Amicus Curiae Brief — Wilson, Governor of California v. Biggs

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No. 93-772

In the

Supreme Court of the United States

October Term, 1993

PETE WILSON, Governor of the State of California;

JAMES W. VAN LOBEN SELS, Director of the

California Department of Transportation,

Petitioners,

WILLIAM BIGGS, et al,

Respondents.

Petition for Writ of Certiorari to the

Court of Appeals for the Ninth Circuit

’

MOTION FOR LEAVE TO FILE BRIEF AMICUS

CURIAE AND BRIEF AMICUS CURITAE OF PACIFIC

LEGAL FOUNDATION IN SUPPORT OF THE

PETITION FOR WRIT OF CERTIORARI

* RONALD A. ZUMBRUN

ANTHONY T. CASO

JOHN G. SCHMIDT, JR.

*Counsel of Record

Pacific Legal Foundation

2700 Gateway Oaks Drive, Suite 200

Sacramento, California 95833

Telephone: (916) 641-8888

Attorneys for Amicus Curiae,

Pacific Legal Foundation

BEST AVAILABLE COPY

No. 93-772

In the

Supreme Court of the United States

October Term, 1993

PETE WILSON, Governor of the State of California;

JAMES W. VAN LOBEN SELS, Director of the

California Department of Transportation,

Petitioners,

WILLIAM BIGGS, et al,

Respondents.

Petition for Writ of Certiorari to the

Court of Appeal for the Ninth Circuit

MOTION FOR LEAVE TO FILE BRIEF AMICUS

CURIAE OF PACIFIC LEGAL FOUNDATION IN

SUPPORT OF THE PETITION FOR WRIT OF

CERTIORARI

Pursuant to Supreme Court Rule 37, Pacific Legal

Foundation (PLF) respectfully moves this Court for leave to

file the attached amicus curiae brief in support of the petition

for writ of certiorari. Written consent to the filing of this

brief has been granted by counsel for petitioner and has been

lodged with the Clerk of this Court. Counsel for respondent

Biggs has withheld consent, necessitating the file of this

motion.

IDENTITY AND INTEREST OF AMICUS CURIAE

Pacific Legal Foundation is a nonprofit, tax-exempt

corporation organized under the laws of the State of

California for the purpose of engaging in litigation in matters

affecting the public interest. PLF has over 20,000 contri-

butors and supporters located throughout the country and

maintains its principal office in Sacramento, California. The

Foundation’s policy is set by a Board of Trustees composed

of concerned citizens, the majority of whom are attorneys.

PLF’s Board evaluates the merits of any contemplated legal

action and authorizes such action only where the

Foundation’s position has broad support within the general

community.

Amicus seeks here to augment the argument in the

petition for writ of certiorari. It is: believed that PLF’s

public policy perspective and litigation experience in support

of individual rights and government accountability will

provide an additional viewpoint with respect to the

constitutional issues presented. PLF has participated in

numerous cases involving issues arising under the Tenth

Amendment and the Commerce Clause of the United States

Constitution, as well as various cases involving government

accountability (e.g. state tax reform issues, Cal. Const.

Art. XIIIA ("Proposition 13" property tax rollback); state

term limit litigation, see Cal. Const. Art. IV, § 1.5, et seq.

(Proposition 140)); giving PLF extensive knowledge of the

constitutional issues presented. See, e.g., Chevron, U.S.A.,

Inc. v. Natural Resources Defense Council, Inc., 467 U.S.

837 (1984), Nordlinger v. Hahn, 120 L. Ed. 2d 1 (1992);

Environmental Protection Agency v. Brown, 431 U.S. 99

(1977); Hoffman Homes, Inc. v. Environmental Protection

Agency, 999 F.2d 256 (7th Cir. 1993); Legislature v. Eu,

54 Cal. 3d 492 (1991), cert. denied, 503 U.S. _, 117 L.

Ed. 2d 516 (1992). Thus, Pacific Legal Foundation’s

ill

concern is not for the State of California as a political entity,

but for the accountability of that entity to its citizens.

In 1787, the individual States of this country delegated

certain enumerated powers to the National government. A

necessary (and often ignored) precursor to this delegation

was the authorization by the citizens of these respective

States, which allowed the States to make such a delegation.

This “agency” provided the foundation and rationale of our

federal system, with the States, as separate and indestructible

entities, operating as a bulwark against the threat of an over-

centralized, unresponsive and unrepublican National

government.

Shortly after this delegation was made, its limited nature

was emphasized in the Tenth Amendment:

The powers not delegated to the United States by the

Constitution, nor prohibited by it to the States, are

reserved to the States, respectively, or to the people.

