|National League of Cities v. Usery
[ Rehnquist ]
[ Blackmun ]
[ Brennan ]
[ Stevens ]
National League of Cities v. Usery
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
MR. JUSTICE REHNQUIST delivered the opinion of the Court.
Nearly 40 year ago, Congress enacted the Fair Labor Standards Act, [n1] and required employer covered by the Act to pay their employees a minimum hourly wage [n2] and to pay them at one and one-half time their regular [p836] rate of pay for hours worked in excess of 40 during a workweek. [n3] By this Act, covered employers were required to keep certain records to aid in the enforcement of the Act, [n4] and to comply with specified child labor standards. [n5] This Court unanimously upheld the Act as a valid exercise of congressional authority under the commerce power in United States v. Darby, 312 U.S. 100 (1941), observing:
Whatever their motive and purpose, regulations of commerce which do not infringe some constitutional prohibition are within the plenary power conferred on Congress by the Commerce Clause.
Id. at 115.
The original Fair Labor Standards Act passed in 1938 specifically excluded the States and their political subdivisions from its coverage. [n6] In 1974, however, Congress enacted the most recent of a series of broadening amendments to the Act. By these amendments, Congress has extended the minimum wage and maximum hour provisions to almost all public employees employed by the States and by their various political subdivisions. Appellants in these cases include individual cities and States, the National League of Cities, and the National Governors' Conference; [n7] they brought an action in the District [p837] Court for the District of Columbia which challenged the validity of the 1974 amendments. They asserted, in effect, that, when Congress sought to apply the Fair Labor Standards Act provisions virtually across the board to employees of state and municipal governments it "infringed a constitutional prohibition" running in favor of the States as states. The gist of their complaint was not that the conditions of employment of such public employees were beyond the scope of the commerce power had those employees been employed in the private sector, but that the established constitutional doctrine of intergovernmental immunity consistently recognized in a long series of our cases affirmatively prevented the exercise of this authority in the manner which Congress chose in the 1974 amendments.
In a series of amendments beginning in 1961, Congress began to extend the provisions of the Fair Labor Standards Act to some types of public employees. The 1961 amendments to the Act [n8] extended its coverage to persons who were employed in "enterprises" engaged in commerce or in the production of goods for commerce. [n9] And in 1966, with the amendment of the definition of employers under the Act, the exemption heretofore extended to the States and their political subdivisions was [p838] removed with respect to employees of state hospitals, institutions, and schools. [n10] We nevertheless sustained the validity of the combined effect of these two amendments in Maryland v. Wirtz, 392 U.S. 183 (1968).
In 1974, Congress again broadened the coverage of the Act, 88 Stat. 55. The definition of "employer" in the Act now specifically "includes a public agency," 29 U.S.C. § 203(d) (1970 ed., Supp. IV). In addition, the critical definition of "[e]nterprise[s] engaged in commerce or in the production of goods for commerce" was expanded to encompass "an activity of a public agency," and goes on to specify that
[t]he employees of an enterprise which is a public agency shall for purposes of this subsection be deemed to be employees engaged in commerce, or in the production of goods for commerce, or employees handling, selling, or otherwise working on goods or materials that have been moved in or produced for commerce.
29 U.S.C. § 203(s)(5) (1970 ed., Supp. IV). Under the amendments, "[p]ublic agency" is, in turn, defined as including
the Government of the United States; the government of a State or political subdivision thereof; any agency of the United States (including the United States Postal Service and Postal Rate Commission), a State, or a political subdivision of a State; or any interstate governmental agency.
