EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. WYOMING ET AL.
No. 81-554
SUPREME COURT OF THE UNITED STATES
Argued October 5, 1982—Decided March 2, 1983
460 U.S. 226
Solicitor General Lee argued the cause for appellant. With him on the briefs were Deputy Solicitor General Wallace, George W. Jones, Michael J. Connolly, Philip B. Sklover, and Vella M. Fink.
Bruce A. Salzburg, Senior Assistant Attorney General of Wyoming, argued the cause for appellees. With him on the briefs was Steven F. Freudenthal, Attorney General.*
*Steven J. Cole and Richard Kirschner filed a brief for the American Federation of State, County and Municipal Employees, AFL-CIO, as amicus curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for the State of Alabama et al. by Charles A. Graddick, Attorney General of Alabama, and
Under the Age Discrimination in Employment Act of 1967,
I
Efforts in Congress to prohibit arbitrary age discrimination date back at least to the 1950‘s.2 During floor debate over what was to become
In 1966, Congress directed the Secretary of Labor to submit specific legislative proposals for prohibiting age discrimination.
The report of the Secretary of Labor, whose findings were confirmed throughout the extensive factfinding undertaken
The product of the process of factfinding and deliberation formally begun in 1964 was the Age Discrimination in Employment Act of 1967. The preamble to the Act emphasized both the individual and social costs of age discrimination.3
The ADEA, as originally passed in 1967, did not apply to the Federal Government, to the States or their political subdivisions, or to employers with fewer than 25 employees. In a Report issued in 1973, a Senate Committee found this gap in coverage to be serious, and commented that “[t]here is ... evidence that, like the corporate world, government managers also create an environment where young is somehow better than old.” Senate Special Committee on Aging, Improving the Age Discrimination Law, 93d Cong., 1st Sess., 14 (Comm. Print 1973), Legislative History 231. In 1974, Congress extended the substantive prohibitions of the Act to employers having at least 20 workers, and to the Federal and State Governments.5
Prior to the District Court decision in this case, every federal court that considered the question upheld the constitutionality of the 1974 extension of the Age Discrimination in Employment Act to state and local workers as an exercise of Congress’ power under either the Commerce Clause or § 5 of the Fourteenth Amendment.6
This case arose out of the involuntary retirement at age 55 of Bill Crump, a District Game Division supervisor for the Wyoming Game and Fish Department. Crump‘s dismissal was based on a Wyoming statute that conditions further employment for Game and Fish Wardens who reach the age of 55 on “the approval of [their] employer.”7 Crump filed a
The District Court, upon a motion by the defendants, dismissed the suit. It held that the Age Discrimination in Employment Act violated the doctrine of Tenth Amendment immunity articulated in National League of Cities v. Usery, 426 U. S. 833 (1976), at least insofar as it regulated Wyoming‘s employment relationship with its game wardens and other law enforcement officials. 514 F. Supp., at 600. The District Court also held, citing Pennhurst State School and Hospital v. Halderman, 451 U. S. 1 (1981), that the application of the ADEA to the States could not be justified as an exercise of Congress’ power under § 5 of the Fourteenth Amendment because Congress did not explicitly state that it invoked that power in passing the 1974 amendments. 514 F. Supp., at 600.
III
The appellees have not claimed either in the District Court or in this Court that Congress exceeded the scope of its affirmative grant of power under the Commerce Clause8 in enacting the ADEA. See generally National League of Cities v. Usery, supra, at 840-841; Heart of Atlanta Motel, Inc. v. United States, 379 U. S. 241, 243-244 (1964).
A
National League of Cities v. Usery struck down Congress’ attempt to extend the wage and hour provisions of the Fair Labor Standards Act to state and local governments. National League of Cities was grounded on a concern that the imposition of certain federal regulations on state governments might, if left unchecked, “allow ‘the National Government [to] devour the essentials of state sovereignty,‘” 426 U. S., at 855 (quoting Maryland v. Wirtz, 392 U. S. 183, 205 (1968) (Douglas, J., dissenting)). It therefore drew from the Tenth Amendment an “affirmative limitation on the exercise of [congressional power under the Commerce Clause] akin to other commerce power affirmative limitations contained in the Constitution.” 426 U. S., at 841. The principle of immunity articulated in National League of Cities is a functional doctrine, however, whose ultimate purpose is not to create a sacred province of state autonomy, but to ensure that the unique benefits of a federal system in which the States enjoy a “‘separate and independent existence,‘” id., at 845 (quoting Lane County v. Oregon, 7 Wall. 71, 76 (1869)), not be lost through undue federal interference in certain core state functions. See FERC v. Mississippi, 456 U. S. 742, 765-766 (1982); United Transportation Union v. Long Island R. Co., 455 U. S. 678, 686-687 (1982); Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U. S. 264, 286-288 (1981).9
Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., supra, summarized the hurdles that confront any claim
“[I]n order to succeed, a claim that congressional commerce power legislation is invalid under the reasoning of National League of Cities must satisfy each of three requirements. First, there must be a showing that the challenged statute regulates the ‘States as States.’ Second, the federal regulation must address matters that are indisputably ‘attribute[s] of state sovereignty.’ And third, it must be apparent that the States’ compliance with the federal law would directly impair their ability ‘to structure integral operations in areas of traditional governmental functions.‘” 452 U. S., at 287-288 (citations omitted; emphasis in original).
Moreover,
“Demonstrating that these three requirements are met does not ... guarantee that a Tenth Amendment challenge to congressional commerce power action will succeed. There are situations in which the nature of the federal interest advanced may be such that it justifies state submission.” Id., at 288, n. 29 (citations omitted).