U.S. Const. Amend. X (emphasis added). This amendment

(and it should be stressed that it amended the Constitution)

not only highlights the sanctity of the sovereignty of the

individual States, but premises that sanctity on the

reservation of power to the people.

The Ninth Circuit ignored both the limited delegation

of power to Congress embodied in the interstate Commerce

Clause and the reservation of power to the States and the

people. Amicus believes that the opinion below improperly

construed the Fair Labor Standards Act (FLSA), improperly

interfered with the sovereign functions of a state that go to

the heart of representative government, ignored the limits the

Tenth Amendment imposes on the congressional commerce

power, improperly applied the "plain statement" rule, and

improperly applied the principles enunciated by this Court in

Gregory v. Ashcroft, 501 U.S. __, 115 L. Ed. 2d 410

(1991), and New York v. United States, 505 U.S. __,

120 L. Ed. 2d 120 (1992). In short, the court below

unnecessarily rendered the government unaccountable to its

constituents.

For the foregoing reasons, Pacific Legal Foundation

requests that its motion to file the amicus curiae brief which

follows be granted.

DATED: December, 1993.

Respectfully submitted,

*RONALD A. ZUMBRUN

ANTHONY T. CASO

JOHN G. SCHMIDT, JR.

*Counsel of Record

Pacific Legal Foundation’

2700 Gateway Oaks Drive,

Suite 200

Sacramento, California 95833

Telephone: (916) 641-8888

ANTHONY T. CASO

Attorneys for Amicus Curiae,

Pacific Legal Foundation

TABLE OF CONTENTS

Page

IDENTITY AND INTEREST OF AMICUS CURIAE . 11

TABLE OF AUTHORITIES CITED 2 .....2222. vi

CPU UGA 8 ee ee eS Oe ee 2

STATEMENT OF fhe Gee 459 64 OSes 3

SUMMARY GF THE ARGUMEN! 0065 6.6.54 5. 4

REASONS FOR GRANTING THE WRIT ........ 5

I. THE NINTH CIRCUIT’S CONSTRUCTION

OF THE FLSA RENDERS THAT ACT

UNCONSTITUTIONAL IN THAT IT

UNNECESSARILY INTRUDES UPON THE

SOVEREIGNTY OF THE PEOPLE OF THE

SATE OP CALI 6 ee ee ee 5

Il. THE NINTH CIRCUIT IGNORED THAT THE

FRAMERS OF THE CONSTITUTION INTENDED

A BALANCE OF POWER BETWEEN THE STATES ©

AND FEDERAL GOVERNMENT THAT WOULD

PRESERVE THE REPUBLICAN CHARACTER

OF Tees UE 8G AG ek wa eee ee 8

III. WHAT REMAINS OF THIS COURT’S OPINION IN

GARCIA V. SAN ANTONIO METROPOLITAN

TRANSIT AUTHORITY WAS IMPROPERLY

APPLIED TO THE PRESENT CASE BY

Fikes FRRUS ee GG 6 ec oe oe ee ee 12

Page

IV. THE NINTH CIRCUIT ERRED BY NOT

APPLYING THE "PLAIN STATEMENT

RULE" TO THE FLSA IN THE SAME

MANNER THIS COURT HAS APPLIED

it TO ‘Tee ADGA. s0 0 ce 0 ee eee eae 15

CUINLLAJSEUNS ot ete wee eee es oes ae ee

Vil

TABLE OF AUTHORITIES CITED

Page

CASES

Atascadero State Hospital v. Scanlon,

ie ee Pe ON errr 7

Duncan v. McCall, 139 U.S. 449 (1891)... .. 5,11,13

EEOC v. Wyoming, 460 U.S. 226 (1983) ........ 15

Environmental Protection Agency v. Brown,

Cre Was SP GUOEE «4 ot Sauce ee 1]

Erie R. Co. v. Tompkins, 304 U.S. 64 (1938) ..... 13

Garcia v. San Antonio Metropolitan

Transit Authority, 469 U.S. 528 (1985)... 4,6-7,11,13

Gibbons v. Ogden, 22 U.S. | (1824) ........... 10

Gregory v. Ashcroft, 501 U.S.

115 L. Ed. 2d 410 (1991) 2... passim

Hodel v. Virginia Surface Mining and

Reclamation Act, 452 U.S. 264 (1981) ......... 13

Maryland v. Environmental Protection Agency,

aoe Ba ole Ce Ge BOtOD x sk ea a es ORR oS 1]

National League of Cities v.

eaey, Soe Ua. Bae CIMA x ww nec cebkceun 6

Viil

Page

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

3. a ere ee ee er ore eee 5

New York v. United States, 505 U.S. —__

oc fo Se GY At. re passim

Parr v. State of California, 811 F. Supp.