29 U.S.C. § 203 (x) (1970 ed., Supp. IV). By its 1974 amendments, then, Congress has now entirely removed the exemption previously afforded States and their political subdivisions, substituting only the Act's general exemption for executive, administrative, or professional [p839] personnel, 29 U.S.C. § 213(a)(1), which is supplemented by provisions excluding from the Act's coverage those individuals holding public elective office or serving such an officeholder in one of several specific capacities. 29 U.S.C. § 203(e)(2)(C) (1970 ed., Supp. IV). The Act thus imposes upon almost all public employment the minimum wage and maximum hour requirements previously restricted to employees engaged in interstate commerce. These requirements are essentially identical to those imposed upon private employers, although the Act does attempt to make some provision for public employment relationships which are without counterpart in the private sector, such as those presented by fire protection and law enforcement personnel. See 29 U.S.C. § 207(k) (1970 ed., Supp. IV).
Challenging these 1974 amendments in the District Court, appellants sought both declaratory and injunctive relief against the amendments' application to them, and a three-judge court was accordingly convened pursuant to 28 U.S.C. § 2282. That court, after hearing argument on the law from the parties, granted appellee Secretary of Labor's motion to dismiss the complaint for failure to state a claim upon which relief might be granted. The District Court stated it was "troubled" by appellants' contentions that the amendments would intrude upon the States' performance of essential governmental functions. The court went on to say that it considered their contentions
substantial and that it may well be that the Supreme Court will feel it appropriate to draw back from the far-reaching implications of [Maryland v. Wirtz, supra], but that is a decision that only the Supreme Court can make, and, as a Federal district court ,we feel obliged to apply the Wirtz opinion as it stands.
National League of Cities v. Brennan, 406 F.Supp. 826, 828 (DC 1974). [p840]
We noted probable jurisdiction in order to consider the important questions recognized by the District Court. 420 U.S. 906 (1975). [n11] We agree with the District Court that the appellants' contentions are substantial. Indeed, upon full consideration of the question, we have decided that the "far-reaching implications" of Wirtz should be overruled, and that the judgment of the District Court must be reversed.
It is established beyond peradventure that the Commerce Clause of Art. I of the Constitution is a grant of plenary authority to Congress. That authority is, in the words of Mr. Chief Justice Marshall in Gibbons v. Ogden, 9 Wheat. 1 (1824), "the power to regulate; that is, to prescribe the rule by which commerce is to be governed." Id. at 196.
When considering the validity of asserted applications of this power to wholly private activity, the Court has made it clear that,
[e]ven activity that is purely intrastate in character may be regulated by Congress where the activity, combined with like conduct by others similarly situated, affects commerce among the States or with foreign nations.
Fry v. United States, 421 U.S. 542, 647 (1975). Congressional power over areas of private endeavor, even when its exercise may preempt express state law determinations contrary to the result which has commended itself to the collective wisdom of Congress, has been held to be limited only by the requirement that "the means chosen by [Congress] must be reasonably adapted to the end permitted by the Constitution." Heart of Atlanta Motel v. United States, 379 U.S. 241, 262(1964). [p841]
Appellants in no way challenge these decisions establishing the breadth of authority granted Congress under the commerce power. Their contention, to the contrary, is that, when Congress seeks to regulate directly the activities of States as public employers, it transgresses an affirmative limitation on the exercise of its power akin to other commerce power affirmative limitations contained in the Constitution. Congressional enactments which may be fully within the grant of legislative authority contained in the Commerce Clause may nonetheless be invalid because found to offend against the right to trial by jury contained in the Sixth Amendment, United States v. Jackson, 390 U.S. 570 (1968), or the Due Process Clause of the Fifth Amendment, Leary v. United States, 395 U.S. 6 (1969). Appellants' essential contention is that the 1974 amendments to the Act, while undoubtedly within the scope of the Commerce Clause, encounter a similar constitutional barrier because they are to be applied directly to the States and subdivisions of States as employers. [n12] [p842]
This Court has never doubted that there are limits upon the power of Congress to override state sovereignty, even when exercising its otherwise plenary powers to tax or to regulate commerce which are conferred by Art. I of the Constitution. In Wirtz, for example, the Court took care to assure the appellants that it had "ample power to prevent . . . ‘the utter destruction of the State as a sovereign political entity,'" which they feared. 392 U.S. at 196. Appellee Secretary in this case, both in his brief and upon oral argument, has agreed that our federal system of government imposes definite limits upon the authority of Congress to regulate the activities of the States as States by means of the commerce power. See, e.g., Brief for Appellee 30-41; Tr. of Oral Arg. 39-43. In Fry, supra, the Court recognized that an express declaration of this limitation is found in the Tenth Amendment:
While the Tenth Amendment has been characterized as a "truism," stating merely that "all is retained which has not been surrendered," United States v. [p843] Darby, 312 U.S. 100, 124 (1941), it is not without significance. The Amendment expressly declares the constitutional policy that Congress may not exercise power in a fashion that impairs the States' integrity or their ability to function effectively in a federal system.
