*1 ANTONIO METROPOLITAN GARCIA SAN AUTHORITY TRANSIT et al. Reargued Argued March October
No. 82-1913. February 19, Decided 1985* 82-1951, Donovan, Secretary * Together with No. Labor v. San al., Metropolitan Authority appeal Antonio Transit et from the also on same court. *2 J.,
Blackmun, opinion Court, delivered the in which Brennan, JJ., J., White, Marshall, joined. and Stevens, Powell, filed a dis- senting opinion, J., in which Rehnquist C. Burger, and and O’Connor, JJ., joined, post, p. J., dissenting opinion, 557. Rehnquist, post, filed a p. J., 579. O’Connor, dissenting opinion, filed a in which Powell and JJ., joined, post, p. 580. Rehnquist,
Solicitor General Lee the reargued cause and filed briefs on 82-1951. Assistant Attor- reargument for in No. appellant ney General Olson argued cause for both appellants cases on original him on the briefs on argument. With Attorney Assistant the original Lee, were Mr. argument Deputy McGrath, Getter, General General Joshua Solicitor Douglas I. F. Schwartz, Michael Letter. Laur- Hertz, and ence Gold reargued cause for No. 82-1913. appellant the briefs were Earle R. Hirsh- Putnam, Linda him on With George man, Chanin, Robert Kaufmann. Coleman, T. Jr.,
William reargued appellees the cause for him on both cases. With American briefs appellee T. Bliss Zoé E. Association were Donald Public Transit George Parker, Baird. P. Jr., filed briefs for appellee San † Antonio Transit Metropolitan Authority.
† Briefs
urging
of
of amici curiae
affirmance
filed for the State
were
Attorneys
respective
California et al.
States as
General of their
Massachusetts,
Kamp
follows: Francis X. Bellotti
de
of
of
John K. Van
California,
Connecticut,
Lilly
I.
A.
of
Joseph
Lieberman of
Michael
Indiana,
Hawaii,
Illinois,
Hartigan
Linley
Neil F.
of
of
Robert
E. Pearson
Kansas,
Guste,
Stephen
Armstrong Kentucky,
T.
of
L.
J.
David
of
William
Jr.,
Louisiana, Stephen
Maryland,
Humphrey
H.
H.
III
of
Sachs of
Hubert
Minnesota,
Missouri,
Greely Montana,
of
of
of
John
Michael P.
Ashcroft
Douglas
Nebraska,
Hampshire,
L.
New
Gregory
Paul
of
H.
of
Smith
Jersey, LeRoy
Pennsylvania,
Irwin I. Kimmelman New
Zimmerman
Carolina,
Utah,
T. Travis
John
Medlock of South
David Wilkinson
J.
Easton, Jr.,
Vermont,
Virginia, Chauncey
Gerald L. Baliles of
H.
Wisconsin,
Browning
Virginia,
Follette
of West
Bronson C. La
Employees’
Public
Wyoming;
A.
for the
G. McClintock of
Colorado
opinion
delivered the
of the Court.
Blackmun
Justice
in National
We revisit
these cases an issue raised
Usery,
In the
a Federal District Court concluded
municipal ownership
operation
and
of a mass-transit
system
governmental
thus,
a traditional
function and
under
is
League
exempt
obligations
Cities, is
from the
imposed by
question,
Faced with the identical
the FLSA.
Appeals
appellate
one
three Federal Courts of
and
state
opposite
court have reached the
conclusion.1
Martin;
Peabody
Jeffrey
Endicott
N.
by
Retirement Association
and
Crump;
David
by
Legal
for the
of America
for
Foundation
the National
Witt,
Roger
Cutler,
F.
John W.
Municipal
by
Law
Institute of
Officers
Brown,
Taube,
Benjamin
Shelley,
L.
J. Lamar
William H.
William I.
Thornton, Jr.,
Underhill,
Henry
Jr.,
Rhyne, Roy Bates,
W.
Charles S.
D.
Agnost,
Alfton,
Baker,
Pierce,
George
Robert J.
James K.
D.
and
Clifford
Jr.;
Lawrence R. Velvel by
for the National
of Cities et al.
Kaplan;
Elaine
Employer
for the
National Public
Labor Relations
Clark,
R. Theodore
Jr.
Association et al.
Chattanooga
Regional Transportation Authority,
1 See Dove v.
Area
(CA6 1983),
Joiner,
City
sub nom.
Macon v.
pending
I history public transportation Antonio, Tex., San history characteristic of of local mass transit generally. Passenger transportation the United States provided originally private hire on within San Antonio was transportation company. In 1913, basis a local the Texas Legislature municipalities regulate authorized State’s providing carriage for vehicles hire. 1913Tex. Laws, Gen. 147, § 4, ¶ 12, codified, amended, ch. now as Tex. Rev. 1963). (Vernon §§ 20 Art. Ann., Civ. Stat. years Two setting an ordinance forth later, San Antonio enacted *4 safety requirements passen franchising, and for insurance, operated city rely ger hire. The continued to vehicles publicly regulated private mass until on such transit purchased privately Transit when it owned San Antonio Company replaced public a known as and with (SATS). System operated Antonio Transit SATS the San equip city transferred its facilities and until when Authority Metropolitan appellee Antonio Transit ment to San (SAMTA), authority organized public mass-transit on a countywide generally Tex. Rev. Ann., basis. See Civ. Stat. 1984). (Vernon currently Supp. is the Art. 1118x SAMTA provider transportation major in the San Antonio metro politan vehicles alone, 1978 and 1980 its area; between route miles and carried over 63 traveled over 26 million passengers. million point localities, Antonio reached
As did other San for financial where it came to look to Federal Government maintaining public its mass transit. SATS assistance expenses obligations managed operating bond to meet its and existence federal or local for the first decade its without By position 1970, however, aid. its financial had financial point vital to the where federal subsidies were deteriorated operation. general manager SATS’ for its continued year “if that we do not receive sub- testified before may help Government, from stantial the Federal San Antonio [public] join growing inferior . . . ranks of cities have may up [public]transportation transportation end with no or at all.”2 principal program other federal which SATS and systems
mass-transit Transportation looked for relief was the Urban Mass (UMTA), L. 88-365,
Act of 1964 Pub. 78 Stat. §App. seq., pro 302, as 49 U. C. 1601et which amended, to urban vides substantial assistance mass-transit programs. generally Authority Jackson Transit v. Tran Union, sit UMTA now authorizes the percent Department Transportation to fund 75 of the outlays up percent expenses capital operating to 50 5(d) programs. §§ 4(a), (e), qualifying mass-transit 1604(d) (e). 1603(a), §§ App. 49 U. S. C. received SATS subsidy, capital grant, its first million UMTA $4.1 February December 1970. From then until 1980, SATS and grants over SAMTA received million UMTA $51 —more capital grants, operat than million over million in $31 $20 ing assistance, and a minor amount in technical assistance. During years, first SAMTA’s two fiscal it received $12.5 operating grants, million in UMTA million from sales $26.8 *5 only taxes, and million from fares. Federal subsidies $10.1 Transportation: Hearings Urban Mass on H. R. 6663 et al. before Housing the Subcommittee on of the on Banking House Committee and (statement (1970) Hill). Currency, Cong., Sess., 91st 2d of F. Norman currently percent and local sales taxes for account about 75 operating expenses. SAMTA’s present controversy
The
concerns the extent
to which
subjected
may
minimum-wage
SAMTA
be
to the
and over
requirements
time
of the FLSA. When the
was
FLSA
en
wage
provisions
apply
in 1938,
acted
its
and overtime
not
did
employees
employees
local
or, indeed,
mass-transit
to
3(d),
§§
governments.
13(a)(9),
state and local
52 Stat. 1060,
Congress
minimum-wage coverage
In 1961,
1067.
extended
employees
any private
mass-transit carrier whose an
gross
nual
revenue
than
was not less
million. Fair Labor
$1
§§ 2(c),
of 1961,
9,
65,
Standards Amendments
75 Stat.
71.
years
Congress
coverage
later,
Five
extended FLSA
to state
local-government employees
and
for the first time
with
drawing
minimum-wage
exemptions
and overtime
from
public hospitals,
and mass-transit
schools,
carriers whose
subject
regulation.
rates and services were
to state
Fair
102(a)
(b),
§§
of 1966,
Labor Standards Amendments
Congress
time,
831. At
Stat.
the same
eliminated the over
exemption
employees
time
for all mass-transit
other than
§
operators,
206(c),
drivers,
and conductors.
836.
Stat.
application
public
hospitals
of the FLSA to
schools and
Congress’ power
ruled
was
to be within
under the Commerce
Maryland Wirtz,
Clause.
On the District adhered its view Court judgment again Supp. F. entered for SAMTA. 557 regarded court looked first to what it reality” “historical involvement in mass transit. It always recognized operated that States not had owned and systems, they engaged mass-transit but concluded that had pattern public regulation, longstanding in a and that this regulatory gave of sover- tradition rise to an “inference eignty.” Id., at 447-448. The court next looked record of federal involvement the field and concluded that immunity constitutional not an erosion of would result authority respect federal to state-owned mass-transit with systems, many because federal themselves contain statutes exemptions for States and thus make the withdrawal of fed- public systems regulatory power mass-transit eral over Although supervening policy. 448-450. Id., at federal employee wages over the Federal Government’s obviously had eroded, the FLSA would be under any wages public not interest in the mass-transit asserted long- employees until 1966 and hence had not established a standing field, interest in the in contrast to the federal century-old regulatory presence in the in- railroad *8 dustry significant Long in Island. found for the decision Finally, compared the court mass transit to the list constitutionally immune in National functions identified as League not and concluded that it did differ from Cities any respect. in material The those functions court stated: distinguished exempt [National “If transit is to be from the identifying Cities] functions it will have to be a way pornography function in the same traditional state is they it it, sometimes identified: someone knows when see but they Supp., 557 F. at 453.4 can’t describe it.” Secretary again appeals and Garcia took direct from jurisdic- judgment. probable noted District Court’s We (1983). argument, tion. 464 U. 812 initial S. After reargument, to our for cases were restored calendar parties requested argue following to brief and were question: additional principles or
“Whether not the of the Tenth Amend- Usery, ment as set forth National v. Cities (1976), 426 833 468 U. S. should be reconsidered?” (1984). U. S. 1213
Reargument followed due course.
4
analyzed
The District
also
Court
the status
mass transit under
City
Sixth Circuit Amersbach Cleve
four-part
test devised
(1979).
land,
case,
In
Appeals
The Na under tional Cities were summarized this Court of supra. summary, Hodel, Under that four conditions must activity may be satisfied before a immune state be deemed particular regulation from a federal under the Commerce First, it is said that issue Clause. the federal statute at regulate Second, must “the the statute ‘States States.’” ‘attribute[s] indisputably of must “address matters that are sovereignty.’” compliance fed Third, state with ability obligation “directly impair [the States’] ‘to eral must operations govern integral structure areas of traditional ” Finally, federal mental functions.’ the relation of state not be interests must such that “the nature justifies at S., 452 U. . . interest . state submission.” League Cities, quoting 426 287-288, 29, and n. National of S., 845, 852, at 854. 538 in the cases focused on the has controversy present
third Hodel
federal statute
requirement
challenged
—that
functions.”