, og 8 Me OR ee re 3

Sugarman v. Dougall, 413 U.S. 634 (1973) ..... 5,11

Texax v. White, 74 U.S. 700 (1871) ........... 14

United States v. Darby, 312 U.S. 100 (1941) ...... 10

UNITED STATES CONSTITUTION

eM TE = 5 54d ae we a 10

IS ck othe ae Ge O48 RO 10

Se eae a aa ake alae eee ee ee 10

ones a aad cinta ae ae ee 10

a PI <5 gy co 6 6 he 6 bee eo passim

Fourteenth Amendment.................. 14-15

Ss 2 a 5 4 ae ee ek ek 10

CALIFORNIA CONSTITUTION

ec aes @ eee has 2 he ae ae Pee ee 8 a

Page

ea Es Ss ee Se a ee ee ee eee 5

Pe SE aaa Tal se anaes ats a eee 5

STATUTES

ee 6 Gee es Bee a oa ee ie hehe: 6

S. Rep. No. 159, 99th Cong., Ist Sess. (1985)

reprinted in 1985 U.S.C.C.A.N. (1986) ........ 6

Be We ey 6 - ke ead wend 15

S. Rep. No. 1487, 89th Cong.

2d Sess. (1966), reprinted in

1966 U.S.C.C.A.N. 3002-04 ........... Se ate

a as © Ong Oe Se ee a Be ee ne ks 6

MISCELLANEOUS

The Tenth Amendment: A "New" Limitation on

Congressional Commerce Power, 45 Rutgers

ss a AO CI > boo oe oh a ew week 11

The Federalist No. 22

(Alexander Hamilton).................... 8

The Federalist No. 32

(Alexander Hamilton).................... 10

The Federalist No. 45 (James Madison).......... 7)

The Federalist No. 84

Seue I oa) re we Se ee ee el 10

The Proper Scope of the Commerce Power,

72 Vis hig Be a ae eee a 10

Letter from the Federal Farmer (October 8, 1787)

reprinted in The Antifederalist Papers and

Constitutional Convention Debates 257,

(Rate Mtoe, 6. IFG0) ow 6 ce oe es 6

H.R. Rep. No. 913 93rd Cong., 2d Sess. (1974),

reprinted in 1974 U.S.C.C.A.N. 2822-53

‘ot = | SEAN Es See vned See eR inans =. «eran c Muay ae ameese 6

II The Debates of the Several Siates Conventions

on the Adoption of the Federal Constitution

as Recommended by the General Convention at

Philadelphia in 1787 at 62 (Jonathan Elliott,

es er i UE ise ee oy eee es 8

Beg ee Ge er a 9

ow Bae © Ee BED hea ee ce eee es 9

Laurance J. Tribe, American Constitutional Law

a oe a rk 7

No. 93-772

In the

Supreme Court of the United States

October Term, 1993

PETE WILSON, Governor of the State of California;

JAMES W. VAN LOBEN SELS, Director of the

California Department of Transportation,

Petizioners,

WILLIAM BIGGS, et al,

Respondents.

Petition for Writ of Certiorari to the

Court of Appeals for the Ninth Circuit

BRIEF AMICUS CURIAE OF PACIFIC LEGAL

FOUNDATION IN SUPPORT OF THE PETITION

FOR WRIT OF CERTIORARI

INTEREST OF AMICUS CURIAE

The interest of amicus curiae is set forth in the

preceding motion and is adopted herein.

OPINION BELOW

The opinion of the Ninth Circuit Court of Appeals is

reported at Biggs v. Wilson, 1 F.3d 1537 (9th Cir. 1993).

The court below, in affirming a lower court decision, 828 F.

Supp. 774 (E.D. Cal. 1991), held that the Fair Labor

Standards Act, 29 U.S.C. § 201, et seq. (FLSA), contained

an implied “prompt payment" requirement that required the

State of California to pay its employees "promptly," in

derogation of the California constitutional and statutory

provisions governing the State’s budget process. 1 F.3d

at 1539-44. Through these state constitutional and statutory

provisions, the California voters have prohibited the

expenditure: of their taxes for any purpose until the

Legislature has enacted, and the Governor has signed, a

budget for that fiscal year. These provisions have been in

place as far back as 1922.

The Ninth Circuit further held that adherence to its

implied "prompt payment" requirement did not violate the

State of California’s sovereignty under the Tenth

Amendment. /d. at 1543-44. In the court’s eyes, the FLSA

was "to be liberally construed to apply to the furthest reaches

consistent with Congressional direction." /d. "To the extent

compliance with the FLSA interferes with the state budgetary

process, that interference is caused by state law, not federal

law. The FLSA does not require California to pass a budget

on time; it only requires California to do what all employers

must do--pay its employees the minimum wage on payday."

