The opinion
NORTHROP, District Judge
(dissenting).
I am compelled to dissent from the conclusions reached by Judge Winter and Judge Thomsen that this Act is not unconstitutional.
The majority recognizes that this is a case of first impression involving a conflict between Congress’ power under the Commerce Clause and state sovereignty as recognized in our Constitution.
Judge Winter concludes that the power of Congress under the Commerce Clause has no boundaries and Congressional preemption in this field is supreme, it mattering not that it would destroy the constitutionally recognized sovereignty of the states. To put it simply, he holds that from the beginning federalism, as embodied in our Constitution, existed by the will of Congress rather than by the will of the people. No case has gone that far. It is supported neither by history nor by the structure of the Constitution.
In his concurring opinion, Judge Thomsen recognizes that there is implicit within the concept of federalism embodied in the Constitution a limitation on the power of Congress under the Commerce Clause. However, he feels that the minimum wage provisions of the Act as they affect the states do not transgress the limitation imposed by the Constitution upon Congress. But he expresses serious doubts as to the constitutionality of the overtime provision of the Act as it affects the states. Nevertheless he concludes that question is not yet ripe for adjudication. As to it, he would wait until the Department of Labor promulgates and applies its regulations to the states and decide constitutionality on a case-by-ease basis.
Although I agree with Judge Thomsen’s analysis of the pertinent cases and some of his reasoning as to the effect *853 of the amendment on the states, I cannot agree with his conclusions. Unless the Department of Labor emasculates the Act, there will be no way for this or some other court to avoid the constitutional question posed herein.
The question before us is whether this Congressional exercise of power under the Commerce Clause constitutes an undue infringement upon the “performance of [the state’s] function as a government which the Constitution recognizes as sovereign.”
This quotation is from Chief Justice Stone’s opinion in New York v. United States, 326 U.S. 572, at 588 , 66 S.Ct. 310, at 317 , in reference to the limits on the taxing power of Congress. Although it is recognized that the power under the Commerce Clause may be broader, it must have some limits. The language of Chief Justice Stone suggests such a limitation.
We are concerned here with the separation of powers between national and state government established by our Constitution. This concept of federalism has been carefully preserved throughout our history by the courts, not by exhorting the Congress on the one hand or the state legislatures on the other to restrain their actions so as not to trespass on the rights, responsibilities, and duties of the other.
I cannot agree that it is a political question for the state to importune the Congress not to raise the salaries of state employees, thus forcing the state legislature to tax its people to pay those employees. This is a direct transgression on the concept of federalism, which must be determined by the courts. The case before us is a perfect example of the wisdom of Constitutional rather than Congressional federalism. The amendment, through which the states are subjected to the Fair Labor Standards Act, was enacted without notice to the states so that they might be heard and without any thought being given to the effect of the Act on them. Surely the statement of one Congressman, even in the committee of the whole, did not alert the states, or constitute a Congressional finding, or give this Act a purpose as applied to the states as the majority would wish. [Note 10, Judge Winter’s opinion.]
This case then brings into confrontation the powers of Congress under the Commerce Clause with the concept of dual sovereignty or federalism as embodied in our Constitution, which is articulated in the Tenth Amendment.
The effect of this Act must be measured against the Constitution precisely and its impact cannot be softened by what regulation a department of the national government might promulgate in its application.
What then is its effect on the state government ?
By this Act Congress is forcing, under threat of civil liability and criminal penalties, the state legislature or the responsible political subdivision of the state
1. to increase taxes (an impossibility in some of the political subdivisions without a state constitutional amendment); or
2. to curtail the extent and calibre of services in the public hospitals and educational and related institutions of the state; or
3. to reduce indispensable services in other governmental activities to meet the budgets of those activities favored by the United States Congress; or
4. to refrain from entering new fields of governmental activity necessitated by changing social conditions.
The allocation of the state’s revenue among government activities is the most important function of state government, for it determines the extent and calibre of service which a state can supply. State governments must provide services out of current tax funds. The state government and its political subdivisions are particularly sensitive to the needs of the people and their ability to pay for the indispensable governmental functions that must be furnished.