The Dis
governmental
trench on “traditional
voiced a common concern:
the abundance
“Despite
trict Court
state functions are
adjectives,
identifying
particular
of
which
557 F.
447. Just how
immune remains difficult.”
Supp.,
troublesome the task has been
revealed
results
Thus,
held that
reached
other federal cases.
courts have
Ambulance
Gold Cross
services,
ambulance
v.
regulating
City,
City
(WD
Kansas
F.
956,
538
967-969
Mo.
Supp.
(CA8 1983),
aff’d on other
Health 671, 669 F. 2d 680-681 cert. de (CA11), nied, 459 U. (1982); S. 976 and provision in-house domestic Bonnette for services and aged handicapped, v. Califor Agency, nia Health and (CA9 704 F. 1465, 2d Welfare 1983), are not entitled to immunity. We find it difficult, if not an impossible, identify organizing principle each of in places the cases the first on one side of a group line and each the cases in the second group on other side. constitutional distinction between driv licensing traffic, ers and or regulating for between example, operating a highway authority and a mental health operating facility, is elusive at best.
Thus this in far, headway Court itself has made little defining scope governmental functions deemed National Cities. under protected that case the Court set forth examples protected unprotected functions, S., 854, see 426 n. 851, 18, U. at but provided no of how explanation examples those were identified. The other case in only which the Court has had occasion to Long problem address We there observed: Island.5 “The determination of whether federal law a state’s impairs with ‘areas traditional func respect [state] 684, tions’ at times be a difficult one.” 455 may S.,U. Cities, at 852. The quoting S., accuracy of that statement is demonstrated this Court’s Long Island in in a workable developing own difficulties re standard “traditional functions.” We governmental reality there on “the historical large part lied the functions tradi of railroads is not operation among tionally by state and local but we performed governments,” County Pharmaceutical Assn. v. Abbott also, however, Jefferson Laboratories, Mississippi, 150, 154, (1983); FERC n. 6 U. S. (1982) (opinion concurring judgment part and n. 7 U. S. 542, 558, part); Fry n. 2 United dissenting (1975) (dissenting opinion). *11 simultaneously “a historical of state disavowed static view regulation.” generally from immune federal functions (first origi- emphasis emphasis added; in S.,U. at 686 second nal). particular inquiry a function’s held that the into We merely determining a means “traditional” nature was unduly handicaps statute at issue “basic whether the federal prerogatives,” not 686-687, at but we did offer an id., state prerog- explanation what makes one state function a “basic Finally, having ative” and another function not basic. dis- pedigree rigid on the historical of state claimed a reliance particular it area, in we nonetheless found involvement emphasize appropriate record the extended historical transportation. field involvement of rail federal Id., at 687-689.
Many “undoubte[d] . . constitutional standards involve . (1975) gray Fry States, v. United 421 U. S. areas,” (dissenting opinion), despite and, the difficulties that this normally other far, Court and courts have encountered so case-by-case might assumption be fair to venture the development would lead to workable standard deter- governmental mining particular function be whether a should regulation immune from under Commerce Clause. cautionary however, A further note is sounded, immunity experience in the related field of from Court’s federal taxation. In South Carolina United (1905), U. S. 437 the Court held for the first time that the immunity recognized Day, state tax Collector 11 Wall. only (1871), “ordinary” “strictly extended to the governments governmental” instrumentalities of state carrying not to instrumentalities “used the State ordinary private on of an S., business.” 199U. at 461. applied the Court the distinction While outlined South following years, during Carolina for the at no time period develop did the Court a consistent formulation of the governmental kinds of immu- functions that were entitled to nity. protected The Court identified functions various “strictly gov- “essential,” “usual,” “traditional,” times as or
541 ernmental.”6 While “these differences in . phraseology . . Brush v. Com must not be too literally contradistinguished,” missioner, 352, 300 U. 362 (1937), S. reflect an they inability to of a specify precisely aspects what function governmental it made to the necessary “unimpaired existence” of the Day, 11 States. Collector v. at Wall., 127. the Indeed, ultimately “not, by Court chose an attempt to formulate any general test, risk the embarrassing [to] decision of cases activities of a different kind [concerning] which arise may Brush Commissioner, in the future.” v. 300 U. at 365. S., If these cases had tax-immunity any common it thread, inwas attempt distinguish between “governmental” To say functions.7 that the “proprietary” distinction be- Tracy Co., Flint (1911) v. Stone 107, (“essential”);
6 See
220 U. S.
172
(1938)
Helvering
Therrell,
218,
Helvering
(same);
v.
303 U. S.
225
v.
(1934)
Powers,
California,
214,
(“usual”);
United States 293 U.
225
S.
(“activities
(1936)
175,
traditionally
297 U. S.
which
states have
(1905)
South Carolina v. United
engaged”);
437,
199 U. S.
(“strictly governmental”).
Carolina,
In South
concept
“strictly
relied on the
govern
Court
application
uphold
liquor
mental” functions to
a federal
license tax
Flint,
monopoly.
liquor-distribution
a
In
state-owned
Court stated:
operations
“The
is between . . . those
of the
true distinction
States essen
governmental functions,
[sic]
tial
and which the
to the execution
its
only
itself,
private
which are of a
State can
do
and those activities
charac
ter”;
part
standard,
governmental
under
no
of the
“[i]t
this
is
essential
transportation,
provide
supply
functions of a State to
means of
artificial
Helvering,
Ohio S.,
In
light,
water and the like.” 220 U.
at 172.
(1934),
involving a
liquor-distribution monop
another case
buying
oly,
selling
the Court stated that “the business
commodities
function,”
performance
governmental
not the
of a
and that
a
“[w]hen
...
quasi
place seeking
state enters the market
customers
divests itself of its
tanto,
sovereignty pro
trader,
far,
on
and takes
the character of a
so
at
Id.,
least,
power
government
is concerned.”
taxing
as the
federal
Powers,
application
upheld
In
of the federal income tax
369.
the Court
railroad;
state-operated commuter
the Court
the income of trustees of a
withdraw sources of revenue from the
that “the State cannot
reiterated
depar
taxing power
engaging in businesses which constitute
which, by
their
governmental
and to
reason of
usual
functions
ture from
extend,”
normally
regardless
nature,
taxing power would
the federal
“governmental”
“proprietary” proved
stable,
to be
tween
something
however,
be
of an overstatement.
would
provision
example,
the Court declared that
govern-
municipal
supply
part
“is no
of the essential
water
Tracy
Co.,
Flint v.
mental functions of a State.”
Stone
years
Twenty-six
any inter-
later,
172.
without
*13
legal
vening change
applicable
the Court
standards,
position
pro-
simply rejected
and decided that the
its earlier
municipal
supply was immune from federal
vision of a
water
governmental
though
an essential
even
function,
taxation as
by
long
operated
profit
municipal
for
waterworks
had been
industry.
private
Commissioner,
S.,
Brush v.
300 U.
at
holding
At
370-373.
the same time that the Court was
municipal
supply
it
taxes,
water
to be immune from federal
system
rail
had held that a state-run commuter
was not im-
(1934).
Helvering
Powers,
mune.
v.
fact that “are undertaken for what the State S., Allen public Accord, 293 U. at conceives be the benefit.” 225. Regents, 439, 304 U. 451-453 during heyday governmental/proprietary Even intergovernmental tax-immunity distinction in doctrine explained Court never the constitutional basis that dis expressed tinction. Carolina, South it concern its that immunity unlimited state from federal taxation would allow the States to undermine the Federal Government’s tax base by expanding previously private economy. into sectors of the Although S., at 454-455.8 the need to reconcile obviously state and federal interests demanded that state immunity try limiting principle, have some did not Court justify particular simply it reached; result concluded proceeded [must] drawn,” a “line be id., cases, draw that line. The Court’s elaborations in later such Helvering, as the assertion in Ohio (1934), seeking place “[w]hen enters market quasi sovereignty pro customers it divests itself of its tanto,” *14 ipse explanation. sound more of dixit than This reasoned inability give principled content to the distinction between “governmental” “proprietary,” significantly and no less than unworkability, its led the Court to the distinction abandon in New York v. States. United
The distinction the unworkable in Court discarded as immunity proved the in field of tax has no more fruitful the regulatory immunity field of under the Commerce Clause. any might Neither of the alternative standards that be do employed distinguish protected unprotected between and governmental manageable. rejected appear We functions possibility immunity purely making the a historical turn on Long properly in Island, standard of “tradition” and so. The approach most a immu- obvious defect of historical state nity changes prevents accommodating is a court from changes in the re- States, historical functions that have liquor South Carolina because especially weighty That concern was taxes, object case, for over dispute in that then accounted York New one-fourth the Federal Government’s revenues. States, (1946) (dissenting opinion). United n. S. like suited a number of functions education once-private At and their assumed subdivisions.9 being same virtue of a historical time, only rigorous apparent meas- reasonably its of a standard, namely, promise objective for illusory. history ure state Reliance on immunity, an of the most line-drawing results organizing principle sort; the of state functions arbitrary genesis governmental from the Revolu- stretches over a historical continuum before tion to to decide fiat and courts would have present, how a of state involvement precisely longstanding pattern had to be for federal to be defeated.10 regulatory 9Indeed, particular governmental the “traditional” nature of a function nearsightedness; self-evidently a today’s can be matter of historical “tradi yesterday’s suspect Thus, tional” function is often innovation. provision public parks Cities offered the recreation as an example governmental S.,U. 851. A of a traditional function. 426 at earlier, however, years scant 147 U. Shoemaker United (1893), city originally pointed the Court out that commons had been common,” provided grazing not for for domestic animals “in recreation but living, proposition memory private of men now a to take “[i]n [by public park a . . . been property eminent for would have domain] Id,, regarded legislative power.” as novel exercise of 297. reasons,
10 Formuch the same the existence vel non of a tradition provide adequate particular in a area an involvement does not immunity. current standard Most of Federal Government’s activity years Deal, regulatory originated ago than with the New less good portion developed past two decades. The it has within the vintage regulatory strength activity recent of this does not dimmish activities, applying regulatory of the federal interest in standards to state *15 strength being nor does it affect the interest free States’ from Although intergovernmental supervision. tax-im federal Court’s ostensibly particular munity subjected decisions have state activities to traditionally “ha[ve] taxation those activities been within federal because taxing] power beginning,” States, New York v. [federal from the United by S., (Stone, J., concurring, joined Reed, Murphy, 326 U. at 588 C. Burton, JJ.), required long Court has not in fact taxes to have historical records in effective. The income tax issue in order be at Powers, years took effect than a decade before supra, less the tax challenged, application federal tax which was while the whose was selecting govern- A nonhistorical standard for immune likely just mental functions is to be as unworkable as is a goal identifying “uniquely” gov- historical standard. The example, rejected ernmental functions, for has been government liability part Court in the field of tort because “uniquely” governmental the notion of a unman- function is ageable. Towing See Indian Co. 350 U. v. United (1955); Lafayette 61, 64-68 see also Louisiana Power & (1978) Light (dissenting opinion). Co., 435 possibility immunity Another would to confine to “neces- be sary” governmental services, is, services that would be provided inadequately government or not at all unless provided Tracy Co., them. Cf. Flint v. atS., Stone category, 172. The set of services that fits into this how- may negligible. unregulated ever, well be The fact that an produces some service than de- less of a State deems market provide sirable!does not mean that the State itself must service'; in if out” cases, most not all the State can “contract by hiring private provide simply or firms to the service providing existing open suppliers. subsidies to It is also question equipped how well courts are to make this kind of workings determination about the of economicmarkets. believe, fundamental however, We that there is more why problem problem explains here, at work gov- provide Court was never for the able to a basis ernmental/proprietary intergovernmental in the distinction tax-immunity why attempt an cases and to draw similar dis- respect regulatory tinctions with to federal under unlikely regardless to succeed Cities phrased. problem of how the distinctions are The is that any governmental/proprietary distinction nor neither York in New v. United States took effect upheld rescinded was Powers, S., Helvering years 293 U. less than two later. 222; Rakestraw, Immunity Reciprocal Rule Governmental Tax — A 3, 34, Legal Myth, 11 n. 116 Fed. Bar J. *16 important governmental purports separate out other to .that be faithful to the role of federalism a demo functions can system society. essence of our federal is cratic The open them realm left under the within the equally engage must free to Constitution, the States be any activity weal, their citizens choose the common unnecessary anyone or else— no matter how unorthodox judiciary including state involvement be. —deems Any immunity “traditional,” rule of that looks to the “necessary” governmental “integral,” functions or nature inevitably judiciary make invites an unelected federal deci policies it sions about which state favors and which ones government dislikes. “The science of experiment,” ... science of (1821), Dunn, Anderson v. Wheat. and the cannot serve as laboratories for social experiment, Liebmann, see New Ice Co. v. economic State (1932) (Brandeis, they dissenting), if J., 285 U. they pay price changing must an when meet the needs added citizenry by day taking up of their an earlier functions that society private and a different left in hands. the words of Justice Black: unchanging any not, be,
“There is and there cannot line of demarcation between essential and non-essential governmental Many governmental functions. functions today past have at some time in the non- been governmental. genius government provides of our sphere that, within the of constitutional action, people acting through through not the courts but their — legislative representatives power elected —have to determine as demand, conditions what services public requires.” Helvering functions the welfare (concurring opinion). Gerhardt, S., at 427 reject, principle therefore We now as unsound practice, immunity unworkable a rule of state from fed- regulation judicial appraisal eral that turns on a of whether a
particular governmental “integral” function is or “tradi- Any tional.” such rule leads to inconsistent results at principles the same time that it disserves of democratic self- governance, inconsistency precisely and it breeds because principles. from divorced those If there on are to be limits power the Federal Government’s to interfere with state func- undoubtedly tions—as there are—we must look elsewhere to accordingly underlying find them. We return to the issue League that confronted this Court National Cities—the manner in which the Constitution insulates from States the Congress’ power reach of under the Commerce Clause.
