Amicus Curiae Brief — Donovan v. San Antonio Metropolitan Transit Authority

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\y „eee Supreme Court ys

Nos. 82-1913 and 82-1951 AUS 31 1964

ALEXANDER 1.

IN THE Gum Ys

Supreme Court of the United States ~~

OCTOBER TERM, 1984

JOE G. GARCIA,

- Appellant,

SAN ANTONIO METROPOLITAN TRANSIT AUTHORITY, et al.,

Appellees.

RAYMOND J. DONOVAN, SECRETARY OF LABOR,

8 Appellant,

SAN ANTONIO METROPOLITAN TRANSIT AUTHORITY, et al.,

Appellees.

On Appeals from the United States District Court

for the Western District of Texas

SUPPLEMENTAL BRIEF OF THE NATIONAL LEAGUE

OF CITIES, THE NATIONAL GOVERNORS’

ASSOCIATION, THE NATIONAL ASSOCIATION OF

COUNTIES, THE NATIONAL CONFERENCE OF STATE

LEGISLATURES, THE COUNCIL OF STATE

GOVERNMENTS, THE INTERNATIONAL CITY

MANAGEMENT ASSOCIATION, AND THE

UNITED STATES CONFERENCE OF MAYORS AS

AMICI CURIAE IN SUPPORT OF APPELLEES

LAWRENCE R. VELVEL *

Chief Counsel

ELAINE KAPLAN

Attorney

State and Local Legal Center

444 North Capitol Street, N.W.

Suite 349

Washington, D.C. 20001

* Counsel of Record (202) 638-1445

—

WILSON - Eres PrintinG Co. Inc. - 789-0096 - WASHINGTON, D.C. 20001 *

TABLE OF CONTENTS

INTEREST OF THE AMICI CURIAE ůꝶ Egg

INTRODUCTION AND SUMMARY OF ARGUMENT.

— — ——

I. The Constitution Establishes a Federal System

II.

in Which the Powers of the National and State

Governments Must be Harmonized by Means of

A. The Framers Created a Federal System in

Which the National and State Governments

Each Have Effective Governing Authority....

B. The Powers of the National Governmeu.it

Must be Construed in Light of the Powers of

the State Governments and Vice Versa

C. When There is a Clash Between National and

State Power, the Court Must Engage in a

Balancing Test. Under This Test it Should

Determine Whether There is Injury to the

States’ Ability to Govern, and Whether the

Asserted Federal Power is Overriding and is

Carried Out in the Least Intrusive Manner

D. The Supremacy Clause, Which Ensures that

Constitutional Principles Will Prevail, Can-

not be Used to Vitiate Federalism .................

The Constitutionally Protected Authority of

States Encompasses the Powers Necessary to

Govern and Serve Citizens, and the Protection

Enjoyed by States Under the Tenth Amendment

Extends to Cities and Counties

A. State Powers Are Not a Closed Catalogue.

They Are Broad and Change Over Time as

Necessitated by New Economic, Technological

and Demographic Facts

B. The State’s Tenth Amendment Immunity Ex-

tends to Cities and Counties

TABLE OF CONTENTS—Continued

III. In Accordance With Its Historic Role as Arbiter

of the Federal System, This Court Must Deter-

mine, Under the Tenth Amendment, the Bound-

aries of Power Between State and National

IV. Under the Balancing Test the FLSA Cannot Be

Applied to Publicly Owned Mass Transit Sys-

V. The Three-Pronged Test Currently in Use is Un-

satisfactory. It Fails to Protect Federalism and

Each Prong Gives Rise to Serious Difficulties...

iii

TABLE OF AUTHORITIES

CASES Page

Alewine v. City Council, 699 F.2d 1060 (11th Cir.

1983), petition for cert. filed sub nom. Macon v.

Joiner, No. 82-1974, 51 U.S.L.W. 3884 31

Avery v. Midland County, Texas, 390 U.S. 474

D ..... 16, 17

Bacchus Imports, Ltd. v. Dias, No. 82-1565 (June

r .... 6, 9

Baker v. Carr, 369 U.S. 186 e 19

City of Lafayette v. Louisiana Power and Light Co.,

r 222 18

Cooley v. Board of Wardens of the Port of Phila-

delphia, 53 U.S. (12 How.) 299 (185177 29

Coyle v. Oklahoma, 221 U.S. 559 (19117 28

EEOC v. Wyoming, —— U.S. ——, 103 S.Ct. 1054

D 4, 5, 21, 22, 27, 30

FERC v. Mississippi, 456 U.S. 742 (1982) 2, 4, 5, 10,

21, 27

Friends of the Earth v. Carey, 552 F.2d 25 (2d Cir.

e 27, 28

Fry v. United States, 421 U.S. 542 (1975) 7, 8

Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824) 29

Helvering v. Gerhardt, 304 U.S. 405 (1938) 14

Hewlett-Packard v. Barnes, 425 F.Supp. 1294 (N. D.

Cal. 1977), aff'd, 571 F.2d 502 (9th Cir. 1978) 27

Hodel v. Virginia Surface Mining and Reclamation

Association, Inc., 452 U.S. 264 (1981777 9, 30

Hostetter v. Idlewild Hon Voyage Liquor Corp.,

r 6

Hughes Air Corp. v. Public Utilities Commission of

the State of California, 644 F.2d 1334 (9th Cir.

eS 27

Huron Portland Cement Co. v. City of Detroit, 362

U.S. 440 (1960) —............... 29

Lincoln County v. Luning, 133 U.S. 529 (1890).... 17

Louisiana ex rel. Folsom v. Mayor of New Orleans,

e 16

Marbury v. Madison, 5 U.S. (1 Cranch) 137

r /’ r 19

TABLE OF AUTHORITIES—Continued

Page

Molina Estrada v. Puerto Rico Highway Authority,

680 F.2d 841 (Ist Cir. 1982)3)0)y)22 „ 23

Nance v. Environmental Protection Agency, 645

F.2d 701 (9th Cir.), cert. denied, 454 U.S. 1081

ccc 27

National League of Cities v. Usery, 426 U.S. 833

(1976) ... — passim

New State Ice Co. v. Liebmann, 285 U.S. 262

7c 5

New York Times Co. v. United States, 403 U.S.

| IE Se AER in 6

Old Colony Trust Co. v. Seattle, 271 U.S. 426

＋ÿĩH . 0 ee SS 17, 18

Powell v. McCormack, 395 U.S. 486 (1969) 19

Public Service Co. of North Carolina v. Federal

Energy Regulatory Commission, 587 F.2d 716

r x lactis aeleiailiniads 27

Puerto Rico Telephone Co. v. FCC, 553 F.2d 694

I aarti he ninaidieals 28

Standard Oil Co. v. Agsalud, 442 F.Supp. 695 (N.D.

D ˙—˙¼)i! !! ],. ee 27

Trenton v. New Jersey, 262 U.S. 182 (1923) 17

United States v. Nixon, 418 U.S. 683 (1974) 6, 19

United Transportation Union v. Long Island Rail-

road Company, 455 U.S. 678 (1982) 27, 32

Vehicle Equipment Safety Commission v. National

Highway Traffic Safety Commission, 611 F.2d

ff 5g ee x 27

Woods v. Cloyd W. Miller Co., 333 U.S. 138

% 6

Younger v. Harris, 401 U.S. 37 (1971777) 7,8

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.