Id. at 1543. The court seemed to say that the State’s remedy

lies in ignoring its constitution and the will of the California

electorate or, in the alternative, hastily enact a potentially

wasteful or incomplete state budget solely for the purpose of

complying with the Ninth Circuit’s "prompt payment"

requirement.

The Ninth Circuit also distinguished this Court’s-

opinion in Gregory v. Ashcroft, 501 U.S. ___, 115 L. Ed. 2d

410 (1991), stating that the “plain statement" rule was

inapplicable to the present case because "the FLSA clearly

applies to state employees such as Biggs." 1 F.3d at 1544.

The Ninth Circuit did not address the issue of whether a

State’s constitutionally mandated budget process was worthy

of heightened scrutiny as a matter that went to the heart of

representative government. See Ashcroft, 115 L. Ed. 2d

at 421-28. This Court’s opinion in New York v. United

States was also found to be inapplicable because the Ninth

Circuit read that case as dealing solely with the scope of

Congress’ Commerce Clause powers, not the Tenth

Amendment protection of a State’s existence as a separate

and viable political entity. 1 F.3d at 1544.

STATEMENT OF THE CASE

Pacific Legal Foundation adopts Governor Wilson’s

Statement of the Case and incorporates that portion of the

Governor’s Petition for Certiorari herein with the following

amplification: The People of California have exercised their

prerogative in requiring that a state budget be enacted by the

Legislature and signed by the governor before the

government may spend one dollar of the taxpayers’ money.

See Cal. Const. Art. IV, § 12, et seg., Cal. Govt. Code

§ 13340. For the time period in question, the State of

California had no authority to issue pay "warrants" in lieu of

paychecks. See id. Further, another recent federal court

case found that such pay warrants, issued in subsequent

years, were also in violation of the FLSA. Parr v. State of

California, 811 F. Supp. 507 (E.D. Cal. 1992). Thus, the

impact of the Ninth Circuit’s decision on California’s

sovereignty, and its citizens’ ability to maintain control over

their government, will be extreme. The impact on state

employees (not to mention interstate commerce) was

minimal, because the state employees, along with the myriad

benefits peculiar to state employment, were guaranteed their

Salaries as soon as a budget was enacted. Further, state

employees have different contractual expectations than

private sector employees. State workers take their jobs with

the knowledge that they are public servants, that their

paychecks are paid with tax dollars, and are subject to the

above-mentioned state constitutional and statutory provisions.

SUMMARY OF THE ARGUMENT

In Biggs v. Wilson, the Ninth Circuit Court of Appeals

erred in construing the FLSA to contain an implied "prompt

payment” requirement. Such a requirement renders that Act

unconstitutional in that it unnecessarily intrudes upon the

sovereignty of the people of the State of California. Control

of its own budget and law-making process by a State is one

of the greatest attributes of state sovereignty. Thus, the

court below improperly rejected a Tenth Amendment

challenge to its "prompt payment" requirement because, in

its eyes, the FLSA did not require that California pass its

budget on time, the California constitution did.

Additionally, the court below ignored the intent of the

Framers and Ratifiers of the Constitution to have the States

act as a check on federal tyranny. The Ninth Circuit’s

opinion renders that check meaningless.

Further, the Ninth Circuit failed to distinguish

Garcia v. San Antonio Metropolitan Transit Authority,

469 U.S. 528 (1985), which, because of the nature of the

present case, is easily distinguished.

Finally the court below improperly distinguished

Gregory v. Ashcroft and New York v. United States. It

ignored the "plain statement" rule which requires that the

judiciary not construe an ambiguous statute so as to intrude

on state functions that go to the heart of representative

government. A State’s budgetary process, as well as its law-

making powers, epitomize a state function that goes to the

heart of representative government.

To allow the Ninth Circuit opinion to stand would be

to ignore the intent of the Framers of the Constitution and

the nature and spirit of our system of dual sovereignty.

REASONS FOR GRANTING THE WRIT

THE NINTH CIRCUIT’S CONSTRUCTION OF THE

FLSA RENDERS THAT ACT UNCONSTITUTIONAL

IN THAT IT UNNECESSARILY INTRUDES UPON

THE SOVEREIGNTY OF THE PEOPLE OF THE

STATE OF CALIFORNIA

Control of its own budget and lawmaking process by a

State is one of the greatest attributes of state sovereignty.

Duncan v. McCall, 139 U.S. 449 (1891). See also

Sugarman v. Dougall, 413 U.S. 634 (1973); Gregory v.

Ashcroft, 115 L. Ed. 2d; and New York v. United States,

505 U.S. ___, 120 L. Ed. 2d 120 (1992). The ability to

raise and spend revenue in a manner and amount seen fit by

the citizens of a State is the lifeblood of sovereign existence.