Ill The central theme National Cities was that occupy special position the our constitutional system scope Congress’ authority and that the under position. course, Commerce Clause must reflect that Of specific language provide Clause its Commerce does not any special Congress’ respect limitation on with to the actions (1983) Wyoming, States. EEOC v. 460 U. S. (concurring opinion). equally true, however, It is that the provides beginning text rather than Constitution every inquiry questions the final answer to into of federalism, “[bjehind provisions for the words of the constitutional are postulates Mississippi, limit which and control.” Monaco v. Cities re- general precludes that the flected conviction Constitution devouring] [from] “the National Government essentials Maryland sovereignty.” S., at 205 Wirtz, of state (dissenting opinion). In order to be faithful to the under- lying premises must Constitution, courts look “postulates which limit and control.” problematic perception proved that the has is not the
What imposes structure limitations on Constitution’s federal content of Clause, rather the nature and those Commerce but approach defining on Con- One the limits limitations. gress’ authority regulate under the Commerce the States underlying political identify elements of certain Clause is to “sepa- sovereignty to the that are deemed essential States’ County Oregon, independent Lane rate and existence.” *18 obviously underlay approach 71, This Wall. governmental the Court’s use of the “traditional function” League concept in It has led to the National Cities. also of separate challenged requirement federal statute indisputably ‘attribute^] of that are state “address matters sovereignty.’” quoting 452 U. at National Hodel, S., In S., 426 U. at 845. Cities, of of example, Cities for the Court concluded that itself, decisions by concerning wages employees a hours of State its sovereignty.” an of state are “undoubted attribute opinion explain aspects S., at 845. not what of The did attribute,” such decisions such an “undoubted made them scope then on the Court since has remarked the uncertain of concept. Wyoming, S., See EEOC 460 U. point inquiry, n. 11. however, of the has remained single particular governance out features of a internal State’s parts sovereignty. that are deemed to be intrinsic of state ultimately identify principled We doubt that courts can Congress’ scope constitutional on the limitations Com- powers merely by relying merce Clause over the States on sovereignty. priori part, a definitions state this objective because elusiveness criteria for “funda- sovereignty, problem mental” elements of state we have governmental witnessed the search for “traditional func- is, tions.” however, There a more fundamental reason: the sovereignty of the States is limited the Constitution itself. variety sovereign powers, example, A for are withdrawn § from the Article 10. 8 of Ar- I, Section the same equally sharp sovereignty ticle works an contraction of state by authorizing Congress legisla- range to exercise a wide (in powers conjunction Supremacy tive with the Clause VI) displace contrary legislation. of Article By providing Hodel, S., 452 U. at 290-292. review final questions of federal law in Article Court, this III curtails sovereign power States’judiciaries of the to make author- itative determinations of law. See Martin v. Hunter’s (1816). Finally, developed applica- Lessee, Wheat. through greater tion, Fourteenth Amendment, part Rights sovereign Bill of to the States limits the possess legislate that States otherwise would respect to their with citizens and to conduct their own affairs. unquestionably significant “retai[n] The States do meas- sovereign authority.” Wyoming, S., ure of EEOC v. 460 U. They only dissenting). J., at 269 so, however, do (Powell, to the extent that the not Constitution has divested them original powers powers to of their and transferred those *19 the Federal Government. In the words of James Madison Congress: the Members of the First with “Interference power the was no States constitutional criterion Congress. power power given, the of If of the was not Congress given, they might not if it; could exercise exercise although it, it the laws, should interfere with the or even Cong. of Constitution of the Annals States.” point Justice Field made the same in the course of his defense autonomy dissenting opinion in & of state in his Baltimore (1893), Baugh, 368, R. defense Ohio Co. quoted approval Tompkins, in Erie R. 304 U. with Co. (1938): 78-79 recog-
“[T]he States . . . Constitution the United autonomy independence preserves the and nizes legislative independence in- the their States — judicial departments. [Federal] dependence in their judicial legislative [supervision or the over either except permissible as is in no case action of States specifically authorized the Constitution to matters Any delegated interference to the United States. or except permitted, an invasion either, thus is with as and, extent, to that a denial of the State independence.” its say that the Constitution assumes result,
As say little about the nature role of the is to continued States Only recently, recognized that the this Court of that role. immunity recognized purpose in Na- of the constitutional province preserve tional is not to “a sacred Cities autonomy.” Wyoming, S., at 236. EEOC v. 460 U. state § exceptions, guarantee, IV, rare like the Article With integrity, territorial the Constitution does not carve state may express sovereignty Congress out elements of state employ delegated powers displace. James Wilson not its Pennsylvania ratifying in 1787:“It convention reminded although presupposes the existence of true, sir, indeed, governments, yet suppose does not this Constitution respected.” power to be in the them to be the sole Debates Adoption Conventions on the of the Federal Several State 1876) (J. (Elliot). power Elliot 2d ed. Constitution respected” “power to be the Federal is a Government sovereign well, powers remain as to all fact that not vested or denied them Con- guidance stitution offers no about the frontier between where power state and federal lies. no license to short, we have employ freestanding conceptions sovereignty of state when measuring congressional authority under the Commerce *20 Clause. “residuary look for the States’ and inviolable
When we sov- (B. 1961) ereignty,” p. Wright The Federalist No. ed. (J. Madison), shape in the of the constitutional scheme rather predetermined sovereign power, in than notions of a different sovereignty emerges. Apart measure of state from the limi- delegated in tation on federal inherent the nature Congress' powers, principal by I Article the means chosen the Framers to ensure the role the States in the system in lies the structure of the Federal Government itself. novelty composition It is no observe that the of the Fed- large designed part protect eral Government in was the overreaching by Congress.11 States from The Framers thus gave the a role in the selection both of the Executive Legislative and the Branches of the Federal Government. The States were vested with indirect influence the over Representatives Presidency by House and the their con qualifications trol of electoral and their role in Presidential § 1. They elections. U. S. Art. Art. Const., I, § 2, II, given were more in Senate, direct influence where each representation equal State received and each Senator was to § legislature be selected his Art. I, State. 3. The significance equal representation attached to the in States’ prohibition any the Senate is underscored constitu divesting representation equal tional amendment a State of without the State’s consent. Art. V.