2 — . 6, 19, 20, 21

TABLE OF AUTHORITIES—Continued

CONSTITUTIONAL PROVISIONS Page

Commerce Clause, Article I, 88888888 passim

Supremacy Clause, Article Ins 11, 29, 30

Amendment IX. 7

Amendment & passim

Amendment Xxx 10

Amendment XV.. 10

Amendment XVIIIILLssmn 20

Amendment X JL... 6

STATUTES

Fair Labor Standards Act, 29 U.S.C. 201 et se.. 22, 24

29 U.S.C. 207 (e) (5) 25, 26

29 U.S.C. 207 (e) (7) ...... 25, 26

MISCELLANEOUS

The Federalist No. 45 (J. Cooke, ed. 1) [Madison]. 4, 12, 13

Kaden, Politics, Money and State Sovereignty: The

Judicial Role, 79 Col. L. Rev. 847 (19799 20

Wilson, Woodrow, Constitutional Government in

the United States (1908) ))) 13

INTEREST OF THE AMICI CURIAE

The interest of the amici is set forth in their prior

brief.

INTRODUCTION AND SUMMARY OF ARGUMENT

This case involves the question of the extent to which

state and local governing power is protected against

federal regulation by the Tenth Amendment. The cur-

rent standard for measuring such protection is the three-

pronged test developed under NLC v. Usery, 426 U.S.

833 (1976).

The present case was argued to the Court last term.

Amici, who represent the governors, state legislators,

cities and counties of the nation, filed a brief expressing

“grave reservations as to whether the three-pronged test

provides satisfactory criteria for determining whether

state and local power is protected under the Tenth

Amendment.” Brief for the National League of Cities,

et al., at 15. Amici said the three-pronged test creates

serious intellectual and practical difficulties, and that

state and local power almost never survives under it.

The consequence, argued amici, is ever increasing cen-

tralization of power in the national government, with

concomitant diminution in state and local power—a re-

sult eschewed by principles of federalism. Id. at 15-16,

n.7. However, amici did not further develop their criti-

cisms of the three-pronged test, but instead stated that

they would present their views in appropriate future

cases. Ibid.

On July 5, 1984, the Court set this case for reargu-

ment. The Court requested supplemental briefing on the

question [whether or not the principles of the Tenth

Amendment as set forth in National League of Cities v.

Usery, 426 U.S. 833 (1976), should be reconsidered?”

In this brief amici are therefore stating their views on

1 Pursuant to Rule 36, the parties have consented to the filing

of this amicus brief. Their letters of consent have been lodged with

the Clerk of the Court.

appropriate standards for judging state and local immu-

nity under the Tenth Amendment.“

In summary, amici’s position is this: The Framers of

the Constitution deliberately established a federal system

in which effective governing authority is divided be-

tween the national government and the states. This di-

vision of power was considered essential to avoid a

dangerous centralization of authority in the federal gov-

ernment, and is a vital component of the system of checks

and balances. The power of the federal government and

of the states must both be respected. Neither can be per-

mitted to impair the other; neither can be extended to the

point where it gravely harms the other. Thus, where

there is a clash between them, they must be harmonized

by means of a balancing process. Under this process the

Court must first determine whether a challenged federal

law or regulation impairs the ability of states to effec-

tively exercise their governing authority. If it does so,

the federal action must fall unless it carries out a fed-

eral interest that overrides the state power, and is

tailored to further such interest in the manner least

harmful to state authority.“

2 Two of the amici, the National League of Cities and the Na-

tional Governors’ Association, were parties in NLC v. Usery, and

thus have a longstanding interest in judicial application of the

Tenth Amendment.

The position urged by amici is very close to or identical with that

expressed in Justice Blackmun’s concurring opinion in National

League of Cities, supra, and to views expressed by Justice O’Connor,

joined by the Chief Justice and Justice Rehnquist, in a concurring

and dissenting opinion in FERC v. Mississippi, 456 U.S. 742 (1982).

Justice Blackmun favored a balancing approach which allowed the

exercise of federal authority where there is a strong and demon-

strable federal interest that necessitates state compliance. 426 U.S.

at 856. Justice O’Connor said that, in determining whether an

asserted federal interest justifies state submission, the Court must

consider “not only the weight of the asserted federal interest,” but

also “the necessity of vindicating [it] in a manner that intrudes

upon state sovereignty.” 456 U.S. at 781, n.7.

ARGUMENT

I. The Constitution Establishes a Federal System in

Which the Powers of the National and State Govern-

ments Must be Harmonized by Means of a Balancing

Process

A. The Framers Created a Federal System in Which

the National and State Governments Each Have

Effective Governing Authority

1. The Framers of the Constitution created a federal

system of government. They divided governing power be-

tween the national government on the one hand, and

states on the other. The national government and the

states were each to have effective authority within their

spheres.

This concept of federalism is part of the fabric of the

Constitution. As stated by the Solicitor General, “the

federal principle of division of authority between the na-

tional government and the states is imbued in both the

constitutional text, which recognizes the states as endur-

ing units of government, and in the overall structure of

the national charter.” Supplemental Brief for the Secre-

tary of Labor (hereinafter “Supp. Br. Sec.“), at 3.

The Tenth Amendment, under which this case arises,

reflects the federal nature of our system. But it is only

one manifestation of the pervasive principle of federalism.

This, too, was recognized by the Solicitor General, when

he saic “(t]he Tenth Amendment is only the most obvious

textual manifestation of the federal principle and of the

enduring role assigned to the states in our system of gov-

ernment. Others abound.” Supp. Br. Sec. at 4.

Because the Framers desired a federal system in which

the national and state governments would each have ef-

fective authority, they expressly delegated certain powers

to the national government, while reserving to states a

vast realm of autliority over the day to day affairs of the

body politic. This was explained by James Madison:

“The powers delegated . . . to the Federal Govern-

ment are few and defined. Those which are to re-

main in the State Governments are numerous and

indefinite. The former will be exercised principally

on external objects, as war, peace, negotiation, and

foreign commerce. . The powers reserved to the

several States will extend to all the objects which, in

the ordinary course of affairs, concern the lives, lib-

erties and properties of the people; and the internal

order, improvement, and prosperity of the State.”

The Federalist No. 45, p. 313 (J. Cooke ed.1)

Madison].

Thus, under the Constitution, states have a wide area

of governing authority.

2. There were several reasons why the Framers ereated

a federal system in which the states possess extensive au-

thority. Though the Framers believed the national govern-

ment has to perform functions that individual states could

not effectively perform themselves—such as conducting

foreign affairs and regulating commerce between the

states—they also feared centralized national authority.

As colonists they had been subjected to concentrated

power, and had grown “ ‘suspicious of every form of all-

powerful central authority.’ To curb this evil, they both

allocated governmental power between state and national

authorities, and divided the national power among three

branches of government.” FERC v. Mississippi, supra,

456 U.S. at 790 (O’Connor, J., concurring in part and

dissenting in part) (citation omitted).

Related to the Framers’ fear of centralized power was

their desire to ensure liberty. Division of power between

national and state governments was therefore relied upon

as an important safeguard of freedom (as was the di-

vision of power within the national government itself).

These divisions of power, as Justice Powell has stated in

regard to the divisions among the three branches of the

national government, are part of the “system of checks

and balances.” They are “far more central to the larger

perspective than any single power. EEOC v.

Wyoming, —— USS. , , 103 S.Ct. 1054, 1076

(1983) (Powell, J., dissenting). Unless the divisions of

power are “zealously protected led! . . we risk upsetting

the balance of power that buttresses our basic liberties.”