421 U.S. at 547 n. 7.
In New York v. United States, 326 U.S. 572 (1946), Mr. Chief Justice Stone, speaking for four Members of an eight-Member Court [n13] in rejecting the proposition that Congress could impose taxes on the States so long as it did so in a nondiscriminatory manner, observed:
A State may, like a private individual, own real property and receive income. But, in view of our former decisions, we could hardly say that a general nondiscriminatory real estate tax (apportioned), or an income tax laid upon citizens and States alike, could be constitutionally applied to the State's capitol, its State-house, its public school houses, public parks, or its revenues from taxes or school lands, even though all real property and all income of the citizen is taxed.
The expressions in these more recent cases trace back to earlier decisions of this Court recognizing the essential role of the States in our federal system of government. Mr. Chief Justice Chase, perhaps because of the particular time at which he occupied that office, had occasion more than once to speak for the Court on this point. In Texas v. White, 7 Wall. 700, 725 (1869), he declared that "[t]he Constitution, in all its provisions, look to an indestructible Union, composed of indestructible States." In Lane County v. Oregon, 7 Wall. 71 (1869), his opinion for the Court said:
Both the States and the United States existed before the Constitution. The people, through that instrument, established a more perfect union by substituting a national government, acting, with ample power, directly upon the citizens, instead of the Confederate government, which acted with powers, greatly restricted, only upon the States. But, in many articles of the Constitution, the necessary existence of the States, and, within their proper spheres, the independent authority of the States, is distinctly recognized.
Id. at 76.
In Metcalf & Eddy v. Mitchell, 269 U.S. 514 (1926), the Court likewise observed that "neither government may destroy the other nor curtail in any substantial manner the exercise of its powers." Id. at 523.
Appellee Secretary argues that the cases in which this Court has upheld sweeping exercises of authority by Congress, even though those exercises preempted state regulation [p845] of the private sector, have already curtailed the sovereignty of the States quite as much as the 1974 amendments to the Fair Labor Standards Act. We do not agree. It is one thing to recognize the authority of Congress to enact laws regulating individual businesses necessarily subject to the dual sovereignty of the government of the Nation and of the State in which they reside. It is quite another to uphold a similar exercise of congressional authority directed not to private citizens, but to the States as States. We have repeatedly recognized that there are attributes of sovereignty attaching to every state government which may not be impaired by Congress, not because Congress may lack an affirmative grant of legislative authority to reach the matter, but because the Constitution prohibits it from exercising the authority in that manner. In Coyle v Oklahoma, 221 U.S. 559 (1911), the Court gave this example of such an attribute:
The power to locate its own seat of government and to determine when and how it shall be changed from one place to another, and to appropriate its own public funds for that purpose, are essentially and peculiarly state powers. That one of the original thirteen States could now be shorn of such powers by an act of Congress would not be for a moment entertained.
Id. at 565.
One undoubted attribute of state sovereignty is the States' power to determine the wages which shall be paid to those whom they employ in order to carry out their governmental functions, what hours those persons will work, and what compensation will be provided where these employees may be called upon to work overtime. The question we must resolve here, then, is whether these determinations are "‘functions essential to separate and independent existence,'" id. at 580, quoting from Lane County v. Oregon, supra, at 76, so that Congress [p846] may not abrogate the States' otherwise plenary authority to make them.