See also United Transportation Union v. Long Island R. Co., supra, at 684, and n. 9. The first requirement—that the challenged federal statute regulate the “States as States“—is plainly met in this case.10 The second requirement—that
B
The management of state parks is clearly a traditional state function. National League of Cities, 426 U. S., at 851. As we have already emphasized, however, the purpose of the doctrine of immunity articulated in National League of Cities was to protect States from federal intrusions that might threaten their “separate and independent existence.” Ibid. Our decision as to whether the federal law at issue here directly impairs the States’ ability to structure their integral operations must therefore depend, as it did in National League of Cities itself, on considerations of degree. See id., at 845, 852; FERC v. Mississippi, 456 U. S., at 769-770. We conclude that the degree of federal intrusion in this case is sufficiently less serious than it was in National League of Cities so as to make it unnecessary for us to override Congress’ express choice to extend its regulatory authority to the States.
In this case, appellees claim no substantial stake in their retirement policy other than “assur[ing] the physical preparedness of Wyoming game wardens to perform their duties.” Brief for Appellees 18.13 Under the ADEA, however, the State may still, at the very least, assess the fitness of its game wardens and dismiss those wardens whom it reasonably finds to be unfit. Put another way, the Act requires the State to achieve its goals in a more individualized and careful manner than would otherwise be the case, but it does not require the State to abandon those goals, or to abandon the public policy decisions underlying them. FERC v. Mississippi, supra, at 771; cf. n. 11, supra.
Finally, the Court‘s concern in National League of Cities was not only with the effect of the federal regulatory scheme on the particular decisions it was purporting to regulate, but also with the potential impact of that scheme on the States’ ability to structure operations and set priorities over a wide range of decisions. 426 U. S., at 849-850.14 Indeed, National League of Cities spelled out in some detail how application of the federal wage and hour statute to the States threatened a virtual chain reaction of substantial and almost certainly unintended consequential effects on state decisionmaking. Id., at 846-852. Nothing in this case, however, portends anything like the same wide-ranging and profound threat to the structure of state governance.
The most tangible consequential effect identified in National League of Cities was financial: forcing the States to pay their workers a minimum wage and an overtime rate would leave them with less money for other vital state programs. The test of such financial effect as drawn in National League of Cities does not depend, however, on “particularized assessments of actual impact,” which may vary from State to State and time to time, but on a more generalized inquiry, essentially legal rather than factual, into the direct and obvious effect of the federal legislation on the ability of the States to allocate their resources. Id., at 851-852; see
The second consequential effect identified in National League of Cities was on the States’ ability to use their employment relationship with their citizens as a tool for pursuing social and economic policies beyond their immediate managerial goals. See, e. g., 426 U. S., at 848 (offering jobs at below the minimum wage to persons who do not possess “minimum employment requirements“). Appellees, however, have claimed no such purposes for Wyoming‘s involuntary retirement statute. Moreover, whatever broader social or economic purposes could be imagined for this particular Wyoming statute would not, we are convinced, bring with them either the breadth or the importance of the state policies identified in National League of Cities.17
The extension of the ADEA to cover state and local governments, both on its face and as applied in this case, was a valid exercise of Congress’ powers under the Commerce Clause. We need not decide whether it could also be upheld as an exercise of Congress’ powers under § 5 of the Fourteenth Amendment.18 The judgment of the District Court is
So ordered.
JUSTICE STEVENS, concurring.
While I join the Court‘s opinion, a complete explanation of my appraisal of the case requires these additional comments about the larger perspective in which I view the underlying issues.
I
In final analysis, we are construing the scope of the power granted to Congress by the Commerce Clause of the Constitution. It is important to remember that this Clause was the Framers’ response to the central problem that gave rise to the Constitution itself. As I have previously noted, Justice Rutledge described the origins and purpose of the Commerce Clause in these words:
“If any liberties may be held more basic than others, they are the great and indispensable democratic freedoms secured by the First Amendment. But it was not
“As evils are wont to do, they dictated the character and scope of their own remedy. This lay specifically in the commerce clause. No prohibition of trade barriers as among the states could have been effective of its own force or by trade agreements. It had become apparent that such treaties were too difficult to negotiate and the process of securing them was too complex for this method to give the needed relief. Power adequate to make and enforce the prohibition was required. Hence, the necessity for creating an entirely new scheme of government.
“... So by a stroke as bold as it proved successful, they founded a nation, although they had set out only to find a way to reduce trade restrictions. So also they solved the particular problem causative of their historic action, by introducing the commerce clause in the new structure of power.” W. Rutledge, A Declaration of Legal Faith 25-26 (1947), quoted in United States v. Stasczuk, 517 F. 2d 53, 58 (CA7) (en banc), cert. denied, 423 U. S. 837 (1975).1
In the statutes challenged in this case and in National League of Cities v. Usery, 426 U.S. 833 (1976), Congress exercised its power to regulate the American labor market. There was a time when this Court would have denied that Congress had any such power,5 but that chapter in our judi
Congress may not, of course, transcend specific limitations on its exercise of the commerce power that are imposed by other provisions of the Constitution. But there is no limitation in the text of the Constitution that is even arguably applicable to this case. The only basis for questioning the federal statute at issue here is the pure judicial fiat found in this Court‘s opinion in National League of Cities v. Usery. Neither the
II
My conviction that Congress had ample power to enact this statute, as well as the statute at issue in National League of Cities, is unrelated to my views about the merits of either piece of legislation. As I intimated in my dissent in that case, I believe that federal regulation that enhances the minimum price of labor inevitably reduces the number of jobs available to people who are ready, willing, and able to engage in productive work—and thereby aggravates rather than ameliorates our unemployment problems. I also believe, contrary to the popular view, that the burdens imposed on the national economy by legislative prohibitions against mandatory retirement on account of age exceed the potential benefits. My personal views on such matters are, however, totally irrelevant to the judicial task I am obligated to perform. There is nothing novel about this point—it has been made repeatedly by more learned and more experienced judges.9 But it is important to emphasize this obvious limit on the proper exercise of judicial power, one that is sometimes overlooked by those who criticize our work product.