FERC v. Mississippi, supra, 456 U.S. at 790 (O’Connor,

J., concurring in part and dissenting in part).

The Framers also believed that state governments are

closer to the people than the national government. State

governments often have a greater understanding of their

citizens’ needs and, unlike Congress, can tailor laws and

regulations to a host of diverse local requirements. This

was extensively pointed out by the Chief Justice in

EEOC v. Wyoming, supra, —— U.S. at ——, 103 S.Ct.

at 1075 (Burger, C.J., dissenting) .

Finally, though the Framers themselves did not ex-

plicitly consider the point, history has shown that the

governing powers of states enable them to serve as labo

ratories for devising solutions to pressing problems. Such

solutions often are adopted later by other states or the

national government. In the seminal words of Justice

Brandeis, “it is one of the happy incidents of the fed-

eral system that a single courageous state may, if its

citizens choose, serve as a laboratory; and try novel social

and economic experiments without risk to the rest of the

country.” New State Ice Co. v. Liebmann, 285 U.S. 262,

331 (1932) (Brandeis, J., dissenting).

B. The Powers of the National Government Must be

Construed in Light of the Powers of the State Gov-

ernments and Vice Versa

Because the Constitution establishes a federal system

with checks and balances, the powers of the national and

state governments cannot be viewed in isolation from each

other (just as the powers of the three branches of the

national government itself cannot be viewed in isolation

from each other). Rather, the powers of the national

government must be construed in light of the powers of

state governments and vice versa. This is only the more

true because the national and state governments some-

times have concurrent power over a subject, e.g., concur-

rent power exists over aspects of interstate commerce.

Construing the powers of one organ of government in

light of the powers of another is an established and neces-

sary mode of constitutional interpretation. It has been

adopted in major constitutional cases involving powers

of branches of the federal government, such as Youngs-

town Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) ;

New York Times Co. v. United States, 403 U.S. 713

(1971); and United States v. Nixon, 418 U.S. 683

(1974). It has also been adopted in cases involving a

clash between state and national powers. In litigation

involving the Twenty-first Amendment, for example, the

Court has said that “‘[bjoth the Twenty-first Amend-

ment and the Commerce Clause are part of the same

Constitution [and] each must be considered in light of the

other.“ Bacchus Imports, Ltd. v. Dias, No. 82-1565

(June 29, 1984), slip op. at 11, quoting Hostetter v.

Idlewild Bon Voyage Liquor Corp., 377 U.S. 324, 332

(1964) (brackets in original). “The mode of analysis

to be employed” must therefore be a “ ‘pragmatic ef-

fort to harmonize state and federal powers.“ bid.

Construing the powers of one organ of government in

light of the powers of the other is necessary to preserve

the constitutional plan. Absent such construction, the

powers of one organ might be construed so broadly as to

defeat or even obliterate the powers of another. The pos-

sibility of such an encompassing, cannibalistic interpre-

tation of one set of powers was specifically recognized by

this Court in regard to the war powers, when the Court

said that “if the war power can be used in days of peace

to treat all the wounds which war inflicts on our society,

it may not only swallow up all other powers of Congress,

but largely obliterate the Ninth and Tenth Amendments

as well.” Woods v. Cloyd W. Miller Co., 333 U.S. 138,

144 (1948).

What is true of the war power is also true of other

federal powers such as the commerce power. Though the

interstate commerce clause originally covered only com-

merce which actually moved between the states, and was

designed simply to prevent discrimination and remove

trade barriers, it now covers any activity which remotely

affects interstate commerce. And there is virtually noth-

ing which cannot be said to affect interstate commerce in

some way. Thus, if the federal commerce power can ipso

facto override state authority, and need not be harmo-

nized with state power, then the commerce power will

“largely obliterate the Ninth and Tenth Amendments”

and the entire concept of federalism as well.

The same all consuming, destructive capacity also in-

heres in the spending power. This was elaborated in

amici’s prior brief, at pages 29-30. As explained there,

centralized national power will be vastly increased, and

state and local power will be correspondingly diminished,

if a grant of federal funds enables the national govern-

ment to lay down governing rules in areas the Consti-

tution otherwise commits to state and local governments.

The need to interpret national powers in a manner that

does not obliterate state authority has been recognized

by this Court. It said in Fry v. United States, 421 U.S.

542, 547 n.7 (1975), that “[t]he [Tenth] 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.” The necessity of harmonizing state

and federal powers was also recognized extensively in

Younger v. Harris, 401 U.S. 37, 44-45 (1971), where the

Court eloquently said that the concept of federalism

means:

“a system in which there is sensitivity to the legiti-

mate interests of both State and National Govern-

ments, and in which the National Government, anx-

ious though it may be to vindicate and protect fed-

eral rights and federal interests, always endeavors

to do so in ways that will not unduly interfere with

the legitimate activities of the States. It should

never be forgotten that this slogan, ‘Our Feder-

alism,’ born in the early struggling days of our

Union of States, occupies a highly important place in

our Nation’s history and its future.”

C. When There is a Clash Between National and State

Power, the Court Must Engage in a Balancing Test.

Under This Test it Should Determine Whether

There is Injury to the States’ Ability to Govern, and

Whether the Asserted Federal Power is Overriding

and is Carried Out in the Least Intrusive Manner

We have shown that the Framers created a federal

system in which the national government and the states

each possess governing authority. We have also shown

that the powers of the national government must be con-

strued in light of the powers of the states and vice versa.

Therefore, when there is a clash between a federal law

and state power, the Court must first determine whether

the federal action injures the ability of states to govern

effectively. If the federal act does so, it must fall unless

it carries out a federal interest that overrides the state

power, and is tailored to further such interest in the

manner least harmful to state authority. In short, the

Court must engage in a balancing test of the type it

has commonly applied in numerous areas of law.

In NLC v. Usery, supra, the Court made clear that

it had previously adopted such a balancing approach in

Fry v. United States. The NLC Court noted that Fry

had involved an emergency economic measure necessary

to combat an “extremely serious problem which er

dangered. . . all the component parts of our federal

system.” 426 U.S. at 853. Only action by the national

government could forestall the danger. The federal gov-

ernment’s action was merely temporary, and did not

“interfere with the States’ freedom of action beyond a

very limited, specific period of time.” It displaced no

state choices, and reduced rather than increased the pres-

sure upon state budgets. Ibid.

Thus, the Fry Court engaged in the very type of bal-

ancing process espoused by amici: it considered whether

a federal law interfered with state governing authority,

whether the law was necessary to accomplish an overrid-

ing federal purpose, and whether it furthered that pur-

pose in the least intrusive way.

In considering whether a given federal action is consti-

tutional though it clashes with the governing authority

of states, the Court must necessarily take account of

the powers involved and the actual facts of the case. As

the Court recently said in resolving a clash between the

Twenty-first Amendment and the Cc nmerce Clause, it

must consider rival powers in “the cc.vext of the issues

and interests at stake in any concrete case.” Bacchus Im-

ports Ltd. v. Dias, supra, slip op. at 11. Thus, where the

national government invokes a power central to its cre

ation, and does so to accomplish purposes also central to

its creation, its chances of success will be greater than

where it invokes a lesser power or purpose. For example,

where the national government invokes the interstate

commerce clause to prohibit state discrimination against

such commerce or state rivalries which gravely burden the

commerce, the federal chance of success will be higher

than in cases where it invokes a less central power or

invokes the commerce power to regulate some activity

which has only a small or remote effect on commerce.

