our vital industries is my top priority, and we cannot afford to lose the Waterfront Commission’s unique authority and expertise in combating crime at our port,” said New York Governor Kathy Hochul on March 14, 2022, when New York filed legal action in the Supreme Court to block New Jersey from terminating the Waterfront Commission. “In light of current geopolitical uncertainty, the termination of the Waterfront Commission would cause immediate and irreparable harm to New York state, from increased crime to higher prices to employment inequities. It is our responsibility to New Yorkers to stop New Jersey’s unlawful actions and preserve the ongoing work of this law enforcement agency.”
“Governor [Phil] Murphy continues to believe that New Jersey should have the right to withdraw from a nearly 70-year-old commission that does not meet today’s needs or serve New Jersey’s interests,” said Bailey Lawrence, a spokesperson for the New Jersey governor, as reported by Law360 on October 24, 2022. “He looks forward to the case being argued during the Supreme Court’s upcoming term and remains optimistic that New Jersey will prevail.”
“Whatever kinds of regulations, of course, that we’d have today would have to reflect the kind of new reality of labor and commerce on the ports, which are significantly different from the 1950s,” said Peter Catapano, history professor at City Tech, on Dec. 9 during the Brooklyn Waterfront Research Center’s breakfast talk webinar, titled “What is the New York-New Jersey Waterfront Commission…And Do We Still Need It?” The three-person panel discussed, in part, the origins of the Waterfront Commission, its legacy, and the debate over whether the Commission should continue.
A Very Brief History
Following World War II, national attention was primarily drawn towards the existence of organized crime and its influence down at the docks thanks to The New York Sun’s Macolm Johnson and his 24-article series, “Crime on the Waterfront” (which was published in 1948, won a Pulitzer Prize for local reporting in 1949, and inspired the film adaptation, “On the Waterfront,” that was released in 1954). In 1950, the U.S. Senate Special Committee to Investigate Crime in Interstate Commerce was created to investigate crime, particularly in the shipping industry, as Senate hearings became increasingly covered by newspapers as well as shown in local theaters to the public. A year later, the New York State Crime Commission identified forms of labor racketeering, extortion, and union corruption, and issued a report with numerous recommendations—including the creation of the Waterfront Commission of New York Harbor. The Waterfront Commission was established in 1953 after being passed by both state legislatures of New York and New Jersey and Congress as well as being signed into law by then-President Dwight D. Eisenhower.
The primary goals of the compact were to police local organized crime and end corruption at shipping terminals in the two states, ultimately replacing the daily “shape-up” (in which prospective workers forcibly competed against one another to secure work despite union membership status) with a state-run employment center. A host of regulations were ushered in, those with criminal records were barred from serving as union officials, and containerization later gained popularity in the 1960s.
To put the workforce into context, about 40,000 to 50,000 workers were showing up at the docks in 1953 and about 8,000 registered workers were showing up by 1980, according to Catapano. Additionally, in 1953, about 20-percent of all exports and imports came through Red Hook, Brooklyn and Chelsea, New York. By the 1970s, only about 8.4-percent of all exports and imports were coming through New York due to transformations in the global economy and trade. New York docks—particularly in Red Hook, Brooklyn—currently handle a sliver of the New York Harbor and port trade compared to New Jersey’s estimated 80 to 90 percent.
The Present Day
Just as it was 70 years ago, the Waterfront Commission remains structured with one commissioner from New York and one commissioner from New Jersey. It is set up differently from other interstate agreements including the Port Authority of New York and New Jersey, which was created in 1921.
“There’s this whole sort of structure to deal with political conflicts, [how] to avoid them, and [how to] reach compromises, and that doesn’t exist right now at the Waterfront Commission,” said Ry Rivard, a reporter who covers energy, the environment, and transportation in New Jersey for POLITICO, during the webinar. “So, there has been tension over the past couple of decades about whether the Waterfront Commission should still exist in its current form or whether it should exist at all.”
Given that shipping activity is largely in its state, New Jersey has tried to leave the Waterfront Commission since 2018, when then-Governor Chris Christie signed a bill (which he previously vetoed in 2015) on his last day of office. Upon assuming the position, current Governor Phil Murphy—who previously promised members of the International Longshoremen’s Association that he would, as he declared in his campaign speech before the 2017 election, “figure out the damn Waterfront Commission once and for all”—was faced with a lawsuit on his first day of office. The Waterfront Commission sued to save itself and, after years tied up in court, the case was turned away in 2021 on issues of standing.
Soon after, New Jersey went back to the drawing board to determine how it could pull out of the compact, primarily looking to shift policing of the port and background checks to the state police, which already reportedly plays a similar role in the state’s waste management and casino industries. New York then entered the conversation, arguing that workers move back and forth between the two states’ ports and that it makes sense to keep the current compact intact. The U.S. Solicitor General, as well some states including Texas, have since sided with New Jersey. Some academics and other states have expressed concern in their submitted amicus curiae briefs over whether a Supreme Court ruling could affect other interstate compacts.
The Supreme Court docket has recorded the arguments being filed by both the defendant and plaintiff since March 2022. In layman’s terms, New Jersey argues that the Waterfront Commission hinders harbor business and causes labor shortages with a lengthy hiring process. It also argues that the industry today is not what it was in the 1950s and that this particular type of regulator (the compact) is not warranted. New York—and the Waterfront Commission itself—believes that, without the compact, the industry could go backwards to what it once was.
“The Supreme Court is not trying to get into the goods or bads of the commission, but really the simple legal question … of whether New Jersey can unilaterally leave this bi-state compact,” said Rivard. “New Jersey obviously thinks it can, New York obviously doesn’t think it should be able to. We just don’t know what the court is going to do.”