The extent to which the structure of the Federal Govern- ment itself was relied on to insulate the interests of the States is evident the views of the Framers. James Madi- explained partake son sufficiently that the Federal Government “will spirit [of States],
of the to be disinclined to rights prerogatives invade the or the individual (B. governments.” p. of their The Federalist No. 1961). Wright Similarly, ed. observed James Wilson object provide “it was a favorite the Convention” to security against of the States federal encroachment and that the of the itself served structure Federal Government placed particular 2 Elliot, that end. at 438-439. Madison representation equal reliance of the States on the recognition which he saw “at once a constitutional Senate, portion remaining sovereignty individual 11 See, g., Choper, e. National Political Proc J. Judicial Review and the (1980); Safeguards of Wechsler, 175-184 Federalism: The ess Political Composition Role of the States in the and Selection of the Govern ment, (1954); Safeguards Pierre, L. The Political 54 Colum. Rev. 543 La *21 Agents Intergovernmental Immunity Redux: Federalism States (1982). Nation, Q. 60 Wash. L. of the U. residuary preserving an instrument States, and (B. p. Wright sovereignty.” ed. 62, Federalist No. The 1961). residuary sovereignty noted that “the He further implied principle [is] secured the States legislature” [federal] representation in one branch of the (B. added). Wright p. (emphasis No. 43, The Federalist 1961). Maryland, 4 Wheat. ed. See also McCulloch rely on a federal the Framers chose to short, special power system over the in restraints on federal which workings principally in the National inhered than in limitations on itself, rather discrete Government authority. sovereign objects interests, State federal protected by procedural properly safeguards then, are more system by judi- of the in the structure federal than inherent power. cially limitations on federal created political process preserv- of the federal in The effectiveness apparent today ing interests is even in the States’ the course legislation. hand, On the one of federal States have been proportion direct a substantial able to federal revenues general program- in own treasuries the form into their grants assisting specific The federal role in aid. state and longstanding governments provided one; local grants governments land to finance state from federal the be- Republic, grants ginning and direct cash were awarded early past quarter as 1887under the Hatch Act.12 In the as century grants
alone, federal States and localities have grown from result, billion to billion.13 As a $7 $96 12See, g., e. Howitt, Managing Intergovern A. Federalism: Studies (1984); Break, mental Relations 3-18 Fiscal Federalism in the United Years, First Outlook, Advisory The Evolution and States: Commis Relations, Intergovernmental sion on Future of Federalism 1981). (July 1980s, pp. 39-54 13 Howitt, supra, 8; Census, A. Bureau of the Dept. Com merce, Census, Expenditures by Bureau of Federal State for Fiscal (1984) (Census, p. Expenditures); Year Federal Division of Gov-
553 now account for grants about one-fifth of state and local gov- ernment expenditures.14 States have obtained federal for such funding services as and fire police protection, educa- tion, health and public and hospitals, parks and recreation, Moreover, sanitation.15 at the same time that the States have exercised their influence to obtain federal they support, have been able to exempt themselves from a wide variety of obligations under the imposed Commerce Clause. For the Federal Power example, Act, the National Labor Act, Relations the Labor-Management and Reporting Act, Disclosure the Occupational and Health the Safety Act, Employee Security Act, Retirement Income and the Sher- man Act all contain or express implied exemptions States their and subdivisions.16 The fact that some federal statutes such as the extend general obligations FLSA the States extent to which the political cannot obscure the position Reports, eminent Accounts and Fiscal Service —Bureau Government Dept, Treasury, the Operations, Financial Federal Aid to Fiscal States: (1983 ed.). 1982, p. 1 rev. Year Relations, Significant 14 Advisory Intergovernmental Commission on (1984). 120, 122 of Fiscal Federalism Features 1974, 15 See, g., the Fire Prevention and Control Act 88 e. Federal 1535, amended, seq.; § 2201 15 U. C. et the Urban Park and Stat. as S. 1978, 3538, § Recovery seq.; Act of 92 16 U. S. C. 2501 et Stat. Recreation 1965, Secondary 27, Elementary Education Act of 79 and Stat. as § 2701 amended, seq.; Act, et S. C. Water Pollution Control 62 20 U. 1155, amended, § seq.; U. C. 1251 et the Public Health as 33 S. Serv Stat. 682, amended, seq.; § 42 Act, as U. S. C. 201 et Drink ice 58 Stat. Safe Act, 1660, amended, seq.; § 300f as 42 S. ing 88 Stat. U. C. et Water 197, 1968, 82 as and Safe Streets Act Stat. Crime Control Omnibus Community Develop Housing § amended, seq.; 42 3701 et U. S. C. 633, amended, seq.; § 42 C. 5301 et Stat. as U. S. ment Act of 1974, 88 Delinquency Prevention Act of Stat. the Juvenile Justice Census, Federal amended, seq. §5601 et See also U. S. C. Expenditures 2-15. § 152(2); § 402(e); § 824(f); C. C. U. S. 16 U. S. C. U. S. 16 See 1003(b)(1),1002(32); Brown, §§ and Parker v. § 652(5);29 U. S. C. C.
317 U. system to minimize the has served the States Clause.17 bear under Commerce burdens that *23 changes in structure of the Federal We realize place since not the least 1789, have taken Government popular the substitution of election Sena- which has been adoption in 1913, of the Seventeenth Amendment tors changes may work to alter the influence of and that these political process.18 Nonetheless, in the federal the States background, against are that the funda- this we convinced imposes on that the constitutional scheme mental limitation protect as is one to the “States States” the Commerce Clause Any process re- rather than one of result. substantive powers must find the exercise of Commerce Clause straint on procedural justification in the nature this basic limita- its compensate possible it tailored to tion, and must be for failings political process in the national rather than to dictate autonomy.” province Wyoming, a “sacred EEOC v. at 236. S., 460 U. present are concerned, then,
Insofar as the cases we need go perceive nothing no further than to state that we in the minimum-wage requirements of the FLSA, overtime and as sovereignty applied SAMTA, to that is destructive of state any provision. or violative of constitutional SAMTA faces nothing minimum-wage more than the same and overtime employers, obligations that hundreds of thousands of other private, public have to as well meet. FLSA, regards Congress incorporated special provisions Even as
concerning pay firefighting personnel overtime law enforcement and to it order take account special when amended FLSA respect positions. with to these concerns of States and localities § 207(k). Congress impose any U. S. C. also declined obligations on respect governments policymaking personnel state and local with who subject §§ 203(e)(2)(C)(i) not are service laws. See civil U. S. C. (ii). 18See, g., 177-178; e. Choper, supra, Kaden, Politics, Money, and Role, Sovereignty: State The Judicial Colum. L. Rev. 860-868 public simply In cases, these status mass transit protections underscores the extent to which the structural federally imposed the Constitution from insulate subjected burdens. When systems first state mass-transit obligations expanded in 1966, to FLSA and when it obligations simultaneously provided those exten- funding through sive for state and local mass transit UMTA. provided In the enactment, two decades since its UMTA has over billion mass-transit aid to States and localities.19 $22 funding alone, UMTA amounted to billion.20 As $3.7 predecessor above, noted SAMTA and its immediate have funding, including received a substantial of UMTA amount *24 years during over million SAMTA’sfirst two fiscal alone. $12 Congress simply placed In short, not has financial burden operate on the shoulders of States and localities that mass- systems, provided countervailing transit but has substantial may financial assistance well, assistance that leave indi- systems they vidual mass-transit better off than would Congress have been had never intervened all in the area. Congress’ public treatment of mass transit our reinforces political process systematically conviction that the national protects having from States their in risk functions handicapped by regulation.21 that area Commerce Clause
IV analysis Congress’ affording This makes clear that in action protections wage employees of the and hour SAMTA Agencies Department Transportation Appropria and Related See Hearings on a Subcommittee the House Committee tions for 1983: before (fiscal (1982) Sess., Cong., pt. p. years Appropriations, 97th 2d (fiscal 1983). year 1965-1982); Census, Expenditures Federal
20 Ibid. imply regulation meant that Our references to UMTA are not under accompanied by countervailing Clause must be financial Commerce application The Spending benefits under Clause. of the FLSA provided would be even had not federal SAMTA constitutional funding under UMTA.
provisions limit contravened no affirmative on the FLSA judg- Congress’ power the Commerce under Clause. must be reversed. ment of the District Court therefore occupy recognize the States course, Of we continue system position special specific our constitutional Congress’ authority scope of under the Commerce that the position. principal reflect that But the Clause must power is limit on the federal commerce that inherent basic sys- congressional built-in restraints that our all action—the through participation govern- provides federal tem process political ensures that laws mental action. The promulgated. unduly In the burden the will not be setting safeguards of these the internal factual cases political performed process have as intended. identify require not us to or
These cases do define what might impose structure limits the constitutional affirmative affecting on action the States under the Commerce Coyle Oklahoma, U. S. 559 We Clause. accept Frankfurter’s note and Justice observation New (1946): York v. 326 U. United adjudication process “The not Constitutional does conjuring up possibilities thrive on that never horrible *25 devising happen in the real world and doctrines suffi- ciently comprehensive in to cover the detail remotest contingency. beyond go required Nor need we what is disposition controversy kind of for a reasoned of the now before the Court.”
Though separate providing concurrence the fifth vote League in National possible implications” Cities was “not certain untroubled of the decision,
of S., U. attempted Court in that case articulate affirmative limits power govern- on Commerce in Clause terms of core mental fundamental of functions and attributes state sover- eignty. decisionmaking But the model of democratic
Court there identified underestimated, our view, the political process solicitude of the national for the continued vitality Attempts by of the States. other courts since then guidance proved imprac- to draw from this model have it both doctrinally League ticable and sum, barren. in National repair repair. Cities the Court tried to what need did not lightly precedent.22 We do not overrule recent haveWe apparent when it has hesitated, however, not become that a prior departed proper understanding decision has from a congressional power under Commerce Clause. See Darby, United v. S. 100, 116-117 Due power respect congressional for the reach within the system so federal mandates that we do now. Usery, (1976), National Cities U. S. 833 judgment reversed, The
overruled. District Court is and these cases are remanded to that for further court proceedings opinion. consistent with this
It is so ordered.
with whom
The
Powell,
Justice,
Justice
Chief
Jus-
join, dissenting.
Rehnquist,
tice
O’Connor
Justice
today,
decision,
5-4
Court
its
overrules
(1976),
Usery,
alters the I dissent.
I history examples course, are, There numerous over the prior in which decisions have been reconsidered this Court cases, however, and overruled. There have been few principle recent stare decisis and the rationale of which *26 (1978). Scott, 82, v. 437 U. S. 86-87 But see United States abruptly ignored The as we now witness.1 decisions were reasoning League Cities, in National and the Court of consistently principle applied there, have been reiterated past eight years. in Na 1976, Since its decision over League opinions quoted in tional Cities has been cited of joined by every present Vir Member of the Court. Hodel v. ginia Mining Assn., 264, & Recl. U. S. 287-293 Surface (1981); Long Transportation Co., v. Island R. Union (1982); Mississippi, 678, 684-686 v. 456 U. FERC (1982). years ago, Long in Is 742, 764-767 Less than three princi supra, Co., land R. a unanimous Court reaffirmed the inapplicable ples League of National but found them Cities of heavily regulation engaged of to the a railroad interstate commerce. Court stated: key prong League
“The applicable the National Cities test [repeated to this case is third one in Hodel], reformulated which examines whether ‘the compliance directly States’ with the federal law would impair ability integral operations their “to structure governmental areas of traditional functions.”’” S., at 684. “may recognized in that The Court case that the test one,” ibid., times be a difficult but was considered in that unanimous decision as settled constitutional doctrine. recently
As
as June
the five
Justices who consti-
majority
majority
tute
these cases also were the
Mississippi.
case,
FERC
In that
the Court said:
Usery, supra,
“In National
Cities v.
for exam-
ple,
regulation
Court made clear
the State’s
relationship
employees
its
with its
is an ‘undoubted
sovereignty.’