Similarly, if the federal government invokes the com-

merce power to cure a national problem requiring a uni-

form solution, or to solve a widespread health or eco-

nomic problem which states cannot address effectively be-

cause economic necessity makes them rivals in seeking

to attract the industries which cause the problem, then

the national government’s chance of success will be

greater than in cases where it invokes the commerce

power though states can and are providing effective an-

swers to problems which are susceptible to local solutions.“

* Two cases which were decided after and are progeny of NLC v.

Usery exemplify situations in which the federal commerce power

was invoked to solve crucial national problems which the states

themselves had not been able to and probably could not solve. In

Hodel v. Virginia Surface Mining and Reclamation Association,

Inc., 452 U.S. 264 (1981), the national government addressed serious

Yet, though the national government’s chance of suc-

cess will be greater where it invokes a power central to

its creation and does so to accomplish a purpose that is

also central to its creation, even here a national power

cannot be carried to the point of gravely impairing state

authority. The national government could not, for ex-

ample, limit the number of state employees because it

believes they would be more productive in tasks other

of workers who

of states’ ability to govern, and is therefore a power

which the national government cannot override.

Just as national powers are limited by state powers

with which they clash, so too the reverse: state authority

is limited by national powers with which it clashes. For

example, under the Fourteenth and Fifteenth Amend-

ments, the prevention of discrimination is an overriding

national purpose which can be and is carried out by fed-

eral legislation. No state possesses the constitutional

authority to disregard such legislation. Similarly, there

are environmental and energy problems which pose a

grave threat to interstate commerce and cannot be solved

by states. In such instances, state governing power can

be overridden by an exercise of the federal commerce

power designed to cure a threat to the national economy.“

environmental problems that eluded state solution. And in FERC

v. Mississippi, supra, the federal government dealt with a national

energy crisis that was beyond the capacity of states to overcome.

The facts of those cases thus exemplify the need for the type of

balancing approach advocated here by amici and adopted in NLC

by Justice Blackmun (426 U.S. at 856), who would allow the exer-

cise of federal authority where there is a demonstrably great na-

tional interest.

5 We note that there are cases in which the federal power to act

is for practical purposes indisputable under the balancing test,

e.g., a situation in which the national government invokes the war

power to stabilize the national economy during a military crisis.

Even in cases involving a clearly applicable national power, the

federal government’s challenged action must actually further the

D. The Supremacy Clause, Which Ensures that Consti-

tutional Principles Will Prevail, Cannot be Used to

Vitiate Federalism

Appellant Garcia seeks to evade the need to harmonize

federal and state powers. He would resolve in favor of

national authority all clashes of power between the na-

tional government and the states. Thus, he asserts that

the Supremacy Clause removes all restraints upon Con-

gress stemming from the sovereign authority of states.

According to his argument the clause establishes unre-

stricted federal hegemony. He seeks to bolster his argu-

ment for uncabined federal power with quotes from the

Framers and this Court which purportedly support such

an interpretation. Brief of Appellant Joe G. Garcia on

Reargument (hereinafter “Garcia Rearg.”) at 4-11.

Garcia’s position is untenable. Under the Supremacy

Clause the Constitution is the supreme law of the land.

Principles of federalism are pervasively embedded in that

supreme law. A position which vitiates federalism is thus

inconsistent with the Constitution and cannot be main-

tained. Garcia’s position does vitiate federalism by re-

moving all restraints on Congress’ power vis-a-vis the

states. Thus, his view cannot stand.

Nor is Garcia’s position saved by broad statements

he cites. Understood in context those statements were

designed to establish federalism, not to destroy it. When

the country began and for scores of years thereafter

(indeed until the “constitutional revolution” of the late

1930’s and early 1940’s), the great question was whether

the national government would be too weak to achieve

the purposes for which it was created or would instead

have powers adequate to that end. It was feared that

federal interest being asserted. The national government’s means

must be adapted to the substantive end. Moreover, the need for

federal action that overrides state power should not be a hypo-

thetically rational construct advanced after the fact by government

counsel. Rather, it should be a matter that was considered by

Congress itself. Otherwise, the necessary protection received by

states under the balancing test could be lessened.

the goal of effective national authority would be thwarted

by the vast state powers existing before the Constitu-

tion and by the historical fact that, as Madison put it,

“the first and most natural attachment of the people will

be to the governments of their respective states.” The

Federalist No. 45, supra, at 316 [Madison]. Thus, to

establish a federal system in which the national govern-

ment too possessed effective authority, the Framers and

this Court often pointed out that the will of Congress

would prevail where the federal government had con-

stitutional power. These statements were intended to

help ensure the national government would not be weak

and helpless because of state power. But statements

made to establish federalism by strengthening the na-

tional government in the face of powerful states, were

not intended to destroy federalism by enabling a central

government which has grown huge and powerful to over-

ride the proper exercise of authority by now weakened

states.“

II. The Constitutionally Protected Authority of States

Encompasses the Powers Necessary to Govern and

Serve Citizens, and the Protection Enjoyed by States

Under the Tenth Amendment Extends to Cities and

Counties

A. State Powers Are Not a Closed Catalogue. They

Are Broad and Change Over Time as Necessitated

by New Economic, Technological and Demographic

Facts

1. Because states have authority which cannot be im-

paired by the national government, the question arises

of precisely which governing powers the states possess.

The answer is that there is no closed catalogue of state

The potential of Garcia’s argument to destroy federalism is en-

hanced because it need not be confined to the commerce clause.

(Garcia, indeed, suggests no reason why it should be so confined.)

Rather, it extends to any clause granting power to the federal

government. Thus no national power would be restricted by prin-

ciples of federalism, and state power would be diminished

accordingly.

powers. Rather, “(t]he powers reserved to the several

States will extend to all the objects which, in the ordi-

nary course of affairs, concern the lives, liberties and

properties of the people; and the internal order, improve-

ment and prosperity of the state.” The Federalist No.

45, supra, at 318 [Madison]. In short, the authority of

states encompasses all powers necessary to govern their

citizens and serve the public welfare.

Just as state powers are not a closed catalogue, so too

they are not static. Rather, they grow and change over

time, as necessitated by new economic, technological, and

demographic facts. Thus, over time, states and local gov-

ernments have often begun to provide new services

needed by citizens: such services have included public

schools, hospitals, fire departments, sanitation facilities,

airports and, as in this case, mass transit.

The need for growth and change in state powers is no

less today than in former years. For today the states

and their subdivisions, the cities and counties,. are con-

fronted with a host of nearly intractable problems re-

lating to slums, traffic, schools, noise and air pollution,

jobs, welfare and other matters. The states and their

subdivisions must therefore possess the authority needed

to develop constructive solutions to such overriding con-

temporary problems.

That the powers of states must and do grow and

change as necessitated by the public welfare has long

been recognized by leading constitutional scholars. Thus,

in his Constitutional Government in the United States

(1908), Woodrow Wilson said:

The question of the relation of the States to the fed-

eral government ... cannot. . . be settled by the

opinion of any one generation, because it is a ques-

tion of growth, and every successive state of our

political and economic development gives it a new as-

pect, makes it a new question . . Our activities

change alike their scope and their character with

every generation.

And in a similar vein, Justice Black said:

Many governmental functions of today have at some

time in the past been non-governmental. ... [TI He

people—acting . . . through their elected legislative

representatives—have the power to determine as con-

ditions demand, what services and functions the pub-

lic welfare requires. Helvering v. Gerhardt, 304 U.S.