The question in this case is purely one of constitutional power. In exercising its power to regulate the national mar
CHIEF JUSTICE BURGER, with whom JUSTICE POWELL, JUSTICE REHNQUIST, and JUSTICE O‘CONNOR join, dissenting.
The Court decides today that Congress may dictate to the states, and their political subdivisions, detailed standards governing the selection of state employees, including those charged with protecting people and homes from crimes and fires. Although the opinion reads the Constitution to allow Congress to usurp this fundamental state function, I have re-examined that document and I fail to see where it grants to the National Government the power to impose such strictures on the states either expressly or by implication. Those strictures are not required by any holding of this Court, and it is not wholly without significance that Congress has not placed similar limits on itself in the exercise of its own sovereign powers. Accordingly, I would hold the Age Discrimination in Employment Act (Age Act) unconstitutional as applied to the states, and affirm the judgment of the District Court.
I
I begin by analyzing the Commerce Clause rationale, for it was upon this power that Congress expressly relied when it originally enacted the Age Act in 1967, see
“First, there must be a showing that the challenged statute regulates the ‘States as States.’ [National League of Cities, 426 U.S.], at 854. Second, the federal regulation must address matters that are indisputably ‘attribute[s] of state sovereignty.’ Id., at 845. And third, it must be apparent that the States’ compliance with the federal law would directly impair their ability ‘to structure integral operations in areas of traditional governmental functions.’ Id., at 852.” Hodel, 452 U.S., at 287-288.
For statutes that meet each prong of this test, a final inquiry must be made to decide whether “the federal interest advanced [is] such that it justifies state submission.” Id., at 288, n. 29, citing Fry v. United States, 421 U.S. 542 (1975); National League of Cities, supra, at 856 (BLACKMUN, J., concurring).
We need not pause on the first prong of this test, for the legislation is indisputably aimed at regulating the states in their capacity as states,
To decide whether a challenged activity is an attribute of sovereignty, it is instructive to inquire whether other government entities have attempted to enact similar legislation. A finding that other governmental units have passed mandatory retirement laws, although not conclusive, is persuasive evidence that such laws are traditional methods for insuring an efficient work force for certain governmental functions. My research indicates that more than one-half the states have retirement laws that, like the Wyoming State Highway Patrol and Game and Fish Warden Retirement Act, violate the Age Act.2 More important, Congress, while mandating
It is beyond dispute that the statute can give rise to increased employment costs caused by forced employment of older individuals. Since these employees tend to be at the upper end of the pay scale, the cost of their wages while they are still in the work force is greater. And since most pension plans calculate retirement benefits on the basis of maximum salary or number of years of service, pension costs are greater when an older employee retires.4 The employer is also forced to pay more for insuring the health of older employees because, as a group, they inevitably carry a higher-than-average risk of illness. See, e. g., Pollock, Gettman, & Meyer, Analysis of Physical Fitness and Coronary Heart Disease Risk of Dallas Area Police Officers, 20 J. Occup. Med. 393 (1978); N. Shock, Cardiac Performance and Age, in Cardiovascular Problems, Perspectives and Progress 3-24 (H. Russek ed. 1976); J. Hall & J. Zwemer, Prospective Medicine (2d ed. 1979). Since they are—especially in law enforce
Noneconomic hardships are equally severe. Employers are prevented from hiring those physically best able to do the job. Since older workers occupy a disproportionate share of the upper-level and supervisory positions, a bar on mandatory retirement also impedes promotion opportunities. Lack of such opportunities tends to undermine younger employees’ incentive to strive for excellence, and impedes the state from fulfilling affirmative-action objectives.
The Federal Government can hardly claim that the objectives of decreasing costs and increasing promotional opportunities are impermissible: many of the same goals are cited repeatedly to justify the “enclaves” of federal exceptions to the Age Act. For example, mandatory retirement is still the rule in the Armed Services,
I reject the notion that this exception ameliorates the State‘s problem to any significant extent. The reality is that, for Wyoming to benefit from this exception, it will have to enact new laws and develop new regulations to reduce its insurance coverage on older employees. Drafting and enacting these new laws is a burden Congress has no power to impose on the states. Second, it is doubtful that Wyoming could, as a practical matter, lower the health and disability insurance coverage on employees who fall under mandatory retirement laws. It is these employees who are, for the most part, in the most physically hazardous occupations, and thus most need protection. Stated another way, perhaps Crump would not want to keep his job if the State were unwilling to bear the economic risks of his injuries. Section 623(f)(2) is thus a shallow alternative to mandatory retirement.
Section 623(f)(1), the Commission‘s answer to the problem of protecting the State‘s ability to deliver its services effectively, provides no solution either. That section provides that mandatory early retirement is permissible “where age is a bona fide occupational qualification [BFOQ] reasonably necessary to the normal operation of the particular business. . . .” Although superficially, this section appears to offer the states a means for lessening the administrative burden of retiring unfit employees on a case-by-case basis, the exception does not work in practice. In the absence of statutory guidelines, the courts that have faced the question have—in response to this appellant‘s urgings—established a
“(1) that the bfoq which it invokes is reasonably necessary to the essence of its business . . . , and (2) that the employer has reasonable cause, i. e., a factual basis for believing that all or substantially all persons within the class . . . would be unable to perform safely and efficiently the duties of the job involved, or that it is impossible or impractical to deal with persons over the age limit on an individualized basis.”