In their complaint, appellants advanced estimates of substantial costs which will be imposed upon them by the 1974 amendments. Since the District Court dismissed their complaint, we take its well pleaded allegations as true, although it appears from appellee's submissions in the District Court and in this Court that resolution of the factual disputes as to the effect of the amendments is not critical to our disposition of the case.
Judged solely in terms of increased costs in dollars, these allegation show a significant impact on the functioning of the governmental bodies involved. The Metropolitan Government of Nashville and Davidson County, Tenn. for example, asserted that the Act will increase its costs of providing essential police and fire protection, without any increase in service or in current salary levels, by $938,000 per year. Cape Girardeau, Mo., estimated that its annual budget for fire protection may have to be increased by anywhere from $250,000 to $400,000 over the current figure of $350,000. The State of Arizona alleged that the annual additional expenditures which will be required if it is to continue to provide essential state services may total $2.5 million. The State of California, which must devote significant portions of its budget to fire suppression endeavors, estimated that application of the Act to its employment practices will necessitate an increase in its budget of between $8 million and $16 million.
Increased costs are not, of course, the only adverse effects which compliance with the Act will visit upon state and local governments, and, in turn, upon the citizens who depend upon those governments. In its complaint in intervention, for example, California asserted that it could not comply with the overtime costs (approximately [p847] $750,000 per year) which the Act required to be paid to California Highway Patrol cadets during their academy training program. California reported that it had thus been forced to reduce its academy training program from 2,080 hours to only 960 hours, a compromise undoubtedly of substantial importance to those whose safety and welfare may depend upon the preparedness of the California Highway Patrol.
This type of forced relinquishment of important governmental activities is further reflected in the complaint's allegation that the city of Inglewood, Cal., has been forced to curtail its affirmative action program for providing employment opportunities for men and women interested in a career in law enforcement. The Inglewood police department has abolished a program for police trainees who split their week between on-the-job training and the classroom. The city could not abrogate its contractual obligations to these trainees, and it concluded that compliance with the Act in these circumstances was too financially burdensome to permit continuance of the classroom program. The city of Clovis, Cal., has been put to a similar choice regarding an internship program it was running in cooperation with a California State university. According to the complaint, because the interns' compensation brings them within the purview of the Act, the city must decide whether to eliminate the program entirely or to substantially reduce its beneficial aspects by doing away with any pay for the interns.
Quite apart from the substantial costs imposed upon the States and their political subdivisions, the Act displaces state policies regarding the manner in which they will structure delivery of those governmental service which their citizens require. The Act, speaking directly to the States qua States, requires that they shall pay [p848] all but an extremely limited minority of their employee the minimum wage rate currently chosen by Congress. It may well be that, as a matter of economic policy, it would be desirable that States, just as private employers, comply with these minimum wage requirement. But it cannot be gainsaid that the federal requirement directly supplant the considered policy choice of the States' elected officials and administrator as to how they wish to structure pay scale in state employment. The State might wish to employ persons with little or no training, or those who wish to work on a casual basis, or those who, for some other reason, do not possess minimum employment requirements, and pay them less than the federally prescribed minimum wage. It may wish to offer part-time or summer employment to teenagers at a figure less than the minimum wage, and, if unable to do so, may decline to offer such employment at all. But the Act would forbid such choice by the States. The only "discretion" left to them under the Act is either to attempt to increase their revenue to meet the additional financial burden imposed upon them by paying Congressionally prescribed wages to their existing complement of employees or to reduce that complement to a number which can be paid the federal minimum wage without increasing revenue. [n15]
This dilemma presented by the minimum wage restriction may seem not immediately different from that faced by private employers, who have long been covered by the Act and who must find ways to increase their gross income if they are to pay higher wages while [p849] maintaining current earnings. The difference, however, is that a State is not merely a factor in the "shifting economic arrangements" of the private sector of the economy, Kovacs v. Cooper, 336 U.S. 77, 95 (1949) (Frankfurter, J., concurring), but is itself a coordinate element in the system established by the Framers for governing our Federal Union.