S.,
attribute of state
426 U.
at 845. Yet,
Cities,
National
following
changes
composition
some
in the
Maryland Wirtz,
Court,
had overruled
559 by holding ‘unimpaired’ Taylor, v. 353 U. S. California (1957), upheld regulation 553 which a federal labor applied employees, railroad 426 S., 854, U. at League acknowledged n. 18, National Cities that not of aspects sovereign authority all of a State’s immune are from control.” 456 at n. S., 764, 28. say require- The Court went on to that ev-en~wherethe League of the National met, ments Cities standard are “‘[t]here are in situations which the nature of the federal may justifies interest advanced be such that it state submis- quoting supra, Ibid., Hodel, 288, sion.’” n. 29. joint system regulation federal/state in such FERC was opinion in “situation,” but there was no hint the Court’s League that National its Cities—or basic standard —was subject today. to the infirmities discovered Although rigidly applied is not doctrine to constitu- “any questions, departure tional from the doctrine of stare justification.” special Rumsey, decisis demands Arizona v. (1984). Oregon Kennedy, 212 203, 467 U. S. See also v. (1982)(Stevens, concurring 667, 691-692, J., n. 34 456U. S. judgment). present cases, In the the five who Justices majority today compose participated in National stability reaffirming it.2 The Cities and the cases judicial respect decision, and with it for the precipitate overruling Court, are not this served multiple precedents we witness these cases.3 may
Whatever effect Court’s decision have weaken- ing application likely decisis, of stare to be less 2 O’Connor, only new Member of the Court since our Justice Cities, decision in joined reaffirming the Court in has Co., Long R. Transportation Union Island principles. its (1982) Mississippi, and FERC (1982), 456 U. (O’Connor, J., dissenting part). noted, stare decisis represents As one commentator “a natural evolu Lile, very on the from the nature of our institutions.” Some Views tion Decisis, of Stare L. Rev. Va. Rule *28 important Court to the Constitution than what the has done unique feature of the United is the A States itself. federal by system government guaranteed the Constitution and of very country. Despite implicit in name of our some opinion concept genuflecting in to the of federal- the Court’s effectively today’s reduces the Tenth Amend- ism, decision pursuant meaningless rhetoric acts ment to when hoids that the Fair to the Commerce Clause. Court (FLSA) Act “contravened Labor Standards no_affirmative power Congress’ limit under the Commerce Clause” on wage employment of all and hours of determine the rates employees. rejecting In Ante, at 556. state and local system, of our federal the Court states: traditional view “Apart from the limitation on federal inherent delegated Congress’ powers, I in the nature of Article principal means chosen the Framers to ensure system the role of the States in the federal lies Ante, structure of the Federal Government itself.” added). (emphasis intention, leave no doubt about its the Court renounces To it “in- its decision National Cities"because judiciary evitably an invites unelected federal to make policies decisions about which state its favors and which at 546. In other Ante, words, ones dislikes.” the extent may authority, to which the exercise their when States Congress purports Clause, act under the Commerce hence- by political forth is to be determined from time to time Federal Government, decisions made members says subject judicial decisions the will not be review. Court I that it does not seem to have occurred to the note Court today majority rejects it—an unelected five Justices — years understanding almost 200 constitutional doing only single In so, status federalism. there is passing reference to the Tenth Amendment. isNor so much any support as a dictum of court cited of the view that system may depend upon the role of the in the grace of elected federal officials, rather than on the interpreted by Constitution as this Court. my opinion follows, Part II addresses the Court’s
criticisms of National III Cities. Part reviews briefly understanding of federalism that ensured the ratification of the Constitution and the extent to which this today, recognized Court, until has that the States retain a significant sovereignty system. measure our federal applicability Part IV considers the in- the FLSA to the disputably provided by system. local service an urban transit
II immunity approved The Court finds of that test in League progeny National Cities and its is unworkable and of principle. finding in unsound In the test to be unworkable, begins by mischaracterizing League the Court National of subsequent concluding Cities and cases. In that efforts to immunity principle, define state are unsound in the Court radically departs long-settled from constitutional values ignores judicial system and government. the role of in of review our
A
opinion
arguing
Much
of the Court’s
is devoted to
that it
governmental
priori
to define a
difficult
“traditional
func-
League
engaged in,
tions.” National
Cities neither
nor
of
required,
a task.4 The
discusses and condemns
such
Court
League Cities,
In National
sphere
we referred to the
of state sover
of
functions,”
eignty
including
governmental
“traditional
realm which
is,
course,
precision.
luxury
precise
of
But
of
difficult
define with
enjoyed
interpreting
rarely
applying
general
definitions is one
provisions
surprisingly,
therefore,
of
Not
Court’s
our Constitution.
attempt
unhelpful. A
impossibility
to demonstrate
of definition is
simply
defining
number of the
not
problem
cases it cites
do
involve the
g.,
functions. E. Williams Mental Health Cen
governmental
Eastside
ter, Inc.,
(1982);
Friends
(CA11),
denied,
669 F. 2d
cert.
563 Government.5 In v. 460 226 (1983), EEOC U. S. Wyoming, for example, the Court stated that of immu principle “[t]he nity articulated National Cities functional is a . doctrine . . whose ultimate purpose is not to create a sacred of state but to
province
autonomy,
ensure that
the unique
benefits of a federal
. . . not
system
be lost
undue
through
federal interference in
Id.,
certain core state functions.”
236. See also
v.
Hodel
& Recl.
Virginia
Mining
Surface
Assn.,
(1981).
established therein and developed subsequent cases.6
5
considered,
undertaking
balancing,
hand,
such
we have
on the one
strength
challenged legislation
of the
interest
in the
federal
and the
impact
exempting
inquiry
from its reach.
States
Central to our
closely
challenged
implicates
the federal interest is
action
into
how
Clause, viz.,
promotion
central concerns of the
of a national
Commerce
Wyoming,
the States. See EEOC v.
economy
among
and free trade
(1983)
226,
(Stevens,
J.,
also,
example,
concurring).
U. S.
See
(1982)
Transportation
Co.,
Long
Union
R.
678,
Island
v.
(“Congress long ago
regulation of
concluded that federal
railroad labor
necessary
disruptions in
prevent
services is
vital rail service essential to
(1982)
Mississippi,
economy”);
FERC
the national
456 U. S.
(“[I]t
basic element of
is difficult to conceive of a more
interstate commerce
”). Similarly,
than
. .
we have
energy
electric
.
considered whether ex
empting
regulation
goals
would
States from federal
undermine the
Fry
v. United
program.
See
U. S. 542
See
Mining
Virginia
Assn.,
& Recl.
also Hodel 452 U. S.
Surface
(1981) (national
competition
mining
necessary
surface
standards
to insure
among
adequate
does not undermine States’
maintain
efforts to
standards).
hand,
the other
On
we have
assessed the in
intrastate
also
comply
if
jury done to the States
forced to
with federal Commerce Clause
League Cities,
S.,
enactments.
426 U.
at 846-851.
*31
addition,
immunity
the
on the Court’s difficulties in
tax
reliance
misplaced. Although
“govern
is
has abandoned the
field
the Court
see New York field,
mental/proprietary”
United
distinction in this
States,
(1946),
approach
relying
the drastic
B States’jrole Today’s does not how in the opinion explain the exercises, electoral process guarantees particular Commerce Clause will not on power infringe residual are elected from the sovereignty.7 Members States, various but once in office are Members of the they States, Massachusetts v. United immunity from taxation. (1978). Thus, problem equally defining faced with an difficult con- directly affecting stitutional boundaries of federal action didwe naive, many not adopt the view would think that the Federal Government protect rights may will whatever have. States itself opinion, suggests may Late in its after Court all there be some might impose “affirmative limits the constitutional structure on Ante, affecting action under the Commerce Clause.” 556. setting “[i]n asserts that the factual cases the The Court these internal political process performed Ibid. safeguards of the have as intended.” explain the judgment. does not basis for this Court Nor does it “political identify process” may in which the fail circumstances imposed. Presumably, “affirmative limits” are to be such limits are to be though Today’s Branch determined the Judicial even it is “unelected.” however, rejected opinion, balancing has suggests standard and no other standard that would enable a court to determine when there has been “political process.” specify a malfunction of the The Court’s failure to power, “affirmative limits” on federal or when and how these limits are to determined, may be'explained by transparent any be well fact that attempt subject precisely objections such would be the same on which it relies to overrule Cities.
565 Federal Government.8 the Although States participate the Electoral this is College, a reason to hardly view President aas of representative the States’ interest against federal encroachment. We noted recently hydraulic “[t]he pressure inherent within each of the to ex- separate Branches ceed the outer limits of its Chadha, INS . ..” power. 462 (1983). 951 The Court offers no reason to think this not pressure operate will when to Congress seeks invoke its under powers Commerce Clause, notwith- standing the electoral role the States.9 hardly imagine saying One can Congress this Court that because is individuals, composed guaranteed by rights Rights individual the Bill of amply Yet, protected by political process. position adopted are today indistinguishable in principle. The Tenth Amendment also is an part Rights. infra, essential of the Bill of at 568-570. history, At one time our the view that the of the structure Federal protect might Government sufficed the States have had a somewhat practical, although Wechsler, logical, more not a more Professor basis. proposed adopted by whose seminal article the view the Court today, simply predicated argument assumptions his do not accord on reality. with current Professor wrote: “National action has . . . Wechsler always polity, regarded exceptional been in our an intrusion to be justified by ordinary necessity, special rather than the some case.” Wechsler, Safeguards The The Role of Political Federalism: the States Composition Government, in the of the and Selection 54 Colum. (1954). only premise clearly L. Rev. is the of this Not view at proliferation years, legislation past odds with the of national over the variety political changes occurring century “a but structural and this Congress to make particularly have combined insensitive state local Advisory (ACIR), Intergovernmental values.” Commission Relations on Process, Policy, Impact Federalism: and Reform Regulatory adoption (providing Seventeenth Amendment direct election Senators), weakening level, political parties on the local and the media, among things, rise other have made increas of national interests, likely ingly to be representative of state local and more less Id., responsive national to the demands various constituencies. explained: “As Senators and 50-51. As one observer members farmers, develop independent among groups House constituencies such as laborers, businessmen, environmentalists, poor, of which each initiatives, tendency generally supports identify certain national their Kaden, positions with interests and the of state officialsis reduced.” *33 success at thinks that the States’ apparently Court exemptions for various and projects federal funds obtaining is indicative of from the federal statutes obligations some in pre- of the federal political process the “effectiveness . . .” at 552.10 But Ante, the States’ interests. serving the whether is not relevant to political question such success proper enforcing are the means of political processes the The fact that Congress constitutional limitations.11 generally 1980s, ACIR, Agenda the The Future Federalism the Courts: 1981). 1980s, p. (July in the Federalism 97 Kaden, Politics, Money, Sovereignty: and State The Judicial See also (1979) Role, (changes political practices L. Rev. 849 and 79 Colum. “may political initiatives mean that the branches no the breadth national they longer safeguarding well suited as once were to the task of the be as system protecting and role of the states in the federal the fundamental supra, at 1-24 Federalism, federalism”), ACIR, Regulatory values of regulation applicable (detailing the “dramatic shift” in kind of federal to the decades). Thus, ignore to the past over the two even if one were States position in of constitutional problems numerous with the Court’s terms theory, premises. questions there would remain serious as to its factual significant afforded the