405, 427 (1938) (Black, J., concurring) (emphasis

added).

Finally, we note that the necessity for change and

growth in state powers is not generically different from

the growth which had to occur in federal power from

approximately 1880 through 1940. During that period

there were constant efforts—often struck down by the

judiciary—to expand the federal commerce power so as to

solve pressing national economic problems. These efforts

received acceptance by this Court at the end of the

1930’s and the beginning of the 1940’s. The necessary

change and growth in the federal commerce power finds

a counterpart in changes and growth in state power when

this is necessary to enable states and their subdivisions

to meet problems which beset the public welfare. Indeed,

were federal but not state power to be capable of growth

to meet economic and social exigencies, then national

authority would continuously expand relative to that of

states. The concept of federalism would ultimately be

come archaic and meaningless.

2. Appellant Garcia seeks to foreclose the necessary

growth in state authority. He therefore asserts that a

state acts in a sovereign capacity only when it makes

and enforces laws, and not when it provides goods and

services. Thus, he argues, federal laws necessarily are

applicable to the provision of goods and services by states.

Garcia’s position is contrary to historical facts and to

this Court’s jurisprudence. It has always been the func-

tion of government to provide services which are best

supplied by the public sector. Indeed, the provision of im-

portant services is one of the basic reasons for institut-

ing government in the first place. Thus, governments all

over the world have provided police protection, military

defense, postal services, schools, judicial tribunals, hos-

pitals and other necessities of life.

The services government must provide have naturally

grown over time as conditions change, and have come

to include many functions which previously were supplied

by private parties or which are still supplied in part by

such parties. Governments have undertaken such serv-

ices because private businesses could not or were not

serving the needs of citizens on a sufficiently widespread

basis or at a sufficiently affordable price. Schools and

hospitals are longstanding examples. More recently, nu-

merous additional illustrations have arisen because of

the necessities of modern life. Thus, governments around

the globe, including the national and state governments

in this country, now provide energy, airports, long dis-

stance transportation, and local mass transit.

This Court itself has said that supplying services is a

fundamental function of state governments, and that

such governments are engaged in a sovereign /sunction

when they perform the services. Thus in NLC, supra, the

Court said that fire prevention, police protection, sani-

tation, public health, and parks and recreation are activi-

ties “typical of those performed by state and local gov-

ernments in discharging their dual functions of ad-

ministering the law and furnishing public services.” 426

U.S. at 851 (emphasis supplied). “Indeed”, continued the

Court, “it is functions such as these which governments

are created to provide, services such as these which the

States have traditionally afforded their citizens.” Ibid.

Furthermore, “the essentials of state sovereignty” would

be devourſed] if the federal government could force

upon States its choices of how to operate such activities as

schools, hospitals, fire departments and police depart-

ments.” 426 U.S. at 855.“

That government acts in a sovereign capacity when it provides

services needed by citizens is a proposition which is not diminished

B. The State’s Tenth Amendment Immunity Extends

to Cities and Counties

In order to carry out powers they possess under the

Constitution, states create cities and counties, which are

political subdivisions of the states. Cities and counties

represent a state’s chosen method of organizing itself

for the purpose of carrying out state policy and govern-

ing effectively. They “are instrumentalities of the State.”

Louisiana ex rel. Folsom v. Mayor of New Orleans, 109

U.S. 285, 287 (1883). They “derive their authority and

power from their respective states,” NLC, supra, 426

U.S. at 855, n. 20, and simply carry out the states’ own

powers. Thus, “(t]he actions of local government are

the actions of the state,” Avery v. Midland County,

Texas, 390 U.S. 474, 480 (1968) (emphasis in original),

and cities and counties receive the same immunity as the

state itself under the Tenth Amendment. As this Court

held in NLC, supra, 426 U.S. at 855, n. 20, the actions

of cities and counties are “beyond the reach of Congres-

sional power under the Commerce Clause just as if such

services were provided by the State itself.”

by a “scare argument” employed by Garcia. Such argument is that

private businesses will be taken over by states if the latter receive

Tenth Amendment protection from federal regulation and its

attendant costs when supplying goods and services. Garcia Rearg.

at 40-41.

However, states and local governments do not become involved in

previously private businesses, with all their many attendant prob-

lems, because federal regulation will thereby become inapplicable.

Rather, as indicated above, if state and local entities become in-

volved in formerly private activities, it is because appropriately

elected and appointed public officials have determined that private

businesses cannot or are not serving the needs of citizens on a

sufficiently widespread basis or at a sufficiently affordable cost.

This is the history and the reality whether one looks at schools,

hospitals, mass transit or other functions. Nor is appellant Garcia

able to cite even a single concrete example in which a state or local

government became involved in the travails of owning and running

a private business in order to oust federal regulation. His argu-

ment is merely an intellectual chimera.

The correctness of these principles is emphasized

the fact that the cities and counties often bear the brun

of serious problems besetting the state. They thus need

the same latitude to solve the problems as is possessed by

the states. For it is cities and counties which massively

confront modern problems relating to schools, traffic,

slums, welfare, and other matters.

Appellant Garcia argues that cities and counties can-

not receive protection under the Tenth Amendment be-

cause they are not treated as states under the Eleventh

Amendment. But cities and counties are treated as states

under the Fourteenth Amendment, the Fifteenth Amend-

ment, the obligation of contracts clause, and the just

compensation clause. E.g., Avery v. Midland County,

supra; Trenton v. New Jersey, 262 U.S. 182 (1923).

Plainly, their treatment under the Eleventh Amendment

does not determine their treatment under other consti-

tutional clauses. Rather, the policies underlying each

clause must be and are considered separately. The poli-

cies underlying the Tenth Amendment necessitate that

cities and counties be treated as states for purposes of

that clause because, as said above, they carry out the

state’s own power, are the state’s chosen method of or-

ganizing itself, and face the same serious problems that

confront the states themselves.

8 S

It is quextionable whether there is even any E’eventh Amend-

ment policy which justifies giving cities and cou ities less immunity

under that amendment than is enjoyed by states. In an 1890 case

the Court said that cities and counties de not share the state’

immunity because they are corporations chartered by the states.

Lincoln County v. Luning, 133 U.S. 529, 530 (1890). But counties

are not corporations, and, with but few exceptions, they do not even

have charters. Rather, counties are direct instruments of state

sovereignty created by state constitutions or statutes. They have

executive and legislative arms, and are subject to the electorate.

And while cities are incorporated, they are not like private corpo-

rations. Rather, they are governing bodies with governing arms

and powers, and they face all the problems of their parent govern-

ing bodies, the states.

In a 1926 case the court said cities do not share states’ immunity

because they are mere “agents” of the state. Old Colony Trust Co.

Finally, Garcia relies on the fact that the standards

governing the immunicy of local governments under the

Sherman Act are different from those governing the

immunity of states. While several amici disagree with

decisions treating cities and counties differently than

states under the antitrust laws, those decisions nonethe-

less do not aid Garcia. For under such decisions the

cities and counties share the immunity of states so long

as the local governments act within authority granted

them by states and carry out state policies. City of

Lafayette v. Louisiana Power and Light Co., 435 US.

389, 416-417 (1978). Similarly, amici’s argument in

this case is that cities and counties share the Tenth

Amendment immunity of states precisely because the

local governments derive their governing authority from

City of Lafayette, supra, 435 U.S. at 412, n. 42.