The degree to which the FLSA amendments would interfere with traditional aspects of state sovereignty can be seen even more clearly upon examining the overtime requirements of the Act. The general effect of these provisions is to require the States to pay their employees at premium rates whenever their work exceeds a specified number of hours in a given period. The asserted reason for these provisions is to provide a financial disincentive upon using employees beyond the work period deemed appropriate by Congress. According to appellee:
This premium rate can be avoided if the [State] uses other employees to do the overtime work. This, in effect, tends to discourage overtime work and to spread employment, which is the result Congress intended.
Brief for Appellee 43. We do not doubt that this may be a salutary result, and that it has a sufficiently rational relationship to commerce to validate the application of the overtime provisions to private employers. But, like the minimum wage provisions, the vice of the Act as sought to be applied here is that it directly penalizes the States for choosing to hire governmental employees on terms different from those which Congress has sought to impose.
This congressionally imposed displacement of state decisions may substantially restructure traditional ways in which the local governments have arranged their affairs. Although, at this point, many of the actual effects [p850] under the proposed amendments remain a matter of some dispute among the parties, enough can be satisfactorily anticipated for an outline discussion of their general import. The requirement imposing premium rates upon any employment in excess of what Congress has decided is appropriate for a governmental employee's workweek, for example, appears likely to have the effect of coercing the States to structure work periods in some employment areas, such a police and fire protection, in a manner substantially different from practices which have long been commonly accepted among local governments of this Nation. In addition, appellee represents that the Act will require that the premium compensation for overtime worked must be paid in cash, rather than with compensatory time off, unless such compensatory time is taken in the same pay period. Supplemental Brief for Appellee 9-10; see Dunlop v. New Jersey, 522 F.2d 54 (CA3 1975), cert. pending sub nom. New Jersey v. Usery, No. 75-532. This, too, appears likely to be highly disruptive of accepted employment practices in many governmental areas where the demand for a number of employees to perform important jobs for extended periods on short notice can be both unpredictable and critical. Another example of congressional choices displacing those of the States in the area of what are, without doubt, essential governmental decisions may be found in the practice of using volunteer firemen, a source of manpower crucial to many of our smaller towns' existence. Under the regulations proposed by appellee, whether individuals are indeed "volunteers " rather than "employees" subject to the minimum wage provisions of the Act are questions to be decided in the courts. See Brief for Appellee 49, and n. 41. It goes without saying that provisions such as these contemplate a significant reduction of traditional [p851] volunteer assistance which has been, in the past, drawn on to complement the operation of many local governmental functions.
Our examination of the effect of the 1974 amendments, as sought to be extended to the States and their political subdivisions, satisfies us that both the minimum wage and the maximum hour provisions will impermissibly interfere with the integral governmental functions of these bodies. We earlier noted some disagreement between the parties regarding the precise effect the amendments will have in application. We do not believe particularized assessments of actual impact are crucial to resolution of the issue presented, however. For even if we accept appellee's assessments concerning the impact of the amendments, their application will nonetheless significantly alter or displace the States' abilities to structure employer employee relationships in such areas as fire prevention, police protection, sanitation, public health, and parks and recreation. These activities are typical of those performed by state and local governments in discharging their dual functions of administering the public law and furnishing public services. [n16] Indeed, it is functions such as these which governments are created to provide, services such as these which the States have traditionally afforded their citizens. If Congress may withdraw from the States the authority to make those fundamental employment decisions upon which their systems for performance of these functions must rest, we think there would be little left of the States' "‘separate and independent existence.'" Coyle, 221 U.S. at 580. Thus, even if appellants may have overestimated the effect which the Act will have upon [p852] their current levels and patterns of governmental activity, the dispositive factor is that Congress has attempted to exercise its Commerce Clause authority to prescribe minimum wages and maximum hours to be paid by the States in their capacities as sovereign governments. In so doing, Congress has sought to wield its power in a fashion that would impair the States' "ability to function effectively in a federal system," Fry, 421 U.S. at 547 n. 7. This exercise of congressional authority does not comport with the federal system of government embodied in the Constitution. We hold that, insofar as the challenged amendments operate to directly displace the States' freedom to structure integral operations in areas of traditional governmental functions, they are not within the authority granted Congress by Art. I, § 8, cl. 3. [n17]
One final matter requires our attention. Appellee has vigorously urged that we cannot, consistently with the Court's decisions in Maryland v. Wirtz, 392 U.S. 183 (1968), and Fry, supra, rule against him here. It is important to examine this contention so that it will be clear what we hold today, and what we do not.