In the State of California, this issue is of particular

importance with a citizenry that has become particularly

active through the form of the initiative and referendum in

creating "the structure of its government," Ashcroft, 115 L.

Ed. 2d at 423. Choosing to “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, 311 (1932) (Brandeis, J. dissenting)), various

state constitutional amendments have been enacted in an

effort to curtail the proclivity of government to expand itself.

E.g., Const. Art. IV, § 12; Art. XIIIA (Proposition 13

property tax roll-back and limitation); Art. XIIIB

(government spending limitation); Art. IV, § 1.5, et seq.

(Proposition 140 state term limits and legislative spending

cap). See also Govt. Code § 526a (citizen suit to prevent

government funds).' This is a great benefit of our federal

system where "[d]ifferent laws, customs, and opinions exist

in the different states, which by a uniform system of laws

would be unreasonably invaded." Letter from the Federal

Farmer (October 8, 1787), reprinted in The Antifederalist

Papers and Constitutional Convention Debates 257, 264

(Ralph Ketcham, ed. 1986).

The FLSA, 29 U.S.C. § 201, et seq., deals almost

exclusively with minimum wages and overtime compensation.

See 29 U.S.C. § 201, et seq.; S. Rep. No. 1487, 89th Cong.

2d Sess. (1966), reprinted in 1966 U.S.C.C.A.N. 3002-04.

Its legislative history and the precedent construing the Act

have all dealt with it in terms of the effect minimum wage

and overtime compensation requirements would have on the

States’ ability to function as independent and indestructible

entities. See, e.g. H.R. Rep. No. 913, 93d Cong., 2d Sess.

(1974), reprinted in 1974 U.S.C.C.A.N. 2811-53 (1975);

National League of Cities, 426 U.S. at 837-55; and Garcia,

469 U.S. at 554-55. The effect was deemed minimal and the

Act a constitutional exercise of congressional commerce

power. See Garcia, 469 U.S. at 554-55; S. Rep. No. 159,

99th Cong., Ist Sess. (1985), reprinted in 1985

U.S.C.C.A.N. 664 (1986).

Under the "prompt payment" requirement, however, the

state legislators are rendered unaccountable to their citizens

and to their state constitution. They must now enact a

budget, no matter how poorly drafted, wasteful,

' In National League of Cities v. Usery, 426 U.S. 833, 846-

47 (1976), overruled by Garcia v. San Antonio Metropolitan

Transit Authority, 469 U.S. 528 (1985), this Court noted the

impact that congressional action could have on California’s

financial well-being under the circumstances of that case. By

comparison, the Ninth Circuit’s opinion in Biggs will have an

even greater negative impact.

inappropriate, or outrageous in the eyes of the polity,

because the Ninth Circuit believes that Congress would

require that state employees be paid promptly on pay day no

matter what the consequences. See Biggs, 1 F.3d at 1544

(Trott, J., dissenting). Under the Ninth Circuit’s

construction of the FLSA, its impact will no longer be

minimal or constitutional. By holding that its "prompt

payment" requirement did not contravene the Tenth

Amendment, the Ninth Circuit stated that any interference

with California’s budget process was created by state law,

not federal law. Biggs, 1 F.3d at 1543. This is the

functional equivalent of finding a gunshot victim guilty _

because he got in the way of the bullet.

In what can only be described as part of "the tyranny of

small decisions" (Laurence H. Tribe, American

Constitutional Law 381 (2d ed., 1988)), the court below has

given "the state-displacing weight of federal law to mere

congressional ambiguity" (see id. at 480). The Ninth Circuit

erred in its construction of the statute, its state sovereignty

analysis, and in its application of this Court’s recent

precedent regarding federal intrusion into the realm of state

governmental functions. See Ashcroft, 115 L. Ed. 2d 410;

New York v. United States, 120 L. Ed. 2d 120; and Garcia,

469 U.S. 528. What the Ninth Circuit did, in effect, was

exercise legislative power in finding the "prompt payment"

requirement, since such a requirement was not “unmistakably

clear in the language of the statute." Afascadero State

Hospital v. Scanlon, 473 U.S. 234, 242 (1985). See also

Ashcroft, 115 L. Ed. 2d at 424.