See also Usery v. Tamiami Trail Tours, Inc., 531 F.2d 224 (CA5 1976). Given the state of modern medicine, it is virtually impossible to prove that all persons within a class are unable to perform a particular job or that it is impossible to test employees on an individual basis, see, e. g., Johnson v. Mayor of Baltimore, 515 F. Supp. 1287, 1299 (Md. 1981), cert. denied, 455 U.S. 944 (1982).
In the face of this track record, I find it impossible to say that § 623(f)(1) provides an adequate method for avoiding significant impairment to the state‘s ability to structure its integral governmental operations.5
Since I am satisfied that the Age Act runs afoul of the three prongs of the National League of Cities test, I turn to the balancing test alluded to in JUSTICE BLACKMUN‘s concurring opinion in National League of Cities, and in Hodel. The Commission argues that the federal interest in preventing unnecessary demands on the social security system and other maintenance programs, in protecting employees from arbitrary discrimination, and in eliminating unnecessary burdens on the free flow of commerce “is more than sufficient in the
It is simply not accurate to state that Wyoming is resting its challenge to the Age Act on a “sovereign” right to discriminate; as I read it, Wyoming is asserting a right to set standards to meet local needs. Nor do I believe that these largely theoretical benefits to the Federal Government outweigh the very real danger that a fire may burn out of control because the firefighters are not physically able to cope; or that a criminal may escape because a law enforcement officer‘s reflexes are too slow to react swiftly enough to apprehend an offender; or that an officer may be injured or killed for want of capacity to defend himself. These factors may not be real to Congress but it is not Congress’ responsibility to prevent them; they are nonetheless real to the states. I would hold that Commerce Clause powers are wholly insufficient to bar the states from dealing with or preventing these dangers in a rational manner. Wyoming‘s solution is plainly a rational means.
II
Since it was ratified after the
The outer reaches of congressional power under the Civil War Amendments have always been uncertain. One factor
In Murgia, we found that early retirement of policemen was justified by the states’ objective of “protect[ing] the public by assuring physical preparedness of its uniformed police,” 427 U.S., at 314; in Bradley, we held that early retirement of Foreign Service personnel was justified by Congress’ perception of a need to assure “opportunities for promotion would be available” and “the high quality of those occupying positions critical to the conduct of our foreign relations,” and in order to “minimiz[e] the risk of less than superior performance by reason of poor health or loss of vitality,” 440 U.S., at 101 and 103-104. Congress was simply using a rational means for solving a practical governmental problem within its constitutional jurisdiction.
Were we asked to review the constitutionality of the Wyoming State Highway Patrol and Game and Fish Warden Re-
Nor can appellant claim that Congress has used the powers we recognized in City of Rome v. United States, 446 U.S. 156, 176-177 (1980); Oregon v. Mitchell, 400 U.S. 112 (1970); Jones v. Alfred H. Mayer Co., 392 U.S. 409, 437-444 (1968); South Carolina v. Katzenbach, 383 U.S. 301 (1966); and Katzenbach v. Morgan, 384 U.S. 641 (1966), to enact legislation that prohibits conduct not in itself unconstitutional because it considered the prohibition necessary to guard against encroachment of guaranteed rights or to rectify past discrimination. There has been no finding, as there was in South Carolina v. Katzenbach, supra, at 309, that the abrogated state law infringed on rights identified by this Court.7
Allowing Congress to protect constitutional rights statutorily that it has independently defined fundamentally alters our scheme of government. Although the South Carolina v. Katzenbach line of cases may be read to allow Congress a degree of flexibility in deciding what the
For me, this same reasoning leads inevitably to the conclusion that Congress lacked power to apply the Age Act to the states. There is no hint in the body of the Constitution ratified in 1789 or in the relevant Amendments that every classification based on age is outlawed. Yet there is much in the Constitution and the relevant Amendments to indicate that states retain sovereign powers not expressly surrendered, and these surely include the power to choose the employees they feel are best able to serve and protect their citizens.8
And even were we to assume, arguendo, that Congress could redefine the Fourteenth Amendment, I would still reject the power of Congress to impose the Age Act on the states when Congress, in the same year that the Age Act was extended to the states, passed mandatory retirement legislation of its own, Pub. L. 93-350, 88 Stat. 356, codified at
I believe I have demonstrated that neither the Constitution nor any of its Amendments have transferred from the states to the Federal Government the essentially local function of establishing standards for choosing state employees. The Framers did not give Congress the power to decide local employment standards because they wisely realized that as a body, Congress lacked the means to analyze the factors that bear on this decision, such as the diversity of occupational risks, climate, geography, and demography. Since local conditions generally determine how a job should be performed, and who should perform it, the authority and responsibility for making employment decisions must be in the hands of local governments, subject only to those restrictions unmistakably contemplated by the Fourteenth Amendment. Intrusion by Congress into this area can lead only to ill-informed decisionmaking.
And even if Congress had infinite factfinding means at its disposal, conditions in various parts of the country are too diverse to be susceptible to a uniformly applicable solution. Wyoming is a State with large sparsely populated areas, where law enforcement often requires substantial physical stamina; the same conditions are not always encountered by law enforcement officers in Rhode Island, which has far less land area, no mountains, and no wilderness. Problems confronting law enforcement officers in Alaska or Maine may be unlike those encountered in Hawaii and Florida. Barring states from making employment decisions tailored to meet specific local needs undermines the flexibility that has long allowed industrial states to live under the same flag as rural states, and small, densely populated states to coexist with large, sparsely populated ones.
The reserved powers of the states and Justice Brandeis’ classic conception of the states as laboratories, New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting), are turned on their heads when national rather than state governments assert the authority to make decisions on
JUSTICE POWELL, with whom JUSTICE O‘CONNOR joins, dissenting.
I join THE CHIEF JUSTICE‘S dissenting opinion, but write separately to record a personal dissent from JUSTICE STEVENS’ novel view of our Nation‘s history.