With regard to Fry, we disagree with appellee. There, the Court held that the Economic Stabilization Act of 1970 was constitutional as applied to temporarily freeze the wages of state and local government employees. The Court expressly noted that the degree of intrusion upon the protected area of state sovereignty was in that case [p853] even less than that worked by the amendments to the FLSA which were before the Court in Wirtz. The Court recognized that the Economic Stabilization Act was "an emergency measure to counter severe inflation that threatened the national economy." 421 U.S. at 548.
We think our holding today quite consistent with Fry. The enactment at issue there was occasioned by an extremely serious problem which endangered the wellbeing of all the component parts of our federal system and which only collective action by the National Government might forestall. The means selected were carefully drafted so as not to interfere with the States' freedom beyond a very limited, specific period of time. The effect of the across-the-board freeze authorized by that Act, moreover, displaced no state choices as to how governmental operations should be structured, nor did it force the States to remake such choices themselves. Instead, it merely required that the wage scales and employment relationships which the States themselves had chosen be maintained during the period of the emergency. Finally, the Economic Stabilization Act operated to reduce the pressures upon state budgets, rather than increase them. These factors distinguish the statute in Fry from the provisions at issue here. The limits imposed upon the commerce power when Congress seeks to apply it to the States are not so inflexible as to preclude temporary enactments tailored to combat a national emergency.
[A]lthough an emergency may not call into life a power which has never lived, nevertheless emergency may afford a reason for the exertion of a living power already enjoyed.
Wilson v. New, 243 U.S. 332, 348 (1917).
With respect to the Court's decision in Wirtz, we reach a different conclusion. Both appellee and the District Court thought that decision required rejection of appellants' [p854] claims. Appellants, in turn, advance several arguments by which they seek to distinguish the facts before the Court in Wirtz from those presented by the 1974 amendments to the Act. There are undoubtedly factual distinctions between the two situations, but, in view of the conclusions expressed earlier in this opinion, we do not believe the reasoning in Wirtz may any longer be regarded as authoritative.
Wirtz relied heavily on the Court's decision in United States v. California, 297 U.S. 175 (1936). The opinion quotes the following language from that case:
"[We] look to the activities in which the states have traditionally engaged as marking the boundary of the restriction upon the federal taxing power. But there is no such limitation upon the plenary power to regulate commerce. The state can no more deny the power if its exercise has been authorized by Congress than can an individual." 297 U.S. at 185.
392 U.S. at 198.
But we have reaffirmed today that the States, as States, stand on a quite different footing from an individual or a corporation when challenging the exercise of Congress' power to regulate commerce. We think the dicta [n18] from [p855] United States v. California simply wrong. [n19] Congress may not exercise that power so as to force directly upon the States its choices as to how essential decision regarding the conduct of integral governmental functions are to be made. We agree that such assertions of power, if unchecked, would indeed, as Mr. Justice Douglas cautioned in his dissent in Wirtz, allow "the National Government [to] devour the essentials of state sovereignty," 392 U.S. at 205, and would therefore transgress the bounds of the authority granted Congress under the Commerce Clause. While there are obvious differences between the schools and hospitals involved in Wirtz, and the fire and police departments affected here, each provides an integral portion of those governmental services which the States and their political subdivisions have traditionally afforded their citizens. [n20] We are therefore persuaded that Wirtz must be overruled. [p856]
The judgment of the District Court is accordingly reversed, and the cases are remanded for further proceedings consistent with this opinion.