III. In Accordance With Its Historic Role as Arbiter of the

Federal System, This Court Must Determine, Under

the Tenth Amendment, the Boundaries of Power Be-

tween State and Naticnal Governments

A. As shown above, the Tenth Amendment embodies

principles of federalism and state authority which are

basic to the nation. Appellants Donovan and Garcia,

however, urge that this Court should refrain from ju-

dicially enforcing the Amendment. Donovan’s supple-

notion that “enforcement of federalism restraints .. is

extrajudicial in nature”, but goes on to urge that, in-

stead of enforcing the amendment, the Court should de

fer wholesale to Congress. Supp. Br. Sec. at 14. Garcia’s

v. Seattle, 271 U.S. 426 (1926). But cities and counties are not

agents in the sense that an individual is an agent for a corporation

or a government. Rather, as stated above, they are governing

political instrumentalities with appropriate governing arms, and

they share state powers and problems. They also make independent

decisions on behalf of their electorate, to which they are responsible.

brief asserts that the courts should leave questions of

state power “to the usual processes of political action.”

Garcia Rearg. at 29.

In urging the Court to abstain from enforcing prin-

ciples of federalism, Donovan and Garcia both assert

that Congress and the political processes should be re-

lied upon to protect the states. They also seek to bolster

their argument by claiming that judicial standards can-

not be derived in the area of federalism.

The argument made by appellants is contrary to the

constitutional scheme, contrary to the tenets of this

Court’s jurisprudence, and contrary to facts.

Questions of federalism—i.e., Tenth Amendment ques-

tions—involve the boundaries of power between the na-

tional government and the states. In this respect they

are precisely like questions of the location of power

among the three branches of the national government it-

self. In both situations the issue is which powers accrue

to which organs of government.

It has historically been the role of this Court to de-

termine such questions—to be the arbiter of the federal

system. This role has existed at least since Marbury v.

Madison, 5 U.S. (1 Cranch) 137 (1803), where, in his

masterful discussion of the relative powers of Congress

and the courts, John Marshall said “[i]t is emphatically

the province and duty of the judicial department to say

what the law is.” Id. at 177. The Court’s role as umpire

of the system has been reaffirmed and reapplied through-

out American history in many cases of titanic importance

to the nation. F. g., Youngstown Sheet & Tube Co. v.

Sawyer, supra; Baker v. Carr, 369 U.S. 186 (1962);

United States v. Nixon, supra. It has been reaffirmed in

the face of vigorous claims that the Court should leave to

one of the political branches the question of that branch’s

own power. United States v. Nixon, supra; Powell v.

McCormack, 395 U.S. 486, 549 (1969).

It is true that the Court has deferred to Congress and state

legislatures when one or the other has enacted a law regulating

Thus, from the beginning of the nation to our own day

the Court has maintained its constitutional role as um-

pire of the system. It thereby makes a fundamental con-

tribution to the system of checks and balances. This sys-

tem significantly depends on decisions of power being

made not by political officials whose authority is involved

and who naturally seek to augment their own role, but by

judges who receive life tenure so that they may be in-

sulated from political considerations and may concentrate

instead on constitutional ones.“

economic matters and there is no actual clash between state and

federal laws. In such cases the Court has applied a presumption

of constitutionality. But those cases are far different from ones

in which state and federal laws do clash, and the question is whether

the state is protected under the Tenth Amendment. For the latter

cases involve issues of the boundaries of power between organs

of government, which it is the Court’s historical duty to determine,

and no presumption of constitutionality can be applied because

the state and federal laws would each be entitled to such presump-

tion if it were utilized.

1 Appellants seek to elide the Court's constitutional role by

claiming that states will receive necessary protection in Congress

because the latter “must be presumed to be sensitive to the pre-

rogatives” of state governments. The assertion is highly question-

able. For the factors which historically were thought to ensure

Congressional sensitivity to states have dramatically changed, and

new factors militating against such sensitivity have arisen. See

Kaden, Politics, Money and State Sovereignty: The Judicial Role,

79 Col. L. Rev. 847, 860-868 (1979). As Justice Jackson eloquently

said in discussing modern presidential powers: “it is relevant to

note the gap that exists between paper powers and . real

powers .... Subtle shifts take place in the centers of real power

that do not show on the face of the Constitution.” Youngstown

Sheet & Tube Co. v. Sawyer, supra, 343 U.S. at 653 (Jackson, J.,

concurring). )

Thus, it was long thought that Congress was particularly re-

sponsive to state governments because Senators and Representa-

tives are elected from the states. Indeed, until the passage of the

Seventeenth Amendment, Senators were elected by state legislatures.

But Senators are no longer elected by state legislatures, and other

factors which gravely lessen sensitivity to state interests have

assumed overwhelming importance. Today, huge amounts of money

are needed for campeigns; therefore, rather than being tied to

assert that Congress itself should be allowed to determine

whether it can override the authority of the states. Such

assertion contravenes fundamental principles. It also

opens the door to major intrusions on state power as well

as to small intrusions that ‘nibble away at state sov-

ereignty, bit by bit, until someday essentially nothing is

left but a gutted shell.’” FERC v. Mississippi, supra, 456

U.S. at 774-775 (Powell, J., concurring and dissenting)

(citation omitted)

Appellant’s position is not rescued by the Solicitor

General’s contention that adjudication of Tenth Amend-

ment questions may sometimes require consideration of

complex facts bearing on governmental processes. In de-

termining the boundaries of power, this Court has often

had to take account of such facts; sometimes, indeed, the

facts were alleged to threaten catastrophe to the nation.

Youngstown Sheet & Tube Co. v. Sawyer, supra. The

existence of complex facts did not cause the Court to

shrink from its duty of adjudication, however.

Moreover, the majority and dissenting members of the

Court have considered complex facts in Tenth Amend-

ment cases no less than in other cases. See FERC v.

Mississippi, supra; EEOC v. Wyoming, supra. And, as

recognized in both NLC and EEOC, there will be times

when the effects of salient facts will be obvious. NLC v.

Usery, supra, 426 U.S. at 846; EEOC v. Wyoming, supra,

—— US. at ——-, 103 S.Ct. at 1063.

C. Appellants are also incorrect in asserting that ju-

dicial standards cannot be derived in the area of fed-

eralism. As said earlier, in protecting vital principles

of federalism under the Tenth Amendment, the Court

should employ the same type of test used in other areas

of constitutional law, and used in the Bacchus case,

supra, as recently as June 1984 in determining whether

state or federal power shall prevail. That is, the Court

should harmonize state and federal power by means of

a balancing test under which it considers whether state

governing authority is being impaired, whether the na-

tional government’s law furthers an overriding federal

interest, and whether the law is tailored to achieve the

federal interest with the least harm to state authority.

IV. Under the Balancing Test the FLSA Cannot Be Ap-

plied to Publicly Owned Mass Transit Systems

Under the balancing test propounded by amici, publicly

owned mass transit systems are protected by the Tenth

Amendment against application of the Fair Labor Stand-

ards Act (FLSA). For when applied to publicly owned

mass transit, the FLSA impairs vital governing in-

terests of state and local jurisdictions, furthers no over-

riding federal interest, and is not tailored to accomplish

a federal interest in the manner least harmful to state

and local power. This is made clear by matters stated at

length in amici’s initial brief (hereinafter cited as “Prior

Brief”). Because of limitations of space, such matters

shall only be recapitulated in a cursory way here. For a

fuller exposition of them amici respectfully refer the

Court to the earlier brief.

