Maryland v. Wirtz

PETITIONER:Maryland
RESPONDENT:Wirtz
LOCATION:United States District Court of Maryland

DOCKET NO.: 742
DECIDED BY: Warren Court (1967-1969)
LOWER COURT:

CITATION: 392 US 183 (1968)
ARGUED: Apr 23, 1968
DECIDED: Jun 10, 1968

Facts of the case

The Fair Labor Standards Act of 1938 (Act) requires every employer to pay each of his employees engaged in commerce or in the production of goods for commerce a minimum hourly wage and a higher rate for exceeding a maximum number of hours per week. The Act excluded the federal government or any state government or political subdivision from the definition of “employer.” In 1961, the Act was amended to include employees of any enterprise engaged in commerce or production of commerce, such as the operation of a hospital or any place that cares for the sick, a school, or an institution of higher education. The Act also removed the exemption for the state governments and their political subdivisions.

The state of Maryland and twenty-seven other states sued W. Willard Wirtz, the Secretary of Labor, to prevent the enforcement of the Act as it applied to schools and hospitals operated by states or their subdivisions. The states argued this expansion of the Act was unconstitutional because it violated the Commerce Clause and conflicted with the Eleventh Amendment’s protection of states’ sovereign immunity. A three-judge district court held that the extension of the Act’s coverage to commercial enterprise and state institutions did not exceed Congress’ powers under the Commerce Clause because it did not transgress the sovereignty of the states. However, the court declined to consider the Eleventh Amendment issue. Maryland appealed directly to the Supreme Court.

Question

Does the expansion of the Fair Labor Standards Act to include schools and hospitals operated by states or their subdivisions violate the Commerce Clause and the Eleventh Amendment?

Earl Warren:

Number 742, Maryland et al., appellants versus W. Willard Wirtz, Secretary of Labor.

Well, we’re so close to adjournment hour Mr. Wilner.

I think we’ll proceed right after lunch with your argument.

Alan M. Wilner:

Thank you sir.

Earl Warren:

Mr. Wilner, you may proceed with your argument.

Alan M. Wilner:

Thank you.

Mr. Chief Justice and may it please the Court.

This appeal asks whether the 1966 Amendments to the Fair Labor Standards Act which I shall refer to hereafter as Public Law 89601 are constitutional.

Specifically, it asks whether or not Congress can extend the provisions of the Fair Labor Standards Act to state and local school and hospital employees.

Now leaving aside for the moment the question of the Eleventh Amendment and the statutory question of whether the states or the ultimate consumers of the goods which they purchase in Commerce, we view this case as involving two essential issues.

We do not of course mean to abandon either the Eleventh Amendment or the statutory construction argument, but we would prefer to rest upon our brief as to those arguments.

The first issue is whether the activity being regulated has a sufficiently substantial effect on interstate commerce to be constitutionally regulable by Congress.

Now, this does not involve any consideration of whether the Commerce Clause is plenary or exclusive or just how powerful it is.

It does not involve the Tenth Amendment.

The only consideration here is whether the activity is or affects commerce in such a way as to make it regulable per se.

The second issue is if the Court in examining the activities under consideration, determines that they are or substantially affect commerce, it must then determine the nature and extent of the commerce power.

It is at this point that the question of whether our federal system itself is an implied limitation on the commerce power comes into play.

Now there are as the Court may know, 28 states who are appellants here, obviously more than one point of view has been expressed.

Professor Wright my co-counsel in his brief has addressed himself primarily to the first issue and he will argue that today.

Accordingly, I shall address myself to the second issue that is whether assuming that the activities affect commerce or our commerce the fact that they are carried on by states under the circumstances present here precludes Congress from regulating them in a way that it is sought to do.

Now we assert initially as our basis, as this Court itself said in the case of Texas versus White that the preservation of the states and the maintenance of their governments is as much within the design and care of the Constitution as the preservation of the union and the maintenance of the national government.

We start with that as our premise.

Less it’d be said that this is a passé, no longer good law, I would point out to the Court that this very language and this very context was cited with approval by Mr. Justice Frankfurter only eight years ago in the concurring opinion in United States versus Florida, reported at 363 U.S. 121 his particular language at 132.

The Secretary of Labor asserts that this is no consideration in ascertaining the scope of the commerce power and for that, he relies on language of this Court in the cases of United States versus California, 297 U.S., Case versus Bowles, reported at 327 U.S. and Board of Trustees versus United States reported at 289 U.S.

Now, it is our position that the actual decisions in these cases are not controlling here that the degree of federal intrusion upon the states is entirely different and so are its effects and we urge that the Court reconsider the dicta and we submit and will attempt to demonstrate that that’s all that it was that the Court reconsider the dicta in those cases in the light of the facts involved here and because this is central to our argument, I would like to develop this in some depth now.