10 TheCourt believes the financial assistance by the and localities Federal Government is relevant to the constitu States tionality extending Commerce Clause the enactments to States. See ante, at 552-553, held, however, 555. This Court has never that the by right mere disbursement of funds the Federal Government establishes a such funds. See Pennhurst State from to control activities that benefit Halderman, (1981). Hospital School Regard 17-18 U. S. willingness provide aid, of the Federal Government to less question the constitutional remains the same: whether the federal stat sovereign powers ute violates reserved to the Tenth Amendment. States,
11 Apparently in an effort to reassure the identifies Court major applicable several statutes that thus far have not been made to state Act, 824(f); § governments: the Federal Power 16 U. C. Man S. the Labor agement Act, 152(2); § the Labor-Management Relations U. S. C. Re- ’ Act, 402(e); § porting Safety and Disclosure Occupational 29 U. S. C. 652(5); Act, Employee § 29 U. C. Health S. Retirement Income Security Act, 1003(b)(1); 1002(32), §§ Act, U. S. C. and the Sherman Brown, seq.; § Ante, et see Parker U. C. 317 U. S. 553. The suggest Court does not that this restraint will continue after its Indeed, unlikely special groups decision here. it interest will fail does not constitutional limits on to reach transgress its power state activities does not judicial make less neces any review the cases in sary rectify which does do so.12 The States’ role in system our government is matter constitutional law, legislative not of “The grace. powers not delegated the United States nor Constitution, by it prohibited are reserved to the States, respectively, or to Amdt. 10. people.” Const., *34 More than the infirmities in troubling logical the Court’s i. e., reasoning is the result of its that federal holding, po litical officials, Clause, the Commerce the sole invoking are of the limits of their own This result is judges power. incon sistent with the fundamental of our constitutional principles g., See, e. (Hamilton). The system. Federalist No. 78 At Marbury Madison, least v. 1 since Cranch (1803), has been the settled of the federal province judiciary “to say what the law is” with to the constitutionality of Acts respect Congress. role rejecting judiciary protect the States from federal the Court’s ing overreaching, opinion offers no teaching for of the most explanation ignoring famous case our history.13 urge
to accept open the Court’s invitation to to extend these and other apply statutes to to the and their local subdivisions. responsibility assessing This Court has never before abdicated for ground constitutionality challenged parties on the that action affected theoretically through are for their the elec able to look out own interests process. League Cities, As the Court noted in National a much toral stronger argument protections as to inherent structural could have been Buckley Valeo, (1976), Myers made in either S. 1 or U. United States, (1926), cases, 272 U. than can be made here. In these signed legislation respect President that limited his with to cer appointments arguably tain and thus “it was ... no concern of this Court S., 841-842, n. 12. the law violated the Constitution.” they in The nevertheless held the laws unconstitutional because Court authority, notwithstanding. fringed on the President’s consent Presidential point; any authority this nor does it cite for its The Court does not address contrary view. in National “in states that the decision Cities Court judiciary to make decisions vites an unelected federal about which state
Ill
A major system, role that In our the States have pre-empted the National As cannot be Government. ratifying contemporaneous writings at the and the debates clear, ratification of the Consti- conventions make the States’ understanding predicated tution was on this federalism. adopted specifically Tenth Amendment was Indeed, the important promised role the States ensure that the proponents realized. of the Constitution was opposition was
Much of the initial to the Constitution in the fear that the National Government would be too rooted eventually powerful and would eliminate the States as viable political repeatedly This concern was voiced until entities. proponents Bill of the Constitution made assurances that a Rights, including provision explicitly reserving powers in among the would be first business new Congress. argued, example, if Samuel Adams *35 joined several to in “one entire under Nation, States were be every Legislature, of one Subject Legislation, the Powers which shall extend to supreme of and its be controul Laws & Sovereignty in whole, the the Idea of these must be States Henry from lost.” Letter Samuel Adams to Richard Lee (Dec. 1787),reprinted in Anti-Federalists versus Federal- policies Curiously, it favors and which ones its dislikes.” the Court then suggests the application governmental that under of the “traditional” analysis, function “the States cannot serve for as laboratories social and Ante, experiment.” 546, citing economic at Justice Brandeis’ famous (1932) Liebmann, New State Ice Co. in observation 285 U. S. (Brandeis, J., dissenting). Apparently the Court believes that when “an judiciary” unelected federal makes particular decisions as to whether a Governments, function is the or longer one for Federal State the States no Ante, may engage in experiment.” “social and economic at 546. The leaving virtually explain mercy Court does not how the the States of Government, judicial review, Federal without recourse will enhance opportunities experiment their and serve as ‘laboratories.” (J. 1967). George ists 159 Likewise, Lewis ed. Mason feared general government being paramount to, that “the in every respect powerful governments, more than the state give way Ratify- latter must in to the former.” Address (June ing Virginia 1788), reprinted Convention of 4-12, supra, Anti-Federalists versus Federalists, at 208-209. every Antifederalists raised these concerns almost ratifying generally convention.14 See 1-4 Debates Adoption Several State Conventions on the of the Federal (J. 1876). eight Elliot Constitution 2d. ed. As a result, only proposing voted Constitution after amend adopted eight ments be after All ratification.15 of these among their included recommendations some version of what strong later became the Tenth Amendment. Ibid. So was proposed seriously the concern that the Constitution was specific rights, including provi defective without a bill reserving powers sion to the that in order to secure eventually ratification, the votes for Federalists conceded necessary. provisions that such 1 B. Schwartz, were See Documentary History Rights: passim, Bill A 505 and generally agreed It was thus consideration of rights among bill would be first business of new (1789) Congress. generally Cong. 1 Annals 432-437 (remarks Madison). Accordingly, the 10 Amend James Rights proposed Bill ments that as the we know were Congress. adopted early the first session the First Rights, supra, The Bill of at 983-1167. Schwartz, 14Opponents particularly the Constitution were dubious of the Feder *36 powers delegated not to the alists’ claim that the retained United States express provision providing. example, of in absence an so For the fallacy. rights . are Winthrop is a mere . that what “[i]t James wrote that Schwartz, reprinted Agrippa, in 1B. given are Letters not reserved.” History 510, Documentary A Rights: The Bill of withholding Indeed, Legislature very to Virginia the came close adoption Rights of Bill the Constitution until the ratification of included, things, of the Tenth Amendment. among other the substance passim. supra, Rights, Schwartz, Bill of at 762-766 and The history, simply ignores, the Court documents This which integral in our constitu- role of the Tenth Amendment the theory. exposes believe, I the fundamental well, It tional being today. Far from Court’s error character of the judicial principle,” enforcement ante, “unsound maintaining the federal is essential to the Tenth Amendment carefully by adopted system designed the Framers and so Constitution.
B The had definite Framers ideas about the nature of the authority between the Federal and Constitution’s division example, In The Federalist No. State Governments. by drawing explained con- this division a series of Madison government of a “national” and trasts between the attributes government the Constitu- those be established government possess a national form of would an tion. While supremacy persons things,” form “indefinite over all government contemplated con- Constitution instead municipal [which] sisted of “local or authorities form distinct portions subject independent supremacy, no more authority, respective spheres general within their to the than general subject them, within its own (J. 1961). sphere.” Id., at 256 ed. Cooke Under the Con- sphere proposed government stitution, extended jurisdiction objects only,... leaving] of “certain enumerated residuary sovereignty to the several States a and inviolable objects.” all other Ibid. over separate elaborated on the of these
Madison content sovereignty spheres The 45: Federalist No. ’ delegated by powers proposed
“The Constitution Government, to the Federal are few and defined. Those Governments, which are to remain the State are numerous and indefinite. The former will be exer- principally objects, peace, cised on as war, external negociation, foreign powers .... commerce
reserved to the several States will extend to all the objects, ordinary in the which, course concern affairs, properties people; lives, the liberties and of the and improvement, prosperity order, the internal and (J. 1961). Id., State.” at 313 Cooke ed. operations
Madison considered that of the Federal important Government would be “most extensive and danger; times of war and those of State Governments peace security.” in times of and Ibid. As a result this powers, governments generally division of the state would important be more than the Federal Government. Ibid. separate sphere The Framers believed that the of sover- eignty reserved to the States would ensure that the States “counterpoise” power would serve as an effective to the the Federal Government. The serve States would this es- they loyalty sential role because would attract and retain the loyalty, of their citizens. The roots such the Founders objects peculiar thought, gov- found in were to state example, argued ernment. For Hamilton that the States “regulat[e] personal all those interests and familiar concerns sensibility immediately to which the of individuals is more (J. p. awake . . . .” The ed. Federalist No. 107 Cooke 1961). people perceive Thus, he maintained that would guardian as “the immediate and visible of life and any -more__than property,” a fact which “contributes other impressing upon people circumstance to the minds of the government.” affection, esteem and reverence towards the position, explaining Ibid. Madison took the same that “the minutely familiarly people will be more conversant” with governments, and “with the members of the business people greater proportion have ties of will a these, acquaintance friendship, family party personal and of (J. p. . . . .” The No. Cooke Federalist attachments 1961). Like Madison involve- Hamilton, ed. saw States’ everyday people ment in the concerns of the as the source *38 Nagel, loyalty. Federalism Ibid. See also their citizens’ of Cities as a Fundamental Value: Perspective, 1981 Ct. Rev. 81. the harm to the States that results from federal
Thus, overreaching simply is not under the Commerce Clause and cents. National Cities, matter dollars folly or Nor is a matter the -wisdom S.,U. at 846-851. usurp- by policy 546. ante, Rather, choices. Cf. ofcertain traditionally performed ing States, the federal functions overreaching the under the Commerce Clause undermines constitutionally power the mandated balance of between designed to Government, and the Federal a balance States protect our fundamental liberties.
C powers the of the States that can re emasculation of predicated on the sult from the Court’s decision Commerce “delegated power to the Clause as a United States” the language “Congress The relevant Constitution. states: shall power... regulate foreign To have Commerce with Nations, among States, the several and with the Indian Tribes.” § powers, cl. 3. I, 8, Art. Section 8 identifies a score of list lay money ing to taxes, borrow on the credit pay provide its for the common debts, United general brief defense and the welfare its reference before leading up to It “Commerce.” is clear from debates adoption of the Constitution that commerce to be regulated was that which the themselves lacked the practical capability regulate. g., e. See, M. Farrand, (rev. The Records of the Federal Convention ed. 1937); 22, 45. 11, 42, The Federalist Nos. also EEOC (1983) Wyoming, J., dissent (Powell, ing). language Clause Indeed, itself focuses on regulate: only a National activities that Government could foreign “among” commercewith nations Indian tribes and the several States.