THE NINTH CIRCUIT IGNORED THAT THE

FRAMERS OF THE CONSTITUTION INTENDED A

BALANCE OF POWER BETWEEN THE STATES

AND FEDERAL GOVERNMENT THAT WOULD

PRESERVE THE REPUBLICAN CHARACTER OF

THE UNION

The Framers of the United States Constitution at

Philadelphia were primarily concerned with the inability of

the Confederation to conduct the business of the nation,

hamstrung as it was, by the overriding reservation of powers

to the States and the "Whiggish" democratic ideals still fresh

from the Revolutionary War. As Alexander Hamilton stated,

“[t]he interfering and unneighborly regulations of some States

. if not restrained by a national control, would be

multiplied and extended till they became not less serious

sources of animosity and discord than injurious impediments

to the intercourse between the different parts of the

Confederacy." The Federalist No. 22, at 144-45 (Alexander

Hamilton) (Clinton Rossiter, ed. 1961). The Framers

believed that their proposed government could sufficiently

provide the stability and unity necessary for a strong

economy and international presence, while at the same time

ensure individual liberty.

The delegates to the various state ratifying conventions,

however, greatly feared consolidation of power in the District

of Columbia. "After we have given them all our money,

established them in a federal town, given them the power

. . . to establish their arbitrary government, what resources

do the people have left?" II The Debates of the Several State

Conventions on the Adoption of the Federal Constitution as

Recommended by the General Convention at Philadelphia in

1787 at 62 (Jonathan Elliot, ed., 2d ed. 1836) (hereinafter

Elliot’s Debates). “Liberty! What is Liberty? The power of -

governing yourselves. If you adopt this Constitution, have

you this power? No: you give it into the hands of a set of

men who live one thousand miles distant from you."

IV Elliot’s Debates 313.

To calm these fears, and assure ratification, the

Federalists claimed that the structure of the Constitution

would protect state sovereignty and personal liberty.

The powers delegated by the proposed Constitution

to the federal government are few and defined.

Those which are to remain in the State governments

are numerous and indefinite .... The powers

reserved to the several States will extend to all the

objects which, in the ordinary course of affairs,

concer . . . the internal order, improvement, and

prosperity of the State.

The Federalist No. 45 at 292-93 (James Madison)

(Clinton Rossiter, ed. 1961) (quoted in Ashcroft, 115 L. Ed

2d at 422 (first alteration in Ashcroft, emphasis added)). As

James Wilson stated at the Pennsylvania ratifying convention:

Whatever object of government is confined, in its

operation and effects, within the bounds of a

particular state, should be considered as belonging

to the government of that state; whatever object of

government extends, in its operation or effects,

beyond the bounds of a particular state, should be

considered as belonging to the government of the

United States.

II Elliot’s Debates 424. Under the unamended Constitution

the States would "alienate" their sovereignty to the new

National government in only three cases:

where the Constitution in express terms granted an

exclusive authority to the Union; where it granted in

one instance an authority to the Union, and in

another prohibited the States from exercising the

like authority; and where it granted an authority to

the Union to which a similar authority in the States

would be absolutely and totally contradictory and

repugnant.

The Federalist No. 32 at 197, 198 (Alexander Hamilton)

(Clinton Rossiter, ed. 1961) (first and second emphasis

added) (discussing U.S. Const. Art. 1, § 8, cl. 17; id. cl. 1;

id. § 10, cl. 2; id. § 8, cl. 4).

This delineation of the spheres of sovereignty was

expressed before the adoption of the Tenth Amendment, or

any other of the first ten amendments to the Constitution. In

fact, Alexander Hamilton predicted that the adoption of a Bill

of Rights would give the National government the "colorable

pretext" to run roughshod over the jurisdictional restraints

imposed on it by the text of the Constitution by legislating

right up to the edge of the first eight amendments. The

Federalist No. 84 at 513 (Alexander Hamilton) (Clinton

Rossiter, ed. 1961). See also Richard A. Epstein, The

Proper Scope of the Commerce Power, 73 VA. L. REV. 1387

(1987). Congress, however, has been permitted to ignore the

Tenth Amendment and encroach on state sovereignty with

impunity since 1937. Even in Gibbons v. Ogden, 22 U.S. 1,

196 (1824), which is often cited for the very broad power

Congress has under the Commerce Clause, it was noted that

the congressional power to regulate interstate commerce was

“complete in itself, may be exercised to its utmost extent,

and acknowledges no limitations other than those prescribed

in the Constitution." Gibbons v. Ogden, 22 U.S. 1 (quoted

in, e.g., United States v. Darby, 312 U.S. 100, 114 (1941)

(emphasis added). In the present case, this Court must

enforce the "limitations prescribed" by the Tenth

Amendment, the "few and defined" nature of congressional

powers, and the guarantee to the States of a republican form

of government, U.S. Const. Art. IV, § 4.

The decision of the Ninth Circuit is horribly inconsistent

with the intent of the Ratifiers, who considered the limitation

of federal encroachment into the realm of the States as the

primary assurance of republican accountability and personal

liberty. Prevalent in every slate of amendments proposed by

the various ratifying conventions was a cali to protect the

sovereignty of the States for this purpose. See John G.