A. To begin with, publicly owned mass transit is a

vital governing function of local jurisdictions. It serves

critical needs of tens of millions of their citizens, espe-

cially minorities, the poor, the elderly, and the handi-

capped. Prior Brief at 3. It is also critical to business

development in urban areas, and to avoid further pollu-

tion and traffic congestion. Id. at 2, 3.

Thus, publicly owned mass transit systems are one of

the vital infrastructure services of urban areas. Prior

Brief at 4, 18-19, 20-21. Local governments have his-

torically provided a host of important infrastructure

services, id. at 18-19, 20-21, and long were directly in-

volved with transportation infrastructure services in

two different ways. FJ rom time immemorial’ ” local

governments built and maintained roads, id. at 20, quot-

ing Molina Estrada v. Puerto Rico Highway Authority,

680 F.2d 841, 845 (Ist Cir. 1982), and for many decades

they extensively regulated privately owned transit sys-

tems. Id. at 4-5.

Ultimately, citizens’ vital need for mass transit services

made it necessary for local governments to go beyond

regulation of transit, and to own mass transit systems

instead. For transit systems long ago became unprofitable

for private companies, which began to go out of business

in droves. Prior Brief at 5. This spelled disaster for

tens of millions of citizens. Ibid. To prevent an urban

debacle, local governments had to take over the owner-

ship of mass transit systems all over the country. Ibid.

Thus by 1980, public transit systems accounted for 94

percent of all riders, 93 percent of total vehicle miles,

and 90 percent of total transit vehicles. Id. at 2.

services. Jd. at 6-7.

For all these reasons, then, the provision of mass tran-

sit services is an essential governmental function of local

jurisdictions.

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pulsory arbitration. Transit employees are thus assured

of fair treatment.“

E. Finally, the FLSA is not tailored to further a fed-

eral interest in a manner that works the least harm to

the ability of local jurisdictions to perform a crucial gov-

ernmental function. To be so tailored the FLSA would

have to take account of the need to have split shifts

and to provide premium pay for a significant number

of normal working hours. But as said above, the FLSA

does not consider these matters. Instead it imposes wage

and hour requirements that limit the flexibility of pub-

licly owned mass transit systems, that would greatly in-

crease the costs and losses of these systems and that

would decrease their ability to adequately serve the

public.”

11 The foregoing federal interests expressed in the FLSA are the

only ones at issue here. There is not and could not be a claim that

any other federal interest is at stake. Thus there is no claim that

application of the FLSA to transit workers is necessary to assure

the adequate purchasing power upon which the national economy

depends. Nor is there any claim that federal regulation is neces-

sary because state and local governments have been unable to

derive local solutions for labor problems having a serious adverse

national impact. All such claims would be frivolous.

12 The brief of the Solicitor General seeks to elide these points by

claiming that, under 29 U.S.C. 207 (e) (5) and (7), the FLSA ex-

pressly provides for exclusion of various forms of ‘extra compen-

sation’ in establishing an employee’s regular rate of pay.” Thus,

says the Solicitor General, “it has never been determined . . that

existing premium pay arrangements [for public transit workers]

must be treated as part of the ‘regular rate’ to which overtime is

applied.” Supp. Br. Sec. at 29-30, n. 11.

The Solicitor General’s interpretation of the law is insupportable

on the face of the statute—it is indeed contradictory to the plain

language of the statute. To be excluded under § 207 (e) (5) from

the employee’s “regular rate” of pay, premium payments must be

made for hours worked (1) in excess of eight per day, or (2) in

excess of the employee’s normal or regular hours, or (3) in excess

of his maximum workweek. But the premium payments made by

public mass transit systems are for work done within these limita-

tions, not in excess of them. That is, they are for work that is part

V. The Three-Pronged Test Currently in Use is Unsatis-

factory. It Fails to Protect Federalism and Each

Preng Gives Rise to Serious Difficulties

Amici believe the balancing test described above should

replace the current three-pronged test developed under

NLC and its progeny.” In amici’s view, the three-

of the employee’s eight hour workday, and that is within his regular

and normal workday and workweek. Thus, under § 207(e) (5) such

premium payments are not excludable from the employee’s regular

rate.

To be excludable under § 207(e)(7) from an employee’s regular

rate, premium payments must be made for work in excess of the

employee’s normal or regular workday or workweek and must be

at least one and one-half times the rate established for such work-

day or workweek. But, again, the premium payments made by

public transit systems are for work done within the regular work-

day and workweek. Nor are they necessarily one and one-half

times the rate for such workday or workweek. For both these rea-

sons they are not excludable from the regular rate under § 207(e)

(7) either.

Finally, after erroneously claiming that under the statute pre-

mium payments are excludable from the regular rate, the Solicitor

General argues that, even if they are not excludable “in some

cities,” the FLSA would not require “that overtime be paid on the

basis of such premium rat 3 in the future.” For “it remains open to

management and labor to renegotiate existing premium pay ar-

rangements in light of the requirements of the FLSA to assure

that aggregate compensation is not increased.” This argument, of

course, is a direct concession that the FLSA would interfere with

local governments’ ability, under existing arrangements, to carry

out the important function of providing mass transit. The argu-

ment also is a burdensome demand that, to satisfy the FLSA, local

governments should renegotiate carefully drafted and often con-

troversial collective bargaining agreements.

13 If the three-pro: ged test were to remain the governing stand-

ard under the Tenth Amendment, ten it should be construed in

accordance with principles urged in amici’s briefs. Under those

principles the judgment in favor of appellees must be affirmed.

We also note that the balancing test suggested by amici has ele-

ments in common with two doctrines utilized under the three-

pronged test. One such doctrine is the Court’s oft-repeated state-

ment that Congress cannot exercise power in a fashion that

impairs the States. . ability to function effectively in a federal

pronged test is unsatisfactory because it fails to protect

federalism and because each of the prongs presents seri-

ous intellectual and practical difficulties.“ That the test

provides little protection for federalism is shown by the

fact that it seems to be extraordinarily difficult for state

and local power to survive under it. State and local power

has been defeated in every case decided under the test in

this Court and in nearly every one of the large number

of cases decided under the test in lower courts.““ Further-

more, such losses can be expected because, as shown by

system“ NLC v. Usery, supra, 426 U.S. at 843, quoting Fry,

supra, 421 U.S. at 547; United Transportation Union v. Long

Island Railroad Company, 455 U.S. 678, 686-687 (1982). The

other is that, even if the three-pronged test is met, the state or

local interest might be overridden if the federal interest is powerful

enough to justify submission.

While amici strongly disagree with the three-pronged test,

they find it understandable that its various prongs were developed

in cases subsequent to NLC v. Usery. For a number of those cases

exercised hydraulic pressures upon the decisionmaking process. See,

e.9., Hodel v. Virginia Surface Mining and Reclamation Association,

Inc., supra, and FERC v. Mississippi, supra. Such cases presented

critical national economic problems relating to energy shortages

and despoliation of the environment. Individual states were unable

to solve the problems, in part because they were rivals in promoting

the industries which caused them. Extensive hearings on the prob-

lems had been held by organs of the federal government, and na-

tional solutions had been painfully worked out over extensive

periods of time. In the circumstances there were hydraulic pres-

sures to aviod striking down the crucial federal efforts, and it is

understandable that the cases resulted in standards adverse to

state power.

