Washington
Public employees' wages, hours involved in Supreme Court case
A SECOND revolution would be sure to erupt, James Madison believed, if anyone ever so much as dared try to disturb the sovereignty guaranteed to the several states by the Constitution. Later, in McCulloch vs. Maryland, Chief Justice Marshall said: "No political dreamer was ever wild enough to think of breaking down the line which separates the states, and of compounding the American people into one common mass." They were both wrong, of course. That wavering line which separates the power of the central government and the independent authority of the states is continuously shifting. More than anywhere else, the contours of federalism are charted in the magnificent marble edifice on Capitol Hill that houses the Supreme Court of the United States. In that highest of judicial tribunals, the words of the Constitution are reinterpreted to meet the needs of a vibrant, changing society.
This fall, as the court begins its new term, it is confronted by a major constitutional case that was left over from the last: National League of Cities et al. vs. John T. Dunlop, Secretary of Labor. Does Congress have the power to regulate the wages and hours of employees of state and local governments under the Fair Labor Standards Act? The issue is of enormous importance, not only because of the millions of dollars in extra overtime pay that will be due police and firemen if the federal provisions are upheld, but also because of the principle involved. What could be more basic to the functioning of state and local government than the terms and conditions of employment of the people who work for these governments?
As often happens, different parts of the Constitution come into play. The Tenth Amendment "reserves" to the states or to the people any powers not specifically granted to the federal government or withheld from the states. Congress was given the authority to regulate commerce "among the several states" in the commerce clause of Article I. To justify the changes it made in the law in 1974 that brought about 11 million state and local government employees under the minimum wage and maximum workweek provisions, Congress had to rely on a concept that the other governments are enterprises engaged in interstate commerce. In 1968 the court went along with the application of this concept to the coverage of workers in state operated hospitals and schools, agreeing that the employees were in the same labor market as those who worked for private hospitals and schools. Whether that 1968 decision (in Maryland vs. Wirtz) is controlling is the main issue in the present case. Last spring, in an opinion written by Justice Thurgood Marshall, the court held (in Fry vs. U.S.) that the 7 per cent limitation on pay raises enforced by the federal Pay Board prevented Ohio from giving state employees a bigger increase. Marshall agreed that Congress may not exercise power "in a fashion that impairs the states' integrity or their ability to function effectively in a federal system," but he said the states are not immune from all federal regulation under the commerce clause. He added that the emergency wage controls would have been ineffective if a sizeable group of employees had been left out. A dissenting opinion by Justice William H. Rehnquist pleaded with his colleagues to reconsider their 1968 precedent.
The first national wage and hours legislation passed in 1938 was intended to promote labor peace by setting minimum standards for working conditions "out of which disputes frequently arise." Lobbying by the public employee unions, which are growing in influence in Washington, produced the 1974 changes in the law. The ranking Democratic and Republican senators on the committee that wrote the bill filed a joint brief with the court. In it they pointed out that more than 16 per cent of the nation's civilian work force is employed either directly by state and local governments or in jobs generated by purchases of goods and services for these governments. "Today's economic realities" required the expansion of the coverage, the senators asserted.
The argument on the other side, the one that Rehnquist will be trying to sell to his companions on the court, is that the freedom of state governments to carry out their internal operations free of federal interference is implicit under the Constitution. In considering the structure of federalism, it is wrong to view the states primarily as commercial enterprises, the affected parties argued in their briefs. "No power takeover of this magnitude operating directly on state and local governments" has ever before been attempted by Congress, they contended. Local ballot box control over state and local government expenditures would be lost, it was argued.
The most mysterious of all forms of Washington politics is what happens in the privacy of the conference room when the nine justices of the Supreme Court —- politicians who enjoy lifetime security and will never have to face the electorate — arrive at decisions that touch the lives of every American. Postponement of the decision in the states' rights case until the fall term probably meant a tentative vote of 5 to 4 with the ailing Justice William O. Douglas on the prevailing side. He was one of two dissenters from the Wirtz decision in 1968.
October 1975 / Illinois Issues / 319