Schmidt, Jr., The Tenth Amendment: A "New" Limitation on

Congressional Commerce Power, 45 RUTGERS L. REV. 417,

426-27 & n.56 (1993).

This Court must therefore correct the error of the Ninth

Circuit in Biggs and continue on the path taken in such cases

as Sugarman v. Dougall, 413 U.S. 634; Gregory v. Ashcroft,

115 L. Ed. 2d 410; and New York v. United States, 120 L.

Ed. 2d 120, to preserve some semblance of balance between

the States and National government, especially when the

issue involves the inherently sovereign act of a State’s budget

process and lawmaking powers, as well as the control of tha

State’s citizens over its taxing and spending habits. Duncan

v. McCall, 139 U.S. at 461. See also Maryland vy.

Environmental Protection Agency, 530 F.2d 215, 225 (4th

Cir. 1975) ("if there is any attribute of sovereignty left to the

States it is the right of their legislatures to pass, or not to

pass, laws"), vacated and remanded for consideration of

mootness sub nom. Environmental Protection Agency v.

Brown, 431 U.S. 99 (1977) (per curiam). To do otherwise

would eviscerate the States’ ability to act not only as a check

on the National government, but as a laboratory for reform

geared to the effective administration of government.

Ill

WHAT REMAINS OF THIS COURT’S OPINION IN

GARCIA V. SAN ANTONIO METROPOLITAN

TRANSIT AUTHORITY WAS IMPROPERLY

APPLIED TO THE PRESENT CASE

BY THE NINTH CIRCUIT

In 1985, the five Justices of this Court that comprised

the majority in Garcia, 469 U.S. 528, rejected "almost 200

years of the understanding of the constitutional status of

federalism ... in support of the view that the role of the

States in the federal system may depend upon the grace of

elected federal officials, rather than on the Constitution as

interpreted by this Court." Jd. at 560-61 (Powell, J.

dissenting). Garcia, however, may be distinguished from the

present case, both in its law and its facts, because that case

dealt solely with the applicability of specific and explicit

federal legislation to persons employed in areas that were

arguably “traditional governmental functions." /d. at 533-47,

554-57. In Biggs, however, the Ninth Circuit added an

"implied prompt payment provision" to the FLSA thus

threatening the independent existence of the States. Thus,

even though the FLSA is generally applicable to both public

and private employers, (unlike the legislation in New York v.

United States, 120 L. Ed. 2d 120), the effect is the same in

that the States, as a check on federal power, are rendered

powerless before an unlimited federal reach.

Additionally, in Garcia this Court stated that the

“principal [but not the sole] means" for ensuring state

sovereignty “lies in the structure of the federal government

itself," 469 U.S. at 550-51 (emphasis added), and "[a]ny

substantive restraint on the exercise of Commerce Clause

powers ... must be tailored to compensate for possible

failings in the national political process. Jd. at 554. Such a

failing was identified in Ashcroft as a legislative ambiguity

(115 L. Ed. 2d at 425-26), and in New York as an attempt to

commandeer the legislative processes of a State (120 L. Ed.

2d at 140, 144 (discussing Hodel v. Virginia Surface Mining

and Reclamation Act, 452 U.S. 264, 288 (1981))). In Biggs,

the Ninth Circuit did not even bother to find an ambiguity,

it crafted its own legislation and, as a result, commandeered

not only the legislative processes of California, but its

constitutional processes and republican form of government

as well. The State of California must now enact a budget,

no matter how poorly drafted, wastefui, inappropriate, or

outrageous in the eyes of the polity because the Ninth Circuit

believed Congress commanded that state employees be paid

promptly on pay day no matter what the consequences.

This Court in Garcia cautioned that there were several

constitutional "postulates which limit and _ control"

congressional power that the federal courts "must look for"

so as to "be faithful to the underlying federal premises of the

Constitution." 469 U.S. at 547. The Garcia majority, while

noting the problems of judicial review, conceded that the

National government cannot devour the essentials of state

sovereignty. /d. The Ninth Circuit failed to realize this.

The Garcia Court also quoted with approval the fact that the

Constitution "recognizes and preserves the autonomy and

independence of the States--independence in their legislative

and independence in their judicial departments." Jd. at 549

(quoting Erie R. Co. v. Tompkins, 304 U.S. 64, 78-79

(1938)). The Ninth Circuit’s ruling ignores this recognition.

