Stuart, why are these two states arguing over this? I mean, doesn’t the federal government actually own and operate the museum on the land there?

STUART TAYLOR, National Journal: Yes, it exerts total control. New York does collect about $500,000 a year in tax revenues from concession stands that are in the historic part, but this dispute, as the deputy assistant solicitor general suggested for the United States and the argument today has little to do with practical consequences and a lot to do with perhaps symbolism, bragging rights over this historic immigration gateway. It has a lot to do with the territorial imperative. In fact, The New York Times gave an interesting example–an editorial which we were reminded of courtesy of The Washington Post this morning–in whichThe New York Times said, "New Jersey’s attempt to snatch Ellis Island is unfriendly, unbecoming, un-American, untoward, unhelpful, unprincipled, unseemly, unwarranted, and underhanded," to which a New Jerseyian might add "and right."

MARGARET WARNER: So taxpayers might ask, why is the Supreme Court taking its time with this?

STUART TAYLOR: In fact, the Clinton administration, the Justice Department said don’t waste your time on this; it’s a theoretical abstract controversy; it’s not at all clear that any of the tax revenues would go to New Jersey even if it owns the land it says it owns. And there are some future development possibilities that are very speculative. But the court took it anyway. And I suppose it’s because the United States Constitution prescribes as the original jurisdiction of the Supreme Court a very few types of controversy which the framers considered very important. And a suit by one state against another is one of those. It doesn’t go to a lower court; it goes straight to the Supreme Court. And I think the Supreme Court out of respect for the sovereignty of the states bends over to hear these cases unless it thinks they’re really silly and frivolous.

MARGARET WARNER: So what did the lawyers or lawyer for New Jersey say today, argue today?

STUART TAYLOR: Joseph Jianati, an assistant attorney general from New Jersey who went first, basically said the special master professor Verkuil was right in holding an 1834 compact–an agreement between New York and New Jersey with many clauses–which was approved by Congress–gives New York Ellis Island itself, as a matter of sovereign jurisdiction. Remember, the United States has owned it, the federal government, all along, so this is a matter of governing authority, which may not mean much when it’s the United States that own it, but also gives the surrounding waters and the land under them New Jersey.

This was the fundamental finding of the special master that was ruling that all of the filled area, which is most of Ellis Island now, and is–is–used to be submerged in Jersey, and, therefore, it still belongs to New Jersey in its sovereign sense; however, there’s a problem with that argument, which is another clause of the provision slices it very fine. It says New Jersey owns the surrounding waters and land, but New York has jurisdiction over them. And Mr. Jianati, the New Jersey lawyer, argued that all that means is jurisdiction over navigation and ships and boats and the like, and if you fill the land in, then there’s no navigation, no ships, no boats, it reverts–it’s all New Jersey, except for it’s really the United States’.

MARGARET WARNER: And then what was the New York lawyer’s main argument?

STUART TAYLOR: Daniel Smerlock, arguing for the state of New York, said the plain language of the 1834 compact says New York has jurisdiction over Ellis Island. This is Ellis Island, and that does it. Now, he had–in order to account for the fact that Ellis Island is much bigger now than it is then, it said the bigger it got the more New York owned. And Chief Justice Rehnquist said that doesn’t found like a very good deal for New Jersey, and the lawyer for New York said, well, there are checks and balances. We wouldn’t fill land all the way over to the Jersey shore because once you touch the Jersey shore, suddenly it would belong to New Jersey, not to us anymore, again, belong in the sense of sovereignty jurisdiction, because it wouldn’t be an island anymore. And this provision only applies to islands. And Rehnquist thought that that wasn’t a very good deal for New Jersey either, but part of the argument New York is making and a bunch of historians join in its side, is New Jersey was–didn’t make a very good deal for itself because for political reasons at the time New Jersey was feeling a lot of pressure to agree to what New York wanted.

MARGARET WARNER: All right. So how did the justices respond to all this?

STUART TAYLOR: I mentioned Chief Justice Rehnquist, who hammered away at the New York argument a fair amount. And I’d say there were–there was tough questioning on both sides, but I think the court generally tends to defer to special masters, as Prof. Verkuil was, in cases like that, who have heard lots of evidence. And on a particular point, they seem likely to defer to this one, and it could be important. The special master found unpersuasive New York’s contention that as a historical matter everybody in 1834 knew that they were landfilling all over the New York area, knew that Ellis Island was going to grow, and, therefore, new and assumed that New York’s jurisdiction would grow with it. The special master said he didn’t think that evidence was convincing. A number of historians, including Arthur Schlessinger, have come into the court with friend of the court’s briefs on the side of New York, saying, the special master blew it. In essence, the court, several of the justices on that front said you’re going to have a hard time getting us to second guess the special master.

On the other hand, New Jersey lost one little thing in the special master’s recommendations after saying that as a matter of historic right, New York only had three acres, he said, well, I’m going to give them five acres because we ought to keep the building in one piece because little pieces of it shouldn’t break off and go into New Jersey, the historic building, and we shouldn’t have any–you know, we should make sure that New York’s ferry landing is connected by a strip of land New York owns to the building. There was a substantial argument by New Jersey there, which the court seemed sympathetic to, or at least some of the justices, that the court’s power is limited to declaring what the boundary is. And they can’t adjust it for practical and convenient reasons thereafter.

MARGARET WARNER: So it’s either that you accept that the boundary was as they said in 1834, or you don’t, is what the court said?

STUART TAYLOR: Yes. There’s lots of room for arguing about what it was in 1834, but once that argument’s over, that’s it, except–there’s always an "except"–there’s a doctrine called "prescription and acquiescence."

MARGARET WARNER: I hate to say it, but that’s it for us. Thanks, Stuart.

STUART TAYLOR: Thank you.

The post Online NewsHour: Ellis Island Dispute – January 12, 1998 appeared first on Stuart Taylor, Jr..