To be sure, this Court has construed the Commerce Clause unanticipated changes past to accommodate over the two changes centuries. As these have occurred, the Court has had to decide whether the Federal Government has exceeded authority by regulating beyond capability its activities single regulate beyond legitimate of a State or *39 outweighed authority interests that the of the interests doing, properly however, States. so the Court has been mindful of the essential role of the in States our federal system. opinion The for the in Court National Cities was of history understanding
faithful in to its of federalism. system government Court observed that “our federal of imposes upon authority definite limits the regulate the activities of States as means of the power.” commerce 426 S.,U. at 842. The Tenth Amend- prevent Congress exercising ment was invoked to from its “‘power impairs integrity in a fashion that the States’ or ability effectively system.’” their to function in a federal Fry (quoting Id., at 842-843 421 States, S., v. United U. at 7). n. 547, recognized repeatedly
This Court has that state sover- eignty component system govern- is a fundamental of our century ago, Oregon, County ment. than a in Lane v. More (1869), 71 the that the Constitution 7 Wall. Court stated recognized necessary States, and, “the existence independent proper spheres, authority the within their the concluded, did, It as Madison that this States.” “nearly charge regulation the whole extended to interior States] people powers [the . . and to the ; . all not ex- government pressly delegated to the national are reserved.” Recently, Community in Id., at 76. Communications Co. (1982), recognized 40, 455 53 Boulder, v. U. S. Court exemption action from the antitrust laws was based the state sovereignty. Similarly, Transportation in Union v. on state finding although Long Co., S., 683, R. 455 U. Island applicable Railway railroad, Act to state-owned Labor say possess that the States unanimous was careful Court constitutionally sovereign powers. preserved (1982),
Again, Mississippi, in FERC v. Utility Reg- constitutionality determining the Public explicitly ulatory considered whether Act, Policies the Court sovereignty impinged violation on state the Act many represent only a few of the These Tenth Amendment. recognized only role, not but the Court has cases which g., sovereignty. importance, also, e. of state also Eddy Fry supra; Mitchell, & v. United Metcalf (1926);Coyle Oklahoma, U. S. 559 merely noted, are not Frankfurter the States As Justice arrangements” “shifting economic our coun- factor (1949) Cooper, (concurring), try, Kovacs v. 336 U. S. system also constitute a “coordinate element in the but governing the Framers for our Federal established supra, Cities, Union.” National at 849.
D today propounds In a view of federal- contrast, the Court pays only lipservice Al- to the role of the States. ism that says “unquestionably though 'retai[n] do it that the States sovereign authority,’” significant ante, a of at 549 measure (quoting Wyoming, supra, J., at 269 (Powell, EEOC dis- senting)), yet recognize specific of broad, it fails to areas sovereignty that the Framers intended the to retain. barely acknowledges Indeed, that the Tenth Court explicitly Amendment exists.16 That Amendment states that powers delegated “[t]he not to the United States . . . are re- language to the recasts served States.” The Court this to say sovereign powers “only the States that retain their to the not Constitution has them of their extent divested original powers powers and transferred those to the Federal only once, opinion mentions the Tenth The Court’s Amendment when parties put reargument it to the for these question in. cases. restates ante, See 536. at rephrasing Ante, Government.” 549. This is not dis- tinction without a difference; rather, Court’s reflects the unprecedented view that is free under the Com- sovereign merce Clause assume a State’s traditional power, judicial and to do so without review of its action. appears relegate Indeed, the Court’s view of federalism precisely opponents the States to the trivial role that they occupy.17 Constitution feared would spoke prevention, In National Cities, we of fire police protection, public “typical sanitation, health as performed by [the services] governments state and local discharging administering public their dual functions of furnishing public law and services.” atS., 851. Not only any concept are these activities remote normal from they epitomize interstate are commerce, also activities self-government. of local, concerns democratic n. emphasizing protect supra. the need to traditional governmental functions, we identified the kinds of activities governments engaged in state and local that affect the everyday people These lives citizens. are services that position evaluate, are in and in to understand and a democ- racy, right recognized have the We that “it oversee.18 As the amid argue, ability “the to fulfill their role the states in the dependent solely upon constitutional scheme is their effectiveness self-government.” instruments of Brief for State of California et al. as Amid Curiae 50. See also Brief Cities et al. as (a Amid Curiae every major organization on representing brief behalf *41 governments). the concerns of state and local recognized democracy Framers effective The most occurs government, people knowledge of where firsthand of local local levels with ready problems public responsible dealing access have more to officials (J. g., E. 1961); p. Federalist The with them. No. Cooke ed. 1961). (J. today p. No. Cooke This true as it Federalist ed. is as adopted. “Participation likely to was when the Constitution was be stages governmental frequent, more and exercised at different of a more activity level, regional organizations, at the local or in than at the state and [Additionally,] people actually proportion levels. of involved population greater, govern- from the total tends to be the lower the level of governments created to are such as these which functions governments are provide and local ...” and that States perform them. than the National Government to better able S., at 851. approved Na- that the standard The Court maintains principles of democratic “disserves tional Cities of reaching self-governance.” conclu- In this at 547. Ante, only myopically persons elected to sion, to the Court looks entirely disregards positions in It the Federal Government. self-government the far more effective role of democratic realistically compare at the state local levels. One must and governments operation local with that of the state and legislation Federal Federal is drafted Government. congressional primarily In of the committees. the staffs of the hundreds of bills introduced at each session view many virtually complexity them, it is and the legislators impossible be for even the conscientious to most many truly Federal familiar of the statutes enacted. with customarily agencies departments to are authorized regulations. important more than the Often these are write original legislation, text of the statutes. As is true of largely by personnel. are drafted staff The adminis- these regulations enforcement of federal laws and tration and necessarily largely are in the hands of staff and civil service may employees. employees These have little or no knowl- edge and localities that will affected be regulations they responsible. the statutes and for which are any they hardly responsive case, are as accessible and course, ment, this, approximates participation better the citizen ACIR, Participation System 95 ideal.” in the American Federal Citizen Moreover, years numerous we have witnessed recent the rise of special sophisticated lobbying, groups engage interest and make campaign Congress. contributions to some substantial Members groups thought significant shaping influence in the These are have types legislation. Contrary view, enactment certain Court’s process” way unlikely safeguard is' “political that functions this 9, supra. sovereign rights n. of States and localities. See *42 analogous occupy positions as those who in state and local governments. drawing imply contrast,
In I this no criticism of these employees ultimately federal or the officials are in who charge. great majority The are conscientious and faithful My point simply to their duties. is of the members bureaucracy immense federal are not elected, know less traditionally about the services rendered and local- States inevitably responsive recipients ities, and are less of such legislatures, city services, than are state councils, boards of supervisors, and state local commissions, boards, and agencies. It is at these state and local levels—not Washington mistakenly as the so Court thinks —that “demo- self-government” exemplified. cratic is best
IV question presented The in these cases is whether the wages employees extension of the FLSA to the of hours city-owned system unconstitutionally impinges of a transit on sovereignty. sweeping fundamental state The Court’s hold- ing simply question far more does than answer this in the negative. overruling League today’s National Cities, opinion apparently authorizes federal control, under aus- pices of the Clause, Commerce over terms and conditions employment employees. all and local Thus, regulation, purposes rejects Court the distinc- public employers private tion between that had been carefully drawn National Cities. The Court’s misunderstanding, outright action reflects a if serious not an rejection, history country of the of our and the intention of the Framers of Constitution.19 of the Court Cities makes clear that opinion very system government impose of a federal essence “definite upon regulate limits activities power.” S., means of the States commerce 426 U. at 842. Fry v. United 542, 547, opinion also the Court’s n. 7 *43 578 approved balancing in National test
I return now to Long accepted Co., Island R. in Hodel, and Cities of Mississippi. supra. The Court 5,n. and FERC v. is in “federal interest does not find these cases that the demonstrably greater.” S., J., U. at (Blackmun, finding concurring). for the made, No such could have been compelling. impact The financial on interest is States state wages, displacing hours, their control over and localities regulations, pensions, relations their overtime and labor -with unanticipated, employees serious, could have as well as ef- budgeting, levying planning, and the on state and local fects League Cities, in National of taxes.20 As we said employment of state control of the terms and conditions of inevitably “displaces policies regarding employees also delivery [States] in of those the manner which governmental will structure require.” Id., services that citizens at 847. emphasizes municipal operation The Court of an intra- city system relatively mass transit is new in the life our country. type example It nevertheless is classic of the traditionally provided by government. It service local is indistinguishable principle It from local definition. providing maintaining streets, the traditional services public lighting, sewerage sys- water, traffic control, precisely are tems.21 Services this kind those with which “familiarly minutely citizens are more conversant.” The 1961). (J. p. Federalist No. Cooke ed. State and intimately local officials course must be familiar with these quality to their as services and sensitive well cost. Such Wirtz, Maryland Douglas As Justice his dissent observed S., “disrupt extension of the FLSA to the could the fiscal U. autonomy policy regulation threaten States and their of health and education.” 21 Long R. Island Co. the unanimous Court recognized that “[t]his emphasis governmental Court’s on traditional functions and traditional aspects impose sovereignty of state was not meant a static historical generally regulation.” view state functions immune from federal at 686. S.. press officials also know that their constituents and respond adequacy, distribution, to the fair and cost of these services. It is this kind of state and local control and accountability that the Framers understood would insure *44 vitality preservation system and that of the federal explicitly League requires. Constitution National of Cities, S.,U. at 847-852.
V
Although
purports
opinion
recognize
that
Court’s
to
sovereign power,
identify
the States retain some
it
not
does
single aspect
even a
of state
that would remain
justify
when the Commerce Clause is invoked to
federal
regulation.
