Gregory v. Ashcroft (90-50), 501 U.S. 452 (1991)
HTML version
WordPerfect version
HTML version
WordPerfect version
HTML version
WordPerfect version
HTML version
WordPerfect version


No. 90-50


[June 20, 1991]

Justice White, with whom Justice Stevens joins, concurring in part, dissenting in part, and concurring in the judgment.

I agree with the majority that neither the ADEA nor the Equal Protection Clause prohibits Missouri's mandatory retirement provision as applied to petitioners, and I therefore concur in the judgment and in Parts I and III of the majority's opinion. I cannot agree, however, with the majority's reasoning in Part II of its opinion, which ignores several areas of well-established precedent and announces a rule that is likely to prove both unwise and infeasible. That the majority's analysis in Part II is completely unnecessary to the proper resolution of this case makes it all the more remarkable.


In addition to petitioners' equal protection claim, we granted certiorari to decide the following question:

"Whether appointed Missouri state court judges are `appointee[s] on the policymaking level' within the meaning of the Age Discrimination in Employment Act (`ADEA'), 28 U.S.C. 621-34 (1982 & Supp. V 1987), and therefore exempted from the ADEA's general prohibition of mandatory retirement and thus subject to the mandatory retirement provision of Article V, Section 26 of the Missouri Constitution." Pet. for Cert. i.

The majority, however, chooses not to resolve that issue of statutory construction. Instead, it holds that whether or not the ADEA can fairly be read to exclude state judges from its scope, "[w]e will not read the ADEA to cover state judges unless Congress has made it clear that judges are included." Ante, at 13 (emphasis in original). I cannot agree with this "plain statement" rule because it is unsupported by the decisions upon which the majority relies, contrary to our Tenth Amendment jurisprudence, and fundamentally unsound.

Among other things, the ADEA makes it "unlawful for an employer — (1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. 623(a). In 1974, Congress amended the definition of "employer" in the ADEA to include "a State or political subdivision of a State." 29 U.S.C. 630(b)(2). With that amendment, "there is no doubt what the intent of Congress was: to extend the application of the ADEA to the States." EEOC v. Wyoming, 460 U.S. 226, 244, n. 18 (1983).

The dispute in this case therefore is not whether Congress has outlawed age discrimination by the States. It clearly has. The only question is whether petitioners fall within the definition of "employee" in the Act, 630(f), which contains exceptions for elected officials and certain appointed officials. If petitioners are "employee[s]," Missouri's mandatory retirement provision clearly conflicts with the antidiscrimination provisions of the ADEA. Indeed, we have noted that the "policies and substantive provisions of the [ADEA] apply with especial force in the case of mandatory retirement provisions." Western Air Lines v. Criswell, 472 U.S. 400, 410 (1985). Pre-emption therefore is automatic, since "state law is pre-empted to the extent that it actually conflicts with federal law." Pacific Gas & Electric Co. v. State Energy Resources Conservation and Development Comm'n, 461 U.S. 190, 204 (1983). The majority's federalism concerns are irrelevant to such "actual conflict" pre-emption. " `The relative importance to the State of its own law is not material when there is a conflict with a valid federal law, for the Framers of our Constitution provided that the federal law must prevail.' " Fidelity Federal Savings & Loan Assn. v. De la Cuesta, 458 U.S. 141, 153 (1982), quoting Free v. Bland, 369 U.S. 663, 666 (1962).

While acknowledging this principle of federal legislative supremacy, see ante, at 6, the majority nevertheless imposes upon Congress a "plain statement" requirement. The majority claims to derive this requirement from the plain statement approach developed in our Eleventh Amendment cases, see, e. g., Atascadero State Hospital v. Scanlon, 473 U.S. 234, 243 (1985), and applied two Terms ago in Will v. Michigan Dept. of State Police, 491 U.S. 58, 65 (1989). The issue in those cases, however, was whether Congress intended a particular statute to extend to the States at all. In Atascadero, for example, the issue was whether States could be sued under 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794. Similarly, the issue in Will was whether States could be sued under 42 U.S.C. 1983. In the present case, by contrast, Congress has expressly extended the coverage of the ADEA to the States and their employees. Its intention to regulate age discrimination by States is thus "unmistakably clear in the language of the statute." Atasca dero, supra, at 242. See Davidson v. Board of Governors of State Colleges and Universities, 920 F. 2d. 441, 443 (CA7 1990) (ADEA satisfies "clear statement" requirement). The only dispute is over the precise details of the statute's application. We have never extended the plain statement approach that far, and the majority offers no compelling reason for doing so.