I
JUSTICE STEVENS begins his concurring opinion with the startling observation that the Commerce Clause “was the Framers’ response to the central problem that gave rise to the Constitution itself.” Ante, at 244 (emphasis added). At a subsequent point in his opinion, he observes that “this Court has construed the Commerce Clause to reflect the intent of the Framers . . . to confer a power on the National Government adequate to discharge its central mission.” Ante, at 246-247 (emphasis added).1 JUSTICE STEVENS further states that ”National League of Cities not only was incorrectly decided, but also is inconsistent with the central purpose of the Constitution itself. . . .” Ante, at 249 (emphasis added).
No one would deny that removing trade barriers between the States was one of the Constitution‘s purposes. I sug-
It is true, of course, that this Court properly has construed the Commerce Clause, and extended its reach, to accommodate the unanticipated and unimaginable changes, particularly in transportation and communication, that have occurred in our country since the Constitution was ratified. If JUSTICE STEVENS had written that the Founders’ intent in adopting the Commerce Clause nearly two centuries ago is of little relevance to the world in which we live today, I would not have disagreed. But his concurring opinion purports to rely on their intent. Ante, at 246. I therefore write—briefly, in view of the scope of the subject—to place the Commerce Clause in proper historical perspective, and further to suggest that even today federalism is not, as JUSTICE STEVENS appears to believe, utterly subservient to that Clause.
II
The Constitution‘s central purpose was, as the name implies, to constitute a government. The most important provisions, therefore, are those in the first three Articles relating to the establishment of that government. The system of checks and balances, for example, is far more central to the larger perspective than any single power conferred on any branch. Indeed, the Virginia Plan, the initial proposal from which the entire Convention began its work, focuses on the
Apart from the framework of government itself, the Founders stated their motivating purposes in the Preamble to the Constitution:
“to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty . . . .”
These purposes differ little from the concerns motivating the States in the Articles of Confederation: “their common defence, the security of their liberties, and their mutual and general welfare.” Art. III. Although the “general Welfare” recognized by the Constitution could embrace the free flow of trade among States (despite the fact that the same language in the Articles of Confederation did not), it is clear that security “against foreign invasion [and] against dissen-
The power to achieve the purposes identified in the Preamble was not delegated solely to Congress. If, however, one looks at the powers that were so delegated, the position of the Commerce Clause hardly suggests that it was the “central” concern of the patriots who formed our Union. The enumeration of powers in
III
One would never know from the concurring opinion that the Constitution formed a federal system, comprising a Na-
A
The Bill of Rights imposes express limitations on national powers. The
It was also clear from the contemporary debates that the Founding Fathers intended the Constitution to establish a federal system. As James Madison, “the Father of the Constitution,” explained to the people of New York:
“The powers delegated by the proposed Constitution to the Federal Government, are few and defined. Those which are to remain in the State Governments are numerous and indefinite. The former will be exercised
principally on external objects, as war, peace, negociation, and foreign commerce . . . . The powers reserved to the several States will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people; and the internal order, improvement, and prosperity of the State.” The Federalist No. 45, p. 313 (J. Cooke ed. 1961).
There can be no doubt that Madison‘s contemporaries shared this view. See, e. g., Letter of Roger Sherman and Oliver Ellsworth to the Governor of Connecticut (Sept. 26, 1787), reprinted in 3 Farrand, supra n. 2, at 99 (description of proposed Constitution) (The “powers [vested in Congress] extend only to matters respecting the common interests of the union, and are specially defined, so that the particular states retain their sovereignty in all other matters“).
During the earliest years of our constitutional development, principles of federalism were not only well recognized, they formed the basis for virtually every State in the Union to assert its rights as a State against the Federal Government. In 1798, for example, Thomas Jefferson drafted the Kentucky Resolutions,7 which were passed by the Kentucky Legislature to protest the unpopular Alien and Sedition Acts,
The view that the reserved powers of the States limited the delegated powers of the National Government was not confined to the South. The New England States, for example, vehemently opposed the
B
It is clear beyond question that state sovereignty always has been a basic assumption of American political theory. Although its contours have changed over two centuries, state sovereignty remains a fundamental component of our system that this Court has recognized time and time again. Even to
In sum, all of the evidence reminds us of the importance of the principles of federalism in our constitutional system. The Founding Fathers, and those who participated in the earliest phases of constitutional development, understood the States’ reserved powers to be a limitation on the power of Congress—including its power under the Commerce Clause. And the Court has recognized and accepted this fact for almost 200 years.13
IV
JUSTICE STEVENS’ concurring opinion recognizes no limitation on the ability of Congress to override state sovereignty in exercising its powers under the Commerce Clause. His opinion does not mention explicitly either federalism or state sovereignty. Instead it declares that “[t]he only basis for questioning the federal statute at issue here is the pure judicial fiat found in this Court‘s opinion in National League of Cities v. Usery.” Ante, at 248 (emphasis added). Under this view it is not easy to think of any state function—however sovereign—that could not be pre-empted.
Notes
“The Constitutional Convention was called because the Articles of Confederation had not given the Federal Government any power to regulate commerce. This defect proved to be so serious that the Virginia General Assembly appointed commissioners to meet with commissioners of other
The Age Act was extended to the states along with the Fair Labor Standards Act. Pub. L. 93-259, § 28, 88 Stat. 74. Extension of the FLSA was declared unconstitutional in National League of Cities v. Usery, 426 U.S. 833 (1976).
The authority on which JUSTICE STEVENS primarily relies is an extrajudicial lecture delivered by Justice Rutledge in 1946. Ante, at 244-245. Justice Rutledge declared that the “proximate cause of our national existence” was not the desire to assure the great “democratic freedoms“; rather it was the need “to secure freedom of trade” within the former Colonies. W. Rutledge, A Declaration of Legal Faith 25 (1947).