* Together with No. 74-879, California v. Usery, Secretary of Labor, also on appeal from the same court.
1. The Fair Labor Standards Act of 1938, 52 Stat. 1060, 29 U.S.C. § 201 et seq. (194 ed.).
2. § 206(a) (190 ed.).
3. § 207(a)(3) (1940 ed.).
4. § 211(c) (1940 ed.).
5. § 212 (1940 ed.).
6. Title 29 U.S.C. § 203(d) (1940 ed.):
"Employer" includes any person acting directly or indirectly in the interest of an employer in relation to an employee but shall not include the United States or any State or political subdivision of a State. . . .
7. Appellants in No. 74-878 are the National League of Cities, the National Governors' Conference, the States of Arizona, Indiana, Iowa, Maryland, Massachusetts, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, Oklahoma, Oregon, South Carolina, South Dakota, Texas, Utah, Washington, and Wyoming, the Metropolitan Government of Nashville and Davidson County, Tenn. and the cities of Cape Girardeau, Mo., Lompoc, Cal., and Salt Lake City, Utah. The appellant in No. 7879 is the State of California.
In view of the fact that the appellants include sovereign States and their political subdivisions to which application of the 1974 amendments is claimed to be unconstitutional, we need not consider whether the organizational appellants had standing to challenge the Act. See California Bankers Assn. v. Shultz, 416 U.S. 21, 14 15 (1974).
8. Pub.L. 87-30, 75 Stat. 65.
9. 29 U.S.C. §§ 203 (r), 203(8), 206(b), 207(a)(2) (1964 ed.).
10. 80 Stat. 831, 29 U.S.C. § 203(d) (1964 ed., Supp. II).
11. When the cases were not decided in October Term, 1974, they were set down for reargument, 421 U.S. 83 (175).
12. MR. JUSTICE BRENNAN's dissent intimates, post at 858, that guarantees of individual liberties are the only sort of constitutional restrictions which this Court will enforce as against congressional action. It reasons that
Congress is constituted of representatives in both Senate and House elected from the States. . . . Decisions upon the extent of federal intervention under the Commerce Clause into the affairs of the States are, in that sense, decisions of the States themselves.
Post at 876. Precisely what is meant by the phrase "are, in that sense, decisions of the States themselves" is not entirely clear from this language; it is indisputable that a common constituency of voters elects both a State's Governor and its two United States Senators. It is equally indisputable that, since the enactment of the Seventeenth Amendment, those Senators are not dependent upon state legislators for their election. But, in any event, the intimation which this reasoning is used to support is incorrect.
In Myers v. United States, 272 U.S. 52"]272 U.S. 52 (1926), the Court held that Congress could not, by law, limit the authority of the President to remove at will an officer of the Executive Branch appointed by him. In 272 U.S. 52 (1926), the Court held that Congress could not, by law, limit the authority of the President to remove at will an officer of the Executive Branch appointed by him. In Buckley v. Valeo, 424 U.S. 1 (1976), the Court held that Congress could not constitutionally require that members of the Federal Elections Commission be appointed by officers of the House of Representatives and of the Senate, and that all such appointments had to be made by the President. In each of these cases, an even stronger argument than that made in the dissent could be made to the effect that, since each of these bills had been signed by the President, the very officer who challenged them had consented to their becoming law, and it was therefore no concern of this Court that the law violated the Constitution. Just as the dissent contends that "the States are fully able to protect their own interests . . . ," post at 876, it could have been contended that the President, armed with the mandate of a national constituency and with the veto power, was able to protect his own interests. Nonetheless, in both cases, the laws were held unconstitutional because they trenched on the authority of the Executive Branch.