The majority also relies heavily on our cases addressing the constitutionality of state exclusion of aliens from public employment. See ante, at 7-9, 14-16. In those cases, we held that although restrictions based on alienage ordinarily are subject to strict scrutiny under the Equal Protection Clause, see Graham v. Richardson, 403 U.S. 365, 372 (1971), the scrutiny will be less demanding for exclusion of aliens "from positions intimately related to the process of democratic self-government." Bernal v. Fainter, 467 U.S. 216, 220 (1984). This narrow "political function" exception to the strict scrutiny standard is based on the "State's historical power to exclude aliens from participation in its democratic political institutions." Sugarman v. Dougall, 413 U.S. 634, 648 (1973).

It is difficult to see how the "political function" exception supports the majority's plain statement rule. First, the exception merely reflects a determination of the scope of the rights of aliens under the Equal Protection Clause. Reduced scrutiny is appropriate for certain political functions because "the right to govern is reserved to citizens." Foley v. Con nelie, 435 U.S. 291, 297 (1978); see also Sugarman, supra, at 648-649. This conclusion in no way establishes a method for interpreting rights that are statutorily created by Congress, such as the protection from age discrimination in the ADEA. Second, it is one thing to limit judicially-created scrutiny, and it is quite another to fashion a restraint on Congress' legislative authority, as does the majority; the latter is both counter-majoritarian and an intrusion on a co-equal branch of the federal government. Finally, the majority does not explicitly restrict its rule to "functions that go to the heart of representative government," id., at 647, and may in fact be extending it much further to all "state governmental functions." See ante, at 16.

The majority's plain statement rule is not only unprecedented, it directly contravenes our decisions in Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985), and South Carolina v. Baker, 485 U.S. 505 (1988). In those cases we made it clear "that States must find their protection from congressional regulation through the national political process, not through judicially defined spheres of unregulable state activity." Id., at 512. We also rejected as "unsound in principle and unworkable in practice" any test for state immunity that requires a judicial determination of which state activities are "traditional," "integral," or "necessary." Garcia, supra, at 546. The majority disregards those decisions in its attempt to carve out areas of state activity that will receive special protection from federal legislation.

The majority's approach is also unsound because it will serve only to confuse the law. First, the majority fails to explain the scope of its rule. Is the rule limited to federal regulation of the qualifications of state officials? See ante, at 10. Or does it apply more broadly to the regulation of any "state governmental functions"? See ante, at 16. Second, the majority does not explain its requirement that Congress' intent to regulate a particular state activity be "plain to anyone reading [the federal statute]." See ante, at 13. Does that mean that it is now improper to look to the purpose or history of a federal statute in determining the scope of the statute's limitations on state activities? If so, the majority's rule is completely inconsistent with our pre-emption jurisprudence. See, e. g., Hillsborough County v. Automated Medical Laboratories, Inc., 471 U.S. 707, 715 (1985) (pre-emption will be found where there is a "clear and manifest purpose" to displace state law; emphasis added). The vagueness of the majority's rule undoubtedly will lead States to assert that various federal statutes no longer apply to a wide variety of State activities if Congress has not expressly referred to those activities in the statute. Congress, in turn, will be forced to draft long and detailed lists of which particular state functions it meant to regulate.

The imposition of such a burden on Congress is particularly out of place in the context of the ADEA. Congress already has stated that all "individual[s] employed by any employer" are protected by the ADEA unless they are expressly excluded by one of the exceptions in the definition of "employee." See 29 U.S.C. 630(f). The majority, however, turns the statute on its head, holding that state judges are not protected by the ADEA because "Congress has [not] made it clear that judges are included." Ante, at 13 (emphasis in original). Cf. EEOC v. Wyoming, 460 U.S. 226 (1983), where we held that state game wardens are covered by the ADEA, even though such employees are not expressly included within the ADEA's scope.

