Maryland v. Wirtz/Dissent Douglas

Mr. Justice DOUGLAS, with whom Mr. Justice STEWART concurs, dissenting.

The Court's opinion skillfully brings employees of state-owned enterprises within the reach of the Commerce Clause; and as an exercise in semantics it is unexceptionable if congressional federalism is the standard. But what is done here is nonetheless such a serious invasion of state sovereignty protected by the Tenth Amendment that it is in my view not consistent with our constitutional federalism.

The case has some of the echoes of State of New York v. United States, 326 U.S. 572, 66 S.Ct. 310, 90 L.Ed. 326, where a divided Court held that the Federal Government could tax the sale of mineral waters owned and marketed by New York. My dissent was in essence that the decision made the States pay the Federal Government 'for the privilege of exercising the powers of sovereignty guaranteed them by the Constitution.' 326 U.S., at 596, 66 S.Ct., at 321.

The present federal law takes a much more serious bite. The 1966 amendments to the Fair Labor Standards Act require the States to pay school and hospital employees a minimum wage escalating to $1.60 per hour in 1971. As a general rule, the amendments make the States pay their employees who work over 40 hours a week overtime compensation of 1 1/2 times their regular wage. There are civil sanctions against the State and its political subdivisions, and state officials may, apparently, be subjected to criminal penalties. The impact is pervasive, striking at all levels of state government. As Judge Northrop said in his dissent below, 269 F.Supp. 826, 853:

'By this Act Congress is forcing, under threat of civil     liability and criminal penalties, the state legislature or      the responsible political subdivision of the state

'1. to increase taxes (an impossibility in some of the     political subdivisions without a state constitutional      amendment); or

'2. to curtail the extent and calibre of services in the     public hospitals and educational and related institutions of      the state; or '3. to reduce indispensable services in other  governmental activities to meet the budgets of those   activities favored by the United States Congress; or

'4. to refrain from entering new fields of governmental     activity necessitated by changing social conditions.'

There can be no doubt but that the 1966 amendments to the Fair Labor Standards Act disrupt the fiscal policy of the States and threaten their autonomy in the regulation of health and education. Yet, the Court considers it irrelevant that these federal regulations are to be enforced against sovereign States and limits its consideration to 'whether there is a rational basis for regarding them as regulations of commerce among the States.'

The States are not totally immune from federal regulation under the commerce power of Congress. Parden v. Terminal R. of Alabama, 377 U.S. 184, 84 S.Ct. 1207, 12 L.Ed.2d 233, and United States v. State of California, 297 U.S. 175, 56 S.Ct. 421, 80 L.Ed. 567, subjected state-owned railroads to the Federal Employers' Liability Act, 45 U.S.C. § 51 et seq., and the Safety Appliance Act, 45 U.S.C. § 1 et seq.; Board of Trustees of University of Illinois v. United States, 289 U.S. 48, 53 S.Ct. 509, 77 L.Ed. 1025, required a state university to pay federal customs duties on educational equipment it imported. In State of Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U.S. 508, 61 S.Ct. 1050, 85 L.Ed. 1487, the Federal Government was permitted to condemn 100,000 acres of state land for a reservoir to control commerce-paralyzing floods. In Sanitary District of Chicago v. United States, 266 U.S. 405, 45 S.Ct. 176, 69 L.Ed. 352, a State was prohibited from diverting water from the Great Lakes necessary to ensure navigability, a phase of commerce.

In none of these cases, however, did the federal regulation overwhelm state fiscal policy. It is one thing to force a State to purchase safety equipment for its railroad and another to force it either to spend several million more dollars on hospitals and schools or substantially reduce services in these areas. The commerce power cases the Court relies on are simply not apropos.

In the area of taxation, on the other hand, the Court has recognized that the constitutional scheme of federalism imposes limits on the power of the National Government to tax the States. E.g., State of New York v. United States, 326 U.S. 572, 66 S.Ct. 310, 90 L.Ed. 326. The Court will not permit the Federal Government to utilize the taxing power to snuff out state sovereignty, Metcalf & Eddy v. Mitchell, 269 U.S. 514, 46 S.Ct. 172, 70 L.Ed. 384, recognizing that the power to tax is the power to destroy. M'Culloch v. Maryland, 4 Wheat. 316, 431, 4 L.Ed. 579. The exercise of the commerce power may also destroy state sovereignty. All activities affecting commerce, even in the minutest degree, Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122, may be regulated and controlled by Congress. Commercial activity of every stripe may in some way interfere 'with the (interstate) flow of merchandise' or interstate travel. Katzenbach v. McClung, 379 U.S. 294, 299-330, 85 S.Ct. 377, 381, 13 L.Ed.2d 290. The immense scope of this constitutional power is demonstrated by the Court's approval in this case of regulation on the basis of the 'enterprise concept'-which is entirely proper when the regulated 'businesses' are not essential functions being carried on by the States.

Yet state government itself is an 'enterprise' with a very substantial effect on interstate commerce, for the States spend billions of dollars each year on programs that purchase goods from interstate commerce, hire employees whose labor strife could disrupt interstate commerce, and act on such commerce in countless subtle ways. If constituional principles of federalism raise no limits to the commerce power where regulation of state activities are concerned, could Congress compel the States to build super-highways crisscrossing their territory in order to accommodate interstate vehicles, to provide inns and eating places for interstate travelers, to quadruple their police forces in order to prevent commerce-crippling riots, etc.? Could the Congress virtually draw up each State's budget to avoid 'disruptive effect(s) * *  * on commercial intercourse.'? Heart of Atlanta Motel v. United States, 379 U.S. 241, 257, 85 S.Ct. 348, 357, 13 L.Ed.2d 258.

If all this can be done, then the National Government could devour the essentials of state sovereignty, though that sovereignty is attested by the Tenth Amendment. The principles which should guide us in this case are set forth in the several opinions in State of New York v. United States, supra. As Mr. Chief Justice Stone said there, the National Government may not 'interfere unduly with the State's performance of its sovereign functions of government.' 326 U.S., at 587, 66 S.Ct. at 316. It may not 'impair the State's functions of government,' id., at 594, 66 S.Ct., at 320 (dissenting opinion of Mr. Justice Douglas, joined by Mr. Justice Black). As Mr. Justice Frankfurter observed, '(t)here are, of course, State activities * *  * that partake of uniqueness from the point of view of intergovernmental relations.' Id., at 582, 66 S.Ct. at 314.

Whether, in a given case, a particular commerce power regulation by Congress of state activity is permissible depends on the facts. The Court must draw the 'Constitutional line between the State as government and the State as trader * *  * .' State of New York v. United States, supra, at 579, 66 S.Ct., at 313 (opinion of Mr. Justice Frankfurter). In this case the State as a sovereign power is being seriously tampered with, potentially crippled.

I would reverse the judgment below.