15 In addition to cases cited in amici's initial brief (p. 8, n. 7),

see, e.g., Nance v. Environmental Protection Agency, 645 F.2d

701 (9th Cir.), cert. denied, 454 U.S. 1081 (1981); Hughes Air

Corp. v. Public Utilities Commission of the State of California, 644

F.2d 1334 (9th Cir. 1981); United States v. Helsley, 615 F.2d 784

(9th Cir. 1979); Vehicle Equipment Safety Commission v. Na-

tional Highway Traffic Safety Commission, 611 F.2d 53 (4th Cir.

1979); Public Service Co. of North Carolina v. Federal Energy

Regulatory Commission, 587 F.2d 716 (5th Cir. 1979); Hewlett-

Packard v. Barnes, 425 F.Supp. 1294 (N.D. Cal. 1977), aff'd, 571

F.2d 502 (9th Cir. 1978) ; Standard Oil Co. v. Agsalud, 442 F.Supp.

695 (N.D. Cal. 1977); Friends of the Earth v. Carey, 552 F.2d 25

an analysis of each of the three prongs, they inherently

are a graveyard for state and local powers.

A(i). The first prong is that federal action must reg-

ulate the state qua state. This prong enables the na-

tional government to defeat state governing authority

by directing its action toward private parties instead of

overtly regulating the states. In this way the national

government can override state power, without possibility

of Tenth Amendment challenge, even in areas that may

properly be within the governing province of state and

local governments.

The point can be illustrated by numerous examples.

For instance, this Court has ruled that state and local

governments have the power to locate their capitals

where they wish. NLC v. Usery, supra, 426 U.S. at

845, citing Coyle v. Oklahoma, 221 U.S. 559 (1911).

The same would be true regarding state schools, libraries,

hospitals and abortion clinics. A federal law which says

“the state of X shall not locate” one of these institutions

in a particular area is a regulation of the state qua

state. The law therefore would be challengeabie under the

Tenth Amendment. But the national government could

escape this limitation on its power by simply saying that

“no individual shall participate” in constructing the in-

stitution in a particular area. Because the federal law

is now addressed to individuals rather than the state, it

is now unassailable under the Tenth Amendment.

The same type of example can be extended into every

single area of state and local authority, and the argu-

ment has in fact been used by the national government

in various areas of state power. Thus, the point applies

whether one is discussing work done by state and local

employees (as in the current case), speed limits ap-

plied on local roads, state efforts to stop pollution, state

and local efforts to cure slums, or any other matter. In

every instance, state authority can be thwarted by simply

(2d Cir. 1977); Puerto Rico Telephone Co. v. FCC, 553 F.2d 694

(1st Cir. 1977).

addressing a federal law to individuals rather than to

the state itself. The state qua state requirement thus

provides the national government with a ready escape

from Tenth Amendment limitations on its power.

(ii). The national government argues for retention

of the state qua state requirement. It says the require-

ment is necessary because Congress possesses exclusive

and undivided power over interstate conimerce, and can

preempt state laws regulating private activity that af-

fects such commerce. For these reasons it asserts that

the Supremacy Clause demands the requirement. Supp.

Br. Sec. at 10-11.

Of course, it is incorrect to assert that Congress has

sole power over interstate commerce. As recognized in

cases from John Marshall’s time to the present day, the

states too have power over aspects of such commerce.

E. g., Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824);

Cooley v. Board of Wardens of the Port of Philadelphia,

53 U.S. (12 How.) 299 (1851); Huron Portland Cement

Co. v. City of Detroit, 362 U.S. 440 (1960). This is

even more true now than in former years, since today

the concept of interstate commerce has been expanded

to the point where it encompasses actions which are

basically local in character though they have some small

or remote effect on interstate commerce.

Beyond this, there is no reason why the state qua

state requirement is needed to carry out Congress’ power

to regulate interstate commerce. In appropriate cases

that power can prevail regardless of whether a federal

action is directed to states or to private parties. The

commerce power is central to the creation of the national

government. If it is invoked for purposes also central

to such creation—e.g., to stop state discrimination

against interstate commerce—and if its use is tailored

to accomplish the federal objective with the least harm

to state authority, then the federal action will prevail.

Finally, the Supremacy Clause in no way mandates the

state qua state requirement. The Clause says that the

Constitution and laws of the United States pursuant

thereto are the supreme law of the land. This mandate

has nothing te do with whether a Congressional law

affects private parties or states.

B. The second prong is that the federal action must

affect “indisputabl[e] ‘attribute[s] of state sovereignty’.”

Hodel, supra, 452 U.S. at 287-288, quoting NLC, supra,

426 U.S. at 845. This prong causes “difficulties,” since

its meaning is “somewhat unclear” and there has been

“little occasion to amplify on our understanding of the

concept.” EEOC v. Wyoming, supra, —— U.S. at ——,

103 S.Ct. at 1061 & n. 11. Beyond this, the concept seems

redundant and unnecessary because any power required

for states to effectively govern and serve their citizens

should be an attribute of state sovereignty.

Moreover, the requirement that a power be an indis-

putable attribute of state sovereignty is enormously de-

structive of state power and of federalism. For the state

and its sovereignty can continue to exist even if numer-

ous powers are stripped from it, and such powers thus

are not indisputable attributes of state sovereignty. For

example, the state and its sovereignty can exist even

though the state does not provide schools, or even though

it does not provide hospitals and other health facilities,

or even though it does not provide parks and recreation

facilities, or even if it does not provide fire protection,

or even if it does not clear

necessary to do these things are thus not indisputable

attributes of sovereignty, and under the second prong

would be ineligible for Tenth Amendment protection even

though the Court has already stated in NLC and its

pregy tet many of Ghese powers ove attributes of

sovereignty.

C. The third prong is that federal action must “di-

rectly impair [the states’) ability to structure integral

operations in areas of traditional governmental func-

tions.” Hodel, supra, 452 U.S. at 288. There are several

unsatisfactory aspects of this prong.

state authority by couching a law in terms of what in-

dividuals can do rather than in terms of what states can

do. The direct effect of the law would be on persons but

certain lower tribunals have held that the powers of

Council, 699 F. 2d 1060 (11th Cir. 1983), petition for

cert. filed sub nom. Macon v. Joiner, No. 82-1974, 51

U.S.L.W. 3884. Such holdings have arisen though this

1 If these or similar activities were excluded from “integral

operations,” such exclusion would be inconsistent with the essential

principle that, subject to the limitations of the federal and state

constitutions, the states may perform any function which is neces-

sary to serve their citizens and is authorized by appropriate state

governmental processes.

owned by private companies. /d. at 16-18. In its supple-

mental brief, the government says the standards for de-

Beas

3283

1155

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3325

1741

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iit

will not be unconstitutional except insof ar

— states from later undertaking efforts

1121

17 In analogous situations this Court has often ruled that statutes

lawful on their face are unconstitutional as applied to specific fact

blood of the living Constitution. This Court’s view of the

federal government’s power to regulate economic affairs

a different appreciation of the

ment for denying protection to states. It is, rather, an

example of the vitality of the Constitution.

D. Thus, each prong of the three-prong test has seri-

ous deficiencies, and individually and collectively the

prongs gravely impair the power of states in our federal

system. Rather than follow the three-pronged test, the

Court should adopt the balancing test urged by amici.

That balancing test is fair to both the national and state

governments, is consistent with federalism, and comports

with the balancing approach followed by this Court in

many other areas of the law.

CONCLUSION

For the foregoing reasons, and those stated in amici’s

prior brief, this Court should affirm the decision below.