The majority asserts that its plain statement rule is helpful in avoiding a "potential constitutional problem." Ante, at 10. It is far from clear, however, why there would be a constitutional problem if the ADEA applied to state judges, in light of our decisions in Garcia and Baker, discussed above. As long as "the national political process did not operate in a defective manner, the Tenth Amendment is not implicated." Baker, supra, at 512. There is no claim in this case that the political process by which the ADEA was extended to state employees was inadequate to protect the States from being "unduly burden[ed]" by the Federal Government. See Garcia, supra, at 556. In any event, as discussed below, a straightforward analysis of the ADEA's definition of "employee" reveals that the ADEA does not apply here. Thus, even if there were potential constitutional problems in extending the ADEA to state judges, the majority's proposed plain statement rule would not be necessary to avoid them in this case. Indeed, because this case can be decided purely on the basis of statutory interpretation, the majority's announcement of its plain statement rule, which purportedly is derived from constitutional principles, violates our general practice of avoiding the unnecessary resolution of constitutional issues.

My disagreement with the majority does not end with its unwarranted announcement of the plain statement rule. Even more disturbing is its treatment of Congress' power under 5 of the Fourteenth Amendment. See ante, at 1416. Section 5 provides that "[t]he Congress shall have power to enforce, by appropriate legislation, the provisions of this article." Despite that sweeping constitutional delegation of authority to Congress, the majority holds that its plain statement rule will apply with full force to legislation enacted to enforce the Fourteenth Amendment. The majority states: "In the face of . . . ambiguity, we will not attribute to Congress an intent to intrude on state governmental functions regardless of whether Congress acted pursuant to its Commerce Clause powers or 5 of the Fourteenth Amendment." Ante, at 16 (emphasis added). [n.1]

The majority's failure to recognize the special status of legislation enacted pursuant to 5 ignores that, unlike Congress' Commerce Clause power, "[w]hen Congress acts pursuant to 5, not only is it exercising legislative authority that is plenary within the terms of the constitutional grant, it is exercising that authority under one section of a constitutional Amendment whose other sections by their own terms embody limitations on state authority." Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976). Indeed, we have held that "principles of federalism that might otherwise be an obstacle to congressional authority are necessarily overridden by the power to enforce the Civil War Amendments `by appropriate legislation.' Those Amendments were specifically designed as an expansion of federal power and an intrusion on state sovereignty." City of Rome v. United States, 446 U.S. 156, 179 (1980); see also EEOC v. Wyoming, 460 U. S., at 243, n. 18.

The majority relies upon Pennhurst State School and Hospital v. Halderman, 451 U.S. 1 (1981), see ante, at 15-16, but that case does not support its approach. There, the Court merely stated that "we should not quickly attribute to Congress an unstated intent to act under its authority to enforce the Fourteenth Amendment." 451 U. S., at 16. In other words, the Pennhurst presumption was designed only to answer the question whether a particular piece of legislation was enacted pursuant to 5. That is very different from the majority's apparent holding that even when Congress is acting pursuant to 5, it nevertheless must specify the precise details of its enactment.

The majority's departures from established precedent are even more disturbing when it is realized, as discussed below, that this case can be affirmed based on simple statutory construction.


The statute at issue in this case is the ADEA's definition of "employee," which provides:

"The term `employee' means an individual employed by any employer except that the term `employee' shall not include any person elected to public office in any State or political subdivision of any State by the qualified voters thereof, or any person chosen by such officer to be on such officer's personal staff, or an appointee on the policymaking level or an immediate adviser with respect to the exercise of the constitutional or legal powers of the office. The exemption set forth in the preceding sentence shall not include employees subject to the civil service laws of a State government, governmental agency, or political subdivision." 29 U.S.C. 630(f).

A parsing of that definition reveals that it excludes from the definition of "employee" (and thus the coverage of the ADEA) four types of (non-civil service) state and local employees: (1) persons elected to public office; (2) the personal staff of elected officials; (3) persons appointed by elected officials to be on the policymaking level; and (4) the immediate advisers of elected officials with respect to the constitutional or legal powers of the officials' offices.

