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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1994
- **Citation:** 510 U.S. 1081

## Text

No. 93-772

In the
Supreme Court of the United States

October Term, 1993

rs
ed

PETE WILSON, Governor of the State of California;
JAMES W. VAN LOBEN SELS, Director of the
California Department of Transportation,

Petitioners,
V.
WILLIAM BIGGS, et al,

Respondents.

,
a

Petition for Writ of Certiorari to the
Court of Appeals for the Ninth Circuit

’
i

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

a
~~

* 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

l

No. 93-772

In the
Supreme Court of the United States
October Term, 1993

&
4

PETE WILSON, Governor of the State of California;
JAMES W. VAN LOBEN SELS, Director of the
California Department of Transportation,

Petitioners,
v.

WILLIAM BIGGS, et al,
Respondents.

y%
vy

Petition for Writ of Certiorari to the
Court of Appeal for the Ninth Circuit

Vv

MOTION FOR LEAVE TO FILE BRIEF AMICUS
CURIAE OF PACIFIC LEGAL FOUNDATION IN
SUPPORT OF THE PETITION FOR WRIT OF
CERTIORARI

sa
4

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.

li
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

iV

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

By

ANTHONY T. CASO

Attorneys for Amicus Curiae,
Pacific Legal Foundation

Vv

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

v1

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
16

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

1X

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

yN
4

In the
Supreme Court of the United States
October Term, 1993

rN
4

PETE WILSON, Governor of the State of California;
JAMES W. VAN LOBEN SELS, Director of the
California Department of Transportation,

Petizioners,
wa

WILLIAM BIGGS, et al,
Respondents.

,
bf

Petition for Writ of Certiorari to the
Court of Appeals for the Ninth Circuit

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BRIEF AMICUS CURIAE OF PACIFIC LEGAL
FOUNDATION IN SUPPORT OF THE PETITION
FOR WRIT OF CERTIORARI

»
vv

INTEREST OF AMICUS CURIAE

The interest of amicus curiae is set forth in the
preceding motion and is adopted herein.

y%
Vv

2

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

3

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

4

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.

5

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

6

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.

7

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.

8

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
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

9

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

10

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.

11

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.

12

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

ee

13

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

14

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).

15

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 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

16

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

17

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_0767%3A3. Public record. Not legal advice.