See, e. g., Kidd v. Pearson, 128 U.S. 1, 20-21 (1888) (manufacturing is not subject to the commerce power of Congress); United States v. E. C. Knight Co., 156 U.S. 1, 12-16 (1895) (monopoly in manufacturing is not subject to the commerce power); Adair v. United States, 208 U.S. 161, 178-179 (1908) (connection between interstate commerce and membership in a labor union insufficient to authorize Congress to make it a crime for an interstate carrier to discharge an employee because of union membership); Hammer v. Dagenhart, 247 U.S. 251, 276 (1918) (Congress has no power to prohibit interstate transportation of goods produced with child labor); Carter v. Carter Coal Co., 298 U.S. 238, 308-310 (1936) (commerce power does not extend to regulation of wages, hours, and working conditions of coal miners).
See, e. g.,
“(1) in the face of rising productivity and affluence, older workers find themselves disadvantaged in their efforts to retain employment, and especially to regain employment when displaced from jobs;
“(2) the setting of arbitrary age limits regardless of potential for job performance has become a common practice, and certain otherwise desirable practices may work to the disadvantage of older persons; “(3) the incidence of unemployment, especially long-term unemployment with resultant deterioration of skill, morale, and employer acceptability is, relative to the younger ages, high among older workers; their numbers are great and growing; and their employment problems grave;
“(4) the existence in industries affecting commerce of arbitrary discrimination in employment because of age, burdens commerce and the free flow of goods in commerce.
“(b) It is therefore the purpose of this Act to promote employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment; to help employers and workers find ways of meeting problems arising from the impact of age on employment.”
Compare Stafford v. Wallace, 258 U.S. 495, 524-525 (1922), with Hopkins v. United States, 171 U.S. 578, 592-598 (1898); Virginian R. Co. v. Railway Employees, 300 U.S. 515, 557 (1937), with Employers’ Liability Cases, 207 U.S. 463, 498 (1908); Sunshine Coal Co. v. Adkins, 310 U.S. 381, 393-394 (1940), with Carter v. Carter Coal Co., supra, at 297-310; United States v. Darby, 312 U.S. 100, 115-117 (1941), with Hammer v. Dagenhart, supra, at 269-277; United States v. South-Eastern Underwriters Assn., 322 U.S. 533, 542-553 (1944), with New York Life Insurance Co. v. Deer Lodge County, 231 U.S. 495, 502-512 (1913); Mandeville Island Farms, Inc. v. American Crystal Sugar Co., 334 U.S. 219, 229-235 (1948), with United States v. E. C. Knight Co., supra, at 12-16.
This function was later transferred to the Equal Employment Opportunity Commission, see § 2 of the Reorg. Plan No. 1 of 1978, 3 CFR 321 (1979), 92 Stat. 3781,
“It shall be unlawful for an employer—
“(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual‘s age;
“(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual‘s age; or
“(3) to reduce the wage rate of any employee in order to comply with this Act.”
The Act has roughly parallel provisions covering employment agencies and labor organizations.
See, e. g., Wickard v. Filburn, 317 U.S. 111, 118-125 (1942) (Congress may constitutionally apply wheat marketing quota to wheat grown wholly for consumption on the farm, because of interdependence of national market); Mandeville Island Farms, Inc. v. American Crystal Sugar Co., supra, at 229-235 (Congress has power under Commerce Clause to prohibit price fixing by purchasers of beet sugar from growers in same State); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 249-262 (1964) (Congress may prohibit racial discrimination in places of public accommodation affecting commerce); Perez v. United States, 402 U.S. 146, 154-155 (1971) (Commerce Clause gives Congress power to regulate local loan sharking because it is in a class of activities that has an impact on interstate commerce).
This problem is exacerbated by the special retirement schemes often used in connection with mandatory early retirement laws. In Wyoming, for example, state employees who are not subject to early retirement contribute less per month towards retirement than those in occupations where early retirement is required. So long as the early retirement laws are in effect, this system is actuarily sound because the employees who will spend less years at work pay into the system more rapidly. Simple invalidation of the early retirement system would work an inequity by requiring these workers to contribute more towards retirement than other state employees. Brief for Appellees 12, n. 5. Of course, Wyoming could revamp its pension system to correct this problem. Forcing the State to do so is another example of the adverse impact wrought by the Age Act.
A major weakness of the system created by the Articles of Confederation was the central government‘s inability to collect taxes directly. See 1 Farrand, supra n. 2, at 284 (remarks of A. Hamilton). Remedying this defect was thus one of the most important purposes of the Constitutional Convention. See R. Paul, Taxation in the United States 4-5 (1954); The Federalist No. 30 (A. Hamilton).See, e. g., Employers’ Liability Cases, supra, at 496-499; Adair v. United States, supra, at 176-180; Hammer v. Dagenhart, supra, at 271-275; Carter v. Carter Coal Co., supra, at 303-304.
In addition, states that choose to invoke the BFOQ exception expose themselves to lawsuits requiring them to defend their choices. Defense of lawsuits is a costly and time-consuming endeavor that is, in itself, a burden impermissible for Congress to impose on the states.