13. In quoting from the separate opinion of Mr. Justice Frankfurter in New York v. United States, 326 U.S. at 573, MR. JUSTICE BRENNAN fails to add that this opinion attracted only one other adherent. The separate opinion of Mr. Chief Justice Stone, on the other hand, was joined by three other Members of the Court. And the two dissenters advocated a position even more protective of state sovereignty than that advanced by Stone. See id. at 590-598 (Douglas, J., dissenting).
14. MR. JUSTICE BRENNAN suggests that
the Chief Justice was addressing not the question of a state sovereignty restraint upon the exercise of the commerce power, but rather the principle of implied immunity of the States and Federal Government from taxation by the other. . . .
Post at 863-864. The asserted distinction, however, escapes us. Surely the federal power to tax is no less a delegated power than is the commerce power: both find their genesis in Art. I, § 8. Nor can characterizing the limitation recognized upon the federal taxing power as an "implied immunity" obscure the fact that this "immunity" is derived from the sovereignty of the States and the concomitant barriers which such sovereignty presents to otherwise plenary federal authority.
15. The complaint recited that a number of appellants were prohibited by their State Constitution from incurring debts in excess of taxes for the current year. Those Constitutions also impose ceilings upon the percentage rates at which property might be taxed by those governmental units. App. 36-37.
16. These examples are obviously not an exhaustive catalogue of the numerous line and support activities which are well within the area of traditional operations of state and local governments.
17. We express no view as to whether different results might obtain if Congress seeks to affect integral operations of state governments by exercising authority granted it under other sections of the Constitution such as the spending power, Art. I, § 8, cl. 1, or § 5 of the Fourteenth Amendment.
18. The holding of United States v. California, as opposed to the language quoted in the text, is quit consistent with our holding today. There, California's activity to which the congressional command was directed was not in an area that the States have regarded as integral parts of their governmental activities. It was, on the contrary, the operation of a railroad engaged in "common carriage by rail in interstate commerce. . . ." 297 U.S. at 182.
For the same reasons, despite MR. JUSTICE BRENNAN's claims to the contrary, the holdings in Parden v. Terminal R. Co., 377 U.S. 184 (1964), and California v. Taylor, 353 U.S. 553 (1957), are likewise unimpaired by our decision today. It also seems appropriate to note that Case v. Bowles, 327 U.S. 92 (1946), has not been overruled as the dissent asserts. Indeed that decision, upon which our Brother heavily relies, has no direct application to the questions we consider today at all. For there the Court sustained an application of the Emergency Price Control Act to a sale of timber by the State of Washington, expressly noting that the
only question is whether the State's power to make the sales must be in subordination to the power of Congress to fix maximum prices in order to carry on war.
Id. at 102. The Court rejected the State's claim of immunity on the ground that sustaining it would impermissibly "impair a prime purpose of the Federal Government's establishment." Ibid. Nothing we say in this opinion addresses the scope of Congress' authority under its war power. Cf. n. 17, supra.
19. MR. JUSTICE BRENNAN's dissent leaves no doubt from its discussion, post at 876-878, that, in its view, Congress may, under its commerce power, deal with the States as States just as they might deal with private individuals. We venture to say that it is this conclusion, rather than the one we reach, which is, in the words of the dissent, a "startling restructuring of our federal system . . . ," post at 875. Even the appellee Secretary, defending the 1974 amendments in this Court, does not take so extreme a position.
20. As the denomination "political subdivision" implies, the local governmental units which Congress sought to bring within the Act derive their authority and power from their respective States. Interference with integral governmental services provided by such subordinate arms of a state government is therefore beyond the reach of congressional power under the Commerce Clause just as if such services were provided by the State itself.