(1968),
Maryland
Wirtz,
IAs view the Court’s the basic decision precepts system limiting of our and the constitutional judicial role of I review, dissent. Rehnquist,
Justice dissenting. I both Justice Powell’s and Justice O’Connor’s join Justice Powell’s reference to dissents. thoughtful Cities test” “balancing approved case, not identical with that which language act under its commerce recognized Congress could not on certain fundamental infringe aspects power separate that are essential to “the States’ sovereignty test, existence.” Nor is either or JUSTICE independent congruent suggested precisely approach, with O’Connor’s spoke he of a bal- views in when Justice Blackmun’s power ancing approach in areas not outlaw federal which did demonstrably greater.” But the federal interest is “where judgment any approaches in these under one of these on I not think incumbent affirmed, cases should be and do points spell further the fine those us dissent to out again principle a I in time command will, confident, am support majority of this Court. O’Connor, Justice whom Justice Powell with Rehnquist join, dissenting. Justice today surveys
The Court the battle scene federalism prefer I sounds retreat. Like would Justice, Powell,. very and, least, at the render a little aid to the hold field *45 opinion. join I wounded. I also write Justice Powell's separately my disagreement to note fundamental with the majority’s duty views of federalism and the of this Court. Usery, The Court overrules National Cities (1976), grounds on that it is not “faithful to society.” Ante, 546. role of federalism a democratic system,” concludes, “The “is essence of our federal the Court authority open that within the realm of left to them under the equally engage Constitution, must be free to States any activity citizens choose for that their the common weal. ...” Cities to Ibid. National is held be inconsistent with narrow view federalism because this attempts protect only aspects to those of state fundamental sovereignty separate that are essential to the States’ independent protecting all state existence, rather than “equally.” activities my view,
In federalism to the weak cannot be reduced by today. majority distilled There is “essence” more to the nature than of the constraints can federalism be imposed open in “the on the States realm of left to by them The central issue of federalism, the Constitution.” any by open is course, whether realm is left to the States any
the Constitution —whether remains in area which State may act free of federal interference. “The issue ... system any any legal whether the federal substance, has core right of constitutional Black, that courts will enforce.” C. (1963). Perspectives in The true Constitutional Law 30 “essence” of federalism is as States have legitimate interests which the is bound National Government respect Younger though supreme. even its laws are Harris, If federalism conceived so carefully and so cultivated our Constitu- the Framers of meaningful, tion is to remain Court cannot abdicate its this responsibility constitutional the Federal Govern- to oversee compliance duty respect legitimate ment’s with its interests the States. emergence integrated
Due to the of an and industrialized economy, required has national this Court been to examine breathtaking expansion powers and review a of Con- gress. doing correctly perceived so the Court that the our Framers of Constitution intended to have suffi- power problems. cient But the address national Framers single-minded. not were is animated an Constitution array Wyoming, intentions. EEOC v. 460 U. S. (1983) surely dissenting). J., 265-266 as Just (Powell, capable envisioned a National the Framers Government *46 they problems, republic solving a also envisioned national power by only vitality the diffusion of not whose was assured among Government, the Federal but also the branches between and the the Government States. FERC Federal (1982) Mississippi, 742, J., 456 U. (O’Connor, dissenting). century these not the 18th intentions did yet every technology because had not local conflict converted emerged, problem A into a conflict national one. has now today rather reconcile and the Court retreats than an effective dual concerns federalism and Constitution’s power. commerce for fed- do to recall the constitutional basis
We would well development power which eralism and the of the commerce displace does has come to it. The text of the Constitution scope authority precise other than to not define the powers specify, Amendment, that the not dele- the Tenth by gated Constitution reserved to the United are Framers, however, In the view of the this did to the States. powers authority defenseless; or not leave state weak delegated after were “few and all, to the United 1961). (J. p. defined.” The Federalist No. 313 Cooke ed. 45, sphere The Framers’ comments indicate that the of state activity significant one, was to be a as Justice Powell’s opinion clearly demonstrates, ante at 570-572. The States greatest were to retain over local those concerns importance people. relevance and to the The Federalist (J. 1961). pp. 17, No. 106-108 Cooke ed. This division of authority, according produce would efficient Madison, government protect rights people: of the single power by republic,
“In a all the surrendered people, single is submitted to the administration of a government; by usurpations guarded against are government separate of the division into distinct and departments. compound republic In the America, power people, surrendered is first divided governments, portion between two distinct and then the among separate each, allotted to subdivided distinct and departments. security Hence double arises rights people. governments The different will other; controul each at the same time that each will be pp. controuled itself.” The Federalist No. 350- (J. 1961). 351 Cooke ed. Nagel, Federalism as a Fundamental Value: National Perspective, of Cities S. Ct. Rev. 88. powers delegated
Of course, one the “few and defined” power regulatejCom- to the National was the “To *47 foreign among Nations, merce with and the several and with the Indian Tribes.” Const., I, § 8, U. S. Art. perceived power cl. 3. The Framers the interstate commerce important expected to be limited, but and that it would primarily exclusively be used if not to remove interstate regulate large-scale tariffs and to maritime affairs and mer enterprise. Abel, cantile The Commerce Clause the Contemporary Constitutional Convention and Comment, perception 25 Minn. L. Rev. This of a narrow power important suggests commerce not because it power today. narrowly the commerce should be as construed explains why Rather, it Framers the could believe the significant Constitution assured even powers, range including power, bestowed a the commerce Congress. rep on In an era when interstate commerce activity tiny goods a of economic and resented fraction most produced and home, and were consumed close to services power range left broad interstate commerce of activities Congress. beyond the reach of decades since in Constitution, ratification activity steadily expanded.
terstate economic has Indus coupled transportation and trialization, with advances economy in has created a national which communications, activity occurring virtually every within the borders of a expansion integration plays part. State economy brought expansion with it a national coordinate problems. scope of national This Court has been increas generous interpretation power ingly in its commerce primarily Congress, to assure that the National Government problems. be able to deal economic with national would Laughlin significantly, in NLRB Jones & Court Most (1937), Corp., Darby, United States v. Steel (1941), previous rejected interpretations its 312 U. S. stymied power legis had which New Deal of the commerce Laughlin Darby the notion & embraced lation. Jones regulate intrastate activities that affect can *48 regulate surely interstate as as it can commerce interstate directly. Subsequent indicate that Con- decisions commerce gress, only activity, regulate a rational needs in an order activity finding com- interstate that the affects for a basis Motel, States, Atlanta Inc. v. United merce. See Heart of (1964). particular if individual's Even a 379 U. S. perceptible activity reached interstate it can be effect, has no regulation activity through Congress of that class general long affects class, whole, as that considered as a Fry States, 421 commerce. v. United U. S. interstate (1975); Perez v. United power, expansion this of the commerce Con-
Incidental to gress given ability prior emer- has been an lacked the economy. virtually gence integrated of an national Because activity, every virtually every activity private like of a arguably Congress individual, “affects” commerce, interstate supplant significant sphere of can now the States from the activities envisioned for them the Framers. It is this changes Congress, workings context that recent the expanded such as the direct election of Senators and groups, ante, influence of national n. 9 interest see at dissenting), changes become relevant. These (Powell, J., may Congress gives weight well have lessened the to the legitimate As result, interests of States as States. a there gradually is now real risk that will erase power diffusion of between State and Nation on which efficiency vitality Framers based their faith Republic. our
It erroneous, be would however, conclude that Supreme Court was blind to the threat to when it federalism expanded power. expan- the commerce The Court based the authority Congress, through Necessary sion on the Proper Clause, “to resort to all means exercise of granted power appropriate plainly adapted which are permitted Darby, supra, to the end.” United States v. through reasoning activity 124. It is this that an intrastate “affecting” through interstate commerce can be reached power. commerce Thus, in United States v. Wrightwood
Dairy Co.,
United States v. Wrightwood Dairy Co. was heavily relied
upon by Wickard v. Filburn,
It is worth recalling the cited passage in McCulloch v.
Maryland,
It is not enough that the “end be legitimate”; the means to that end chosen Congress must not contravene spirit of the Constitution. many Thus of this Court’s decisions acknowledge that the means which power national is exer- cised must take into account concerns for state autonomy. g., See, e. Fry v. United supra, States, at 547, n. 7; New (Stone, (1946) 586-587 572, S.U. United v. York Corp., Laughlin Steel & Jones concurring); NLRB J.,C. [commerce] this scope of (“Undoubtedly, supra, system dual our light of considered be must power ef- embrace toas so extended be may not and government remote indirect so commerce upon interstate fects effectu- society, would complex our view them, embrace national is what between distinction ally obliterate govern- centralized completely create local what S.U. NLRB, Packing Co. Fruit Cruz ment”); Santa In- Sandalow, Constitutional also (1938). See 466-467 ques- (“The (1981) Rev. L. Mich. terpretation, *50 consistent is power of exercise the whether always, is tion, answered be can that question Constitution, entire the with of all relevant, they are far so account, taking into only over interpreted Constitution—as the which to values the might Congress example, For expression”). gives time— its chooses State location the that rationally conclude has Court the but commerce, interstate may affect capital from barred be nevertheless would Congress that suggested dele- of a exercise an such because location dictating that inherent sovereignty state the undermine would power gated S.U. Oklahoma, Coyle v. Amendment. Tenth its of exercise in the Congress Similarly, savings federal protect can powers spending taxing means by the sodo chooses it if but associations, loan associations loan savings and state quasi-public converting contra- held has Court associations, into conver- because the powers reserved venes reach power necessary exercise reasonably anot is sion Assn. Savings Loan & Federal Hopkins end. desired language operative (1935). The S. Cleary, 296 consistent: is principle underlying varies, but cases these assessing means factor relevant autonomy a powers. its exercises which This principle requires the Court to enforce affirmative limits on federal regulation of the States to complement the judicially crafted expansion of the interstate commerce power. National League Cities Usery represented an attempt to define such limits. The Court today rejects Cities and washes its hands of all efforts protect the States. In the process, the opines Court unwarranted federal encroachments on state authority are and will remain possibilities “‘horrible that never happen in the real world.”’ Ante, at 556, quoting New York v. United States, supra, at (opinion J.). Frankfurter, There is ample reason to believe to the contrary.
The last two decades have seen an unprecedented growth of federal regulatory activity, as the majority itself acknowl- edges. Ante, at 544-545, n. 10. In 1954, one could still speak of a “burden persuasion on those favoring national intervention” in asserting that “National action has . . . always regarded been as exceptional in our polity, an intru- sion justified to be by some necessity, special rather than the ordinary case.” Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 Colum. L. Rev. *51 (1954). 544-545 Today, as federal legislation and coer- grant cive programs have expanded to embrace innumerable activities that were once viewed as local, the burden of persuasion has surely shifted, and the extraordinary has become ordinary. See Engdahl, Sense and Nonsense About State Immunity, 2 Constitutional Commentary (1985). 93 For example, recently the Federal Government has, with this Court’s blessing, undertaken to tell the States the age at which they can retire their law enforcement officers, and the regulatory standards, procedures, and even the agenda which their utilities commissions must consider and follow. See EEOC v. Wyoming, 460 U. S. 226 (1983);FERC v. Mississippi, 456 U. S. political The process activ- state on encroachments these against protected not has ability State’s aon impinge directly they though even ities, of abandonment theWith laws. its enforce make to the between stands that all Cities, League National the is Congress sovereignty state remaining essentials self-restraint. econ- national integrated an in federalism problems The holding than resolution responsible more capable omy are that from apart status no retain States as States the proper retain. them let to chooses Congress which a autonomy as state weighing in lies suggest, I resolution, by which means the interpreting when balance the factor States. as the authority on its exercise can Congress congressional validity of assessing the insufficient, is It regulation ask power, commerce the pursuant State aof enforced if valid be would regulation same only whether reasoning, embodied That party. private a against Con our spirit with inconsistent is opinion, majority regu being is State a relevant remains It stitution. case every recent Cities League of National as lated, Transpor supra; Wyoming, v. EEOC recognized. have 678, S. U. Co., R. Long Island v. Union tation Assn., Mining Recl. & Virginia Surface Hodel (1982); Cities, League of (1981); 287-288 S. U. concerned, Constitution far As S., 841-846. U. litigant. private any with equated be not should State a (Blackmun, (1979) S. Hall, Nevada Cf. a treat court ability state a (criticizing dissenting) J., Instead, litigant). private differently than no State sister federal component essential anis autonomy State of a means assessing ignored autonomy is If ism. then commerce, affecting matters regulates which set simply because irrelevant becomes federalism commerce such *52 reach beyond remaining activities Ante, 545. negligible.” be “may well power bright craft Court this difficult been has It by National protected autonomy scope of fining the League Cities. Such difficultyis to expected be whenever constitutional concerns as important as federalism and the ef- fectiveness of the power commerce come into conflict. Re- gardless of the difficulty, it is and will remain duty of this Court to reconcile these concerns in the final instance. That the Court shuns the task today by appealing to the “essence of federalism” provide can scant comfort to those who believe our system requires something more than a unitary, government. centralized I would not shirk the duty ac- knowledged by National League Cities and its progeny, and I share Justice Rehnquist’s belief that this Court will again time assume its constitutional responsibility. II respectfully dissent.