JUSTICE STEVENS’ citation of Gibbons v. Ogden, 9 Wheat. 1 (1824), in support of his position, see ante, at 248-249, n. 8, is essentially irrelevant, for Chief Justice Marshall was not concerned with a State‘s sovereign power. Gibbons carried passengers between New Jersey and New York on two steamboats licensed under an Act of Congress, while Ogden claimed the benefit of a New York law granting an exclusive right to navigate steamboats on New York waters. The power to grant such a monopoly clearly is not one of a State‘s traditional sovereign powers. On the contrary, it is part of the power to regulate interstate navigation that lies within the very core of the Commerce Clause. I certainly do not suggest that principles of federalism should prevent Congress from regulating navigation. The present case, however, concerns the power to determine the terms and conditions of employment for the officers and employees who constitute a State‘s government. This is as sovereign a power as any that a State possesses, and it is far removed from the original concerns of the Commerce Clause. Indeed, this case illustrates how far the Federal Government, with the Court‘s approval, has departed from the principles upon which our federal union was formed. The “commerce” at issue, incredible as it would have seemed even a few years ago, let alone in Chief Justice Marshall‘s day, is the effect on trade among the States of Wyoming‘s requirement that its game wardens retire at age 65 rather than 70.Since the District Court decision in this case, two other District Court opinions have followed its lead, Campbell v. Connelie, 542 F. Supp. 275, 280 (NDNY 1982); Taylor v. Montana Department of Fish & Game, 523 F. Supp. 514, 515 (Mont. 1981), but at least two Court of Appeals and eight District Court opinions have declined to do so, see EEOC v. County of Calumet, 686 F. 2d 1249, 1251-1253 (CA7 1982); EEOC v. Elrod, 674 F. 2d 601, 603-612 (CA7 1982); McCroan v. Bailey, 543 F. Supp. 1201, 1205-1207 (SD Ga. 1982); Kenny v. Valley County School District, 543 F. Supp. 1194, 1196-1199 (Mont. 1982); EEOC v. Minneapolis, 537 F. Supp. 750, 756 (Minn. 1982); Bleakley v. Jekyll Island—State Park Auth., 536 F. Supp. 236, 240 (SD Ga. 1982); EEOC v. County of Los Angeles, 531 F. Supp. 122, 124 (CD Cal. 1982); EEOC v. County of Los Angeles, 526 F. Supp. 1135, 1137-1138 (CD Cal. 1981); Adams v. James, 526 F. Supp. 80, 84 (MD Ala. 1981); Johnson v. Mayor of Baltimore, 515 F. Supp. 1287, 1292 (Md. 1981).
See United States v. Darby, supra, at 113-124.
The ability of Congress to define independently protected classes is an issue that need not be resolved here because I think that the Age Act is unconstitutional even if it is assumed that Congress has this power.
Alexander Hamilton, for example, made this argument in The Federalist No. 84, pp. 578-579 (J. Cooke ed. 1961). See also United States v. Darby, 312 U. S. 100, 124 (1941) (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
At oral argument, the Solicitor General argued that in applying the rational-basis test in Murgia and Bradley, the Court sub silentio agreed that age discrimination is protected by the
This, of course, is not an original observation. See Chief Justice Marshall‘s opinion for the Court in Gibbons v. Ogden, 9 Wheat. 1, 196-197 (1824): “It is the power to regulate; that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution. These are expressed in plain terms, and do not affect the questions which arise in this case, or which have been discussed at the bar. If, as has always been understood, the sovereignty of congress, though limited to specified objects, is plenary as to those objects, the power over commerce with foreign nations, and among the several States, is vested in congress as absolutely as it would be in a single government, having in its constitution the same restrictions on the exercise of the power as are found in the constitution of the United States. The wisdom and the discretion of Congress, their identity with the people, and the influence which their constituents possess at elections, are, in this, as in many other instances, . . . the sole restraints on which they have relied, to secure them from its abuse. They are the restraints on which the people must often rely solely, in all representative governments.” These words carry special weight in view of the fact that, more than 35 years earlier, Chief Justice Marshall had been a delegate at the Virginia ratifying convention and had participated in the crucial debates regarding the proposed Constitution. He was thus fully conscious of the dramatic contrast between the Articles of Confederation, which had declared explicitly that “[e]ach State retains its sovereignty, freedom, and independence,” Art. 2, and the new Constitution, which contained not a word respecting the sovereignty, freedom, and independence of the States, but rather conveyed an unequivocal message in the Supremacy Clause, Art. VI, cl. 2. The role of the States in the Confederation was repeatedly contrasted with their role in the proposed Constitution, both by supporters and by opponents of ratification. See 3 J. Elliot, Debates on the Federal Constitution 129 (1891 ed.) (James Madison, speaking in support: “A government which relies on thirteen independent sovereignties for the means of its existence, is a solecism in theory and a mere nullity in practice. . . . The effect, sir, cannot be changed without a removal of the cause“); id., at 22 (Patrick Henry, speaking in opposition: “Who authorized them to speak the language of, We, the people, instead of, We, the states? States are the characteristics and the soul of a confederation. If the states be not the agents of this compact, it must be one great, consolidated, national government, of the people of all the states“). The question of authority, of course, was resolved by the ratification.
It has been suggested that where a congressional resolution of a policy question hinges on legislative facts, the Court should defer to Congress’ judgment because Congress is in a better position than the Court to find the relevant facts. Cox, The Role of Congress in Constitutional Determinations, 40 U. Cin. L. Rev. 187, 229-230 (1971). While this theory may have some importance in matters of strictly federal concern, it has no place in deciding between the legislative judgments of Congress and that of the Wyoming Legislature. Congress is simply not as well equipped as state legislators to make decisions involving purely local needs.
In referring to this early and interesting history, I do not suggest that either the doctrine of interposition or that of nullification was constitutionally sound. In any event, they were laid to rest in one of history‘s bloodiest fratricides, ending at Appomattox in 1865. The views of these great figures in our history are, however, directly pertinent to the question whether there was ever any intention that the Commerce Clause would empower the Federal Government to intrude expansively upon the sovereign powers reserved to the States. See n. 5, supra.See, e. g., Spencer v. Texas, 385 U.S. 554, 569 (1967) (Stewart, J., concurring); Adair v. United States, 208 U.S., at 191-192 (Holmes, J., dissenting); Lochner v. New York, 198 U.S. 45, 75 (1905) (Holmes, J., dissenting).