Furthermore, an additional "postulate" was identified in

New York and Ashcroft: that federal actions which threaten

the guarantee of a republican form of government must be

reviewed by the judiciary. See Ashcroft, 115 L. Ed. 2d

at 425-26; New York, 120 L. Ed. 2d at 155-57. That this

protection should apply to a state’s lawmaking powers, in the

face of the congressional commerce power, is obvious. See,

e.g., Duncan v. McCall, 139 U.S. 449 (1891). This is

especially so when congressional power under Section 5 of

the Fourteenth Amendment is not at issue. See Ashcroft,

115 L. Ed. 2d at 420-32, 425 n.*.

Even if this Court finds that Congress did intend a

"prompt payment" requirement against the States, this Court

should revisit the holding of Garcia in light of its more

recent decisions in Ashcroft and New York. The Commerce

Clause grants an enumerated, defined power over "commerce

among the several states." The fact that state employees

were paid two weeks late pursuant to state constitutional and

statutory provisions cannot be considered within this grant of

congressional jurisdiction. Further, the Tenth Amendment

emphasizes the structural limits that the Commerce Clause

lmposes On congressional intrusion into state functions that

go to the heart of representative government and gives

substance tc the guarantee to every State of a republican

form of government.

Thus, it is imperative that this Court grant review in this

case to correct the Ninth Circuit’s overbroad interpretation of

the holding of Garcia and the improper construction of the

FLSA. Review is necessary because the ruling of the Ninth

Circuit subverts the constitutional mandate of "an

indestructible Union, composed of indestructible States."

Texas v. White, 74 U.S. 700, 725 (1871).

THE NINTH CIRCUIT ERRED

BY NOT APPLYING THE "PLAIN STATEMENT

RULE" TO THE FLSA IN THE SAME MANNER

THIS COURT HAS APPLIED IT TO THE ADEA

In 1991, this Court construed the federal Age

Discrimination in Employment Act, 29 U.S.C. § 621-34

(ADEA), so as to not conflict with a Missouri state

constitutional provision mandating the retirement of state

court judges at seventy years of age. Ashcroft, 115 L. Ed.

2d 410. The Court framed its approach by noting that

Congress had, in fact, extended the ADEA to the States. Jd.

at 426 (citing EEOC vy. Wyoming, 460 U.S. 226 (1983)

(ADEA extension to States valid under Commerce Clause).

The Ashcroft Court stated, however, that it must be

absolutely certain that Congress intended the specific

intrusion at issue. Jd. The Court went on to hold that,

because of the specific ambiguity in the ADEA as to whether

appointed state court judges were to be included within the

scope of the ADEA, it "would not attribute to Congress an

intent to intrude on state governmental functions ...." Jd. at

430. In the present case, the Ninth Circuit misinterpreted

Ashcroft, the applicability of the plain statement rule, and the

breadth of the FLSA.

The Ashcroft case dealt with the maximum age of state

court judges. The present case deals with the State of

California’s authority over its own budget process and law-

making ability. This latter issue should also be treated by

the federal courts as an issue that "goes beyond an area

traditionally regulated by the States." Jd. The present case

is even more compelling than Ashcroft, since the Ashcroft

Court conducted its analysis of the ADEA under both the

Commerce Clause and Section 5 of the Fourteenth

Amendment. See id. at 420-32. Unlike the Commerce

Clause, the Fourteenth Amendment was intended to intrude

into the sovereign functions of a State (see id. at 425, n.*),

and should give a court pause before striking down

legislation that intrudes into certain sovereign functions of a

State. The FLSA, however, was not enacted pursuant to the

Fourteenth Amendment. It was enacted solely under

Congress’ commerce power. This being the case, the

concerns of a State’s citizens over their State’s budget, "a

decision of the most fundamental sort for a sovereign entity,"

should be accorded much more deference than that given by

the Ninth Circuit. The FLSA does not contain a "plain

statement" of congressional intent to impose a "prompt

payment" requirement on the States. In fact, the statute is

ambiguous, if not indifferent to the issue. The ambiguity in

the FLSA regarding the prompt payment of state employee

wages must therefore be construed in favor of the State of

California and its citizens.

CONCLUSION

The Ninth Circuit’s “implied prompt payment

requirement" in the FLSA is a misconstruction of the intent

and language of the FLSA and contradicts this Court’s plain

Statement rule. Even if it were the intent of Congress to

require such "prompt payment," this would upset the usual

constitutional balance of federal and state powers as well as

violate the Tenth Amendment, the Guarantee Clause, and

the Commerce Clause itself. The Court should therefore

grant review to determine these important constitutional and

Statutory issues and correct the errors of the court below.

DATED: December, 1993.

Respectfully submitted,

“RONALD A. ZUMBRUN

ANTHONY T. CASO

JOHN G. SCHMIDT, JR.

*Counsel of Record

Pacific Legal Foundation

2700 Gateway Oaks Drive,

Suite 200

Sacramento, California 95833

Telephone: (916) 641-8888

Attorneys for Amicus Curiae,

Pacific Legal Foundation

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.