*854 The budget is, therefore, under constant study by both the executive and legislative branches of the state’s government. Not only does the appropriation bill demand the highest consideration of the legislature while it is in session, but it also requires most of the attention of the executive and the interim legislative committees between sessions. *
There is only so much revenue available. The wise allocation of this money demands this constant up-to-the-minute knowledge of state and local governmental officials intimately concerned with the requirements and priorities to be allotted among the health, welfare, education, law enforcement, urban, pollution, and other demanding governmental functions, each of substantial importance. The states’ Congressional delegations neither have the time, nor knowledge, nor is it their function to become involved in the vital details of state fiscal policy.
Perhaps all of the above can be expressed more graphically by a recent news story in the Evening Sun (Baltimore) which undoubtedly is repeated hundreds of times across the nation:
“It is budget time again in Howard County * * *.
“What particularly worries the commissioners is that the school budget [the largest expenditure of the county government] has gone up on an average of 22 per cent each year while the taxable income goes up only 15 per cent and assessments only 9 per cent.”
The Evening Sun (Baltimore), April 6, 1967.
The impact of a mandatory allocation of state-collected revenues by Congress among the indispensable state governmental services is thus readily demonstrated. It amounts to the national government compelling state government action and controlling and operating the state government with little or no knowledge of the requirements of its citizens or the financial ability of those citizens to pay the bill.
The Congress, under the theory of this Act, can manipulate state governments by increasing the state functions to come under the “enterprise” concept or removing exemptions for classes of state employees at will without notice to the state, and all at the expense of the state. This Act is thus an intrusion of first magnitude into the functioning of state government now, is potentially without limit, and carries with it the formula for the destruction of the concept of federalism.
Congress has heretofore carefully avoided interjecting the national power into state or local governmental functions. Although grants-in-aid and matching funds might have that effect, these have a contractual basis — a far cry from mandatory direction. This Congressional reluctance in and of itself indicates a recognition of the Constitutional principle of federalism.
The careful nurturing of the concept of federalism has come to fruition since World War II in the increasing initiative of the states in meeting new problems brought about by the great social changes in our nation. The momentous “Metropolitan Problem” has caused the creation of new forms of local government in many of the affected areas. The wisdom of local administration has been clearly demonstrated. We are seeing many more governmental activities being undertaken by the federal and state governments on a recognized partnership basis directed at solving our internal problems. In light of the above examples of voluntary movement toward national and state partnership, rather than compulsion, it would indeed be tragic at this point in his *855 tory to expand and broaden the power of the federal government over the state governments in the exercise of their necessary governmental functions under the guise of the “Commerce Clause” to a poiint never heretofore reached by any decision. To substitute now the delayed and ponderous action of a remote central government would atrophy and stifle this progress.
Alexis de Toequeville in his Democracy in America said it in this manner:
“ * * * I cannot conceive that a nation can live and prosper without a powerful centralization of government. But I am of the opinion that a centralized administration is fit only to enervate the nations in which it exists, by incessantly diminishing their local spirit. Although such an administration can bring together at a given moment, on a given point, all the disposable resources of a people, it injures the renewal of those resources. It may insure a victory in the hour of strife, but it gradually relaxes the sinews of strength. It may help admirably the transient greatness of a man, but not the durable prosperity of a nation.” Vol. I, pp. 86-87 (Bradley ed., New York, 1946).
Thus, the limitation upon a power, which has been delegated to the federal government — including the power to regulate commerce among the states — and which deals with the internal affairs of this nation, is reached when Congress exercises that power so as to interfere unduly in some manner with the state’s performance of an indispensable governmental activity. The Act as applied to employees of public schools, hospitals, and related institutions is unconstitutional because it is an undue infringement upon the performance of an indispensable and fundamental governmental function (its taxing and budgetary function) of the state, which the Constitution recognizes as sovereign.
The proof of the wisdom of the federal concept is implicit in the name of our government — the “United States”. It cannot be said more succinctly.
For example, consider the reports of the Maryland General Assembly’s Committee on Taxation and Fiscal Affairs from 1955 to date, the Maryland Legislative Council’s Report for any year and countless other such documents reflecting the prodigious amount of time and effort put forth by state officials to supply governmental services. These documents may be found in the Archives of the Council of State Governments.