The Governor explained to a special session of the state legislature that “[w]henever our national legislature is led to overleap the prescribed bounds of their [sic] constitutional powers, on the State Legislatures, in great emergencies, devolves the arduous task—it is their right—it becomes their duty, to interpose their protecting shield between the right and liberty of the people, and the assumed power of the General Government.” Speech of Governor Jonathan Trumbull (Feb. 23, 1809), reprinted in H. Ames, State Documents on Federal Relations 40 (1906). The Assembly promptly passed resolutions supporting the Governor‘s position and concluding that the embargo legislation was “incompatible with the constitution of the United States, and encroach[ed] upon the immunites of [the] State.” Resolutions of the General Assembly (Feb. 23, 1809), reprinted in Ames, supra, at 41. In view of its duty to support the Constitution, the legislature declined “to assist, or concur in giving effect to the aforesaid unconstitutional act, passed, to enforce the Embargo.” Ibid.“A wealth of precedent attests to congressional authority to displace or pre-empt state laws regulating private activity affecting interstate commerce when these laws conflict with federal law. ... Although such congressional enactments obviously curtail or prohibit the States’ prerogatives to make legislative choices respecting subjects the States may consider im- portant, the Supremacy Clause permits no other result.” 452 U. S., at 290 (emphasis added; citations omitted).
See also FERC v. Mississippi, 456 U. S. 742, 759 (1982). The legislature explained that the State‘s sovereignty was reserved, in part, to protect its citizens from excessive federal power. Resolutions of the Massachusetts Legislature (Feb. 22, 1814), reprinted in Ames, supra, at 71.
A State‘s employment relationship with its workers can, under certain circumstances, be one vehicle for the exercise of its core sovereign functions. In National League of Cities, for example, the power to determine the wages of government workers was tied, among other things, to the exercise of the States’ public welfare interest in providing jobs to persons who would otherwise be unemployed, id., at 848. Moreover, some employment decisions are so clearly connected to the execution of underlying sovereign choices that they must be assimilated into them for purposes of the Tenth Amendment. See id., at 850 (relating power to determine hours of government workers to unimpeded exercise of State‘s role as provider of emergency services). See generally id., at 851 (stressing importance of state autonomy as to “those fundamental employment decisions upon which their systems for performance of [their dual functions of administering the public law and furnishing public services] must rest“) (emphasis added). But we are not to be understood to suggest that every state employment decision aimed simply at advancing a generalized interest in efficient management—even the efficient management of traditional state functions—should be considered to be an exercise of an “undoubted attribute of state sovereignty.” During a debate in Congress on a conscription bill and a bill for the enlistment of minors, Webster declared that if these measures were enacted it would be “the solemn duty of the State Governments” to interpose their authority to prevent enforcement. In his view, this was “among the objects for which the State Governments exist.” Speech on the Conscription Bill (Dec. 9, 1814), reprinted in 14 The Writings and Speeches of Daniel Webster 55, 68 (1903).
“[i]t shall not be unlawful for an employer ... to observe the terms of a bona fide seniority system or any bona fide employee benefit plan such as a retirement, pension, or insurance plan, which is not a subterfuge to evade the purposes of [the] Act, except that no such employee benefit plan shall excuse the failure to hire any individual, and no such seniority system or employee benefit plan shall require or permit the involuntary retirement of any individual [between the ages of 40 and 70] because of the age of such individual.” (The last clause, relating to involuntary retirement, was added by the Age Discrimination in Employment Act Amendments of 1978,
As Senator Jacob Javits explained in 1967, the meaning of this provision is that an employer is not compelled “to afford to older workers exactly the same pension, retirement, or insurance benefits as he affords to younger workers.” 113 Cong. Rec. 31255 (1967), Legislative History 146. See H. R. Rep. No. 805, 90th Cong., 1st Sess., 4 (1967), Legislative History 77; 123 Cong. Rec. 34295 (1977) (remarks of Sen. Williams), Legislative History 482; 124 Cong. Rec. 8218-8219 (1978) (remarks of Sen. Javits), Legislative History 539-540.
It is in the nature of our review of congressional legislation defended on the basis of Congress’ powers under § 5 of the Fourteenth Amendment that we be able to discern some legislative purpose or factual predicate that supports the exercise of that power. That does not mean, however, that Congress need anywhere recite the words “section 5” or “Fourteenth Amendment” or “equal protection,” see, e. g., Fullilove v. Klutznick, 448 U. S. 448, 476-478 (1980) (BURGER, C. J.), for “[t]he constitutionality of action taken by Congress does not depend on recitals of the power which it undertakes to exercise.” Woods v. Cloyd W. Miller Co., 333 U. S. 138, 144 (1948).
Our task in Pennhurst State School and Hospital v. Halderman, supra, was to construe a statute, 451 U. S., at 15, not to adjudge its constitutional validity, see id., at 16, n. 12. The Court characterized the question before it as whether “Congress intend[ed a certain statute] to create enforceable rights and obligations.” Id., at 15. It then made the unremarkable statement, relied on by the District Court, that “we should not quickly attribute to Congress an unstated intent to act under its authority to enforce the Fourteenth Amendment.” Id., at 16. The rule of statutory construction invoked in Pennhurst was, like all rules of statutory construction, a tool with which to divine the meaning of otherwise ambiguous statutory intent. Here, there is no doubt what the intent of Congress was: to extend the application of the ADEA to the States. The observations in Pennhurst therefore simply have no relevance to the question of whether, in this case, Congress acted pursuant to its powers under § 5.