The question before us is whether petitioners fall within the third exception. Like the Court of Appeals, see 898 F. 2d 598, 600 (CA8 1990), I assume that petitioners, who were initially appointed to their positions by the Governor of Missouri, are "appointed" rather than "elected" within the meaning of the ADEA. For the reasons below, I also conclude that petitioners are "on the policymaking level." [n.2]

"Policy" is defined as "a definite course or method of action selected (as by a government, institution, group, or individual) from among alternatives and in the light of given conditions to guide and usu[ally] determine present and future decisions." Webster's Third New International Dictionary 1754 (1976). Applying that definition, it is clear that the decisionmaking engaged in by common-law judges, such as petitioners, places them "on the policymaking level." In resolving disputes, although judges do not operate with unconstrained discretion, they do choose "from among alternatives" and elaborate their choices in order "to guide and . . . determine present and future decisions." The quotation from Justice Holmes in the majority's opinion, see ante, at 12, is an eloquent description of the policymaking nature of the judicial function. Justice Cardozo also stated it well:

"Each [common-law judge] indeed is legislating within the limits of his competence. No doubt the limits for the judge are narrower. He legislates only between gaps. He fills the open spaces in the law. . . . [W]ithin the confines of these open spaces and those of precedent and tradition, choice moves with a freedom which stamps its action as creative. The law which is the resulting product is not found, but made." B. Cardozo, The Nature of the Judicial Process 113-115 (1921).

Moreover, it should be remembered that the statutory exception refers to appointees "on the policymaking level," not "policymaking employees." Thus, whether or not judges actually make policy, they certainly are on the same level as policymaking officials in other branches of government and therefore are covered by the exception. The degree of responsibility vested in judges, for example, is comparable to that of other officials that have been found by the lower courts to be on the policymaking level. See, e. g., EEOC v. Reno, 758 F. 2d 581 (CA11 1985) (assistant state attorney); EEOC v. Board of Trustees of Wayne Cty. Comm. Coll., 723 F. 2d 509 (CA6 1983) (president of community college).

Petitioners argue that the "appointee[s] on the policymaking level" exception should be construed to apply "only to persons who advise or work closely with the elected official that chose the appointee." Brief for Petitioners 18. In support of that claim, petitioners point out that the exception is "sandwiched" between the "personal staff" and "immediate adviser" exceptions in 630(f), and thus should be read as covering only similar employees.

Petitioners' premise, however, does not prove their conclusion. It is true that the placement of the "appointee" exception between the "personal staff" and "immediate adviser" exceptions suggests a similarity among the three. But the most obvious similarity is simply that each of the three sets of employees are connected in some way with elected officials: the first and third sets have a certain working relationship with elected officials, while the second is appointed by elected officials. There is no textual support for concluding that the second set must also have a close working relationship with elected officials. Indeed, such a reading would tend to make the "appointee" exception superfluous since the "personal staff" and "immediate adviser" exceptions would seem to cover most appointees who are in a close working relationship with elected officials.

Petitioners seek to rely on legislative history, but it does not help their position. There is little legislative history discussing the definition of "employee" in the ADEA, so petitioners point to the legislative history of the identical definition in Title VII, 42 U.S.C. 2000e(f). If anything, that history tends to confirm that the "appointee[s] on the policymaking level" exception was designed to exclude from the coverage of the ADEA all high-level appointments throughout state government structures, including judicial appointments.

For example, during the debates concerning the proposed extension of Title VII to the States, Senator Ervin repeatedly expressed his concern that the (unamended) definition of "employee" would be construed to reach those "persons who exercise the legislative, executive, and judicial powers of the States and political subdivisions of the States." 118 Cong. Rec. 1838 (1972) (emphasis added). Indeed, he expressly complained that "[t]here is not even an exception in the [unamended] bill to the effect that the EEOC will not have jurisdiction over . . . State judges, whether they are elected or appointed to office." Id., at 1677. Also relevant is Senator Taft's comment that, in order to respond to Senator Ervin's concerns, he was willing to agree to an exception not only for elected officials, but also for "those at the top decisionmaking levels in the executive and judicial branch as well." Id., at 1838.

The definition of "employee" subsequently was modified to exclude the four categories of employees discussed above. The Conference Committee that added the "appointee[s] on the policymaking level" exception made clear the separate nature of that exception:

"It is the intention of the conferees to exempt elected officials and members of their personal staffs, and persons appointed by such elected officials as advisors or to policymaking positions at the highest levels of the departments or agencies of State or local governments, such as cabinet officers, and persons with comparable responsibilities at the local level." H. R. Conf. Rep. No. 92899, pp. 15-16 (1972) (emphasis added).

The italicized "or" in that statement indicates, contrary to petitioners' argument, that appointed officials need not be advisers to be covered by the exception. Rather, it appears that "Congress intended two categories: policymakers, who need not be advisers; and advisers, who need not be policymakers." EEOC v. Massachusetts, 858 F. 2d 52, 56 (CA1 1988). This reading is confirmed by a statement by one of the House Managers, Representative Erlenborn, who explained that "[i]n the conference, an additional qualification was added, exempting those people appointed by officials at the State and local level in policymaking positions." 118 Cong. Rec., at 7567.

In addition, the phrase "the highest levels" in the Conference Report suggests that Congress' intent was to limit the exception "down the chain of command, and not so much across agencies or departments." EEOC v. Massachusetts, 858 F. 2d, at 56. I also agree with the First Circuit's conclusion that even lower court judges fall within the exception, because "each judge, as a separate and independent judicial officer, is at the very top of his particular "policymaking" chain of command, responding . . . only to a higher appellate court." Ibid.

For these reasons, I would hold that petitioners are excluded from the coverage of the ADEA because they are "appointee[s] on the policymaking level" under 29 U.S.C. 630(f). [n.3]

I join Parts I and III of the Court's opinion and concur in its judgment.


1 In EEOC v. Wyoming, 460 U.S. 226 (1983), we held that the extension of the ADEA to the States was a valid exercise of congressional power under the Commerce Clause. We left open, however, the issue whether it was also a valid exercise of Congress' power under 5 of the Fourteenth Amendment. Cf. Fitzpatrick v. Bitzer, 427 U.S. 445, 453, n. 9 (1976) (extension of Title VII to States was pursuant to Congress' 5 power). Although we need not resolve the issue in this case, I note that at least two Courts of Appeals have held that the ADEA was enacted pursuant to Congress' 5 power. See Heiar v. Crawford County, 746 F. 2d 1190, 1193-1194 (CA7 1984); Ramirez v. Puerto Rico Fire Service, 715 F. 2d 694, 700 (CA1 1983).

2 Most of the lower courts that have addressed the issue have concluded that appointed state judges fall within the "appointee[s] on the policymaking level" exception. See 898 F. 2d 598 (CA8 1990) (case below); EEOC v. Massachusetts, 858 F. 2d 52 (CA1 1988); Sabo v. Casey, 757 F. Supp. 587 (ED Pa. 1991); In re Stout, 521 Pa. 571, 559 A. 2d 489 (1989); see also EEOC v. Illinois, 721 F. Supp. 156 (ND Ill. 1989). But see EEOC v. Vermont, 904 F. 2d 794 (CA2 1990); Schlitz v. Virginia, 681 F. Supp. 330 (ED Va.), rev'd on other grounds, 854 F. 2d 43 (CA4 1988).

3 The dissent argues that we should defer to the EEOC's view regarding the scope of the "policymaking level" exception. See post, at 8-9. I disagree. The EEOC's position is not embodied in any formal issuance from the agency, such as a regulation, guideline, policy statement, or administrative adjudication. Instead, it is merely the EEOC's litigating position in recent lawsuits. Accordingly, it is entitled to little if any deference. See, e. g., Bowen v. Georgetown University Hospital, 488 U.S. 204, 212-213 (1988); St. Agnes Hospital v. Sullivan, 905 F. 2d 1563, 1568 (CADC 1990). Although the dissent does cite to an EEOC decision involving the policymaking exception in Title VII, see post, at 9, that decision did not state, even in dicta, that the exception is limited to those who work closely with elected officials. Rather, it merely stated that the exception applies to officials "on the highest levels of state or local government." CCH EEOC Decisions (1983) 6725. In any event, the EEOC's position is, for the reasons discussed above, inconsistent with the plain language of the statute at issue. "[N]o deference is due to agency interpretations at odds with the plain language of the statute itself." Ohio Public Employees Retirement System v. Betts, 492 U.S. 158, 171 (1989).