As we point out in our brief, from almost the very beginning, there had been an implied limitation upon the national taxing power where state governmental activities were concerned and until the case of United States versus California, there had been no occasion to conclude that the commerce power was not subject to the same limitation.

At least, I might point out that in the California case where the distinction, so far as I’m able to determine was for the first time made, the Court cited no previous authority for making the distinction between the taxing and commerce power and I refer to the Court to 297 U.S. at page 185 where this distinction was first made.

In California of course, the question was whether the state owned belt railway was subject to the Safety Appliance Act.

California argued that the railroad was owned and operated as a sovereign function of the state, relying on the doctrine of immunity which had been evolved from the tax cases.

Now the Court never stopped to analyze even, whether even under the taxing doctrine, that is with the limitations imposed upon the taxing power, the railroad would be immune.

Alan M. Wilner:

But instead asserted, I submit quite unnecessarily, that the limitations applicable to the taxing power were not applicable to the commerce power and on that basis, the railroad could be regulated.

Now, I say that the distinction raised in that case was unnecessary because the facts will demonstrate that the railroad was not only regulable under the commerce power, but also taxable under the taxing power.

In the later case, in the State of California versus Anglim decided some seven years after the California case in this Court, the Ninth Circuit Court of Appeals held that the same belt railroad was not immune from the federal carrier’s tax of 1937.

I might mention that perhaps the Chief Justice may have some special recollection of that case having come up under his tenure as Attorney General of California.

The District Court in the Anglim case expressly held that the railroad was not an essentially and traditionally governmental function and for that reason was taxable.

This decision is reported at 37 Fed Supp at page 667.

The Circuit Court agreed entirely with the lower court’s approach reporting its decision at 129 F2nd 460.

The Circuit Court also went on the theory that the Taxing Act was a commerce regulation, but it expressly agreed with the District Court’s conclusion that as a factual matter, it was — the railroad was also taxable under the taxing power.

This Court denied certiorari at 317 U.S. 669 and in fact I think had implicitly accepted the Circuit and District Court approaches in the earlier case of California versus Latimer at 305 U.S. 255 where it sustained a different aspect of the carrier’s tax of 1937 against the very same belt railroad.

Thus, I submit to the Court that the distinction raised in the first California case with respect to the very activity which was there under consideration amounted to unnecessary dicta.

The same result would have been reached whether the taxing power or the commerce power was involved.

The railroad was not an essentially — an essential governmental function and that is why it could be regulated and taxed.

Now the idea that the taxing power is somehow less potent or somehow more limited than the commerce power it was not supported by precedent and in fact was rejected later by this Court.

As a general proposition, the taxing power has been described many times by this Court in the same broad way as it has described the commerce power.

In Tanner versus Little for example, an early case reported the 240 U.S. 369, the Court said that the power of taxation is as extensive as the range of subjects over which the government extends.

It is absolute and unlimited in the absence of constitutional limitations and restraints and carries with it the power to embarrass and destroy.

Not only has a taxing power been described in this very broad way on its own but it has also been equated with the other plenary enumerated powers.

In the case of Ashton versus Cameron County for example, reported at 298 U.S. 513, which I might add was decided after the California case, the Court equated the tax and the bankruptcy powers stating “both powers are granted by the same section of the Constitution and we can find no reason for saying that one is implied limited by the necessity of preserving independence of the states while the other is not.”

Even more specifically to the point, “the Court in the same case stated at page 532 that for a very long time, this Court has steadfastly adhered to the doctrine that the taxing power of Congress does not extend to the states where there are political subdivisions.

The same basic reasoning which leads to that conclusion we think, requires like limitation upon the power which springs from the Bankruptcy Clause.”

Later, in the case of New York versus United States, the famous tax case with the mineral waters Justice Frankfurter referring to the California case stated, “that surely the power of Congress to lay taxes has impliedly no lesser reach in the power of Congress to regulate commerce.”

Now, it serves no real purpose I think to bounce cases back off against one another.

What we must do now is look to the basic underlying legal concepts which are involved.

Now in California, the Court assumed that the reason for the limitation on the taxing power was to enable each government to tax freely.

This is what it said.

In the earlier case of Metcalf versus Mitchell however, the Court stated the rationale in this words, “but neither government may destroy the other nor curtail in any substantial manner the exercise of its powers.”

Now, this I submit is a far broader basis for the limitation than that which was expressed in the California case and I think it strikes more to the heart of the matter.

It is also the approach which was adopted by all eight justices in the case of New York versus United States.

Justice Frankfurter stated in the New York case that “the fact that ours is a federal constitutional system as expressly recognized in the Tenth Amendment carries with it implications regarding the taxing power as in other aspects of government,” citing his authority, Hopkins Federal versus Cleary, which of course involved a limitation on the commerce and banking powers.

Now, as a result of the Anglim cases, the California belt railroad tax cases as a result of Ashton versus Cameron and of New York versus United States and as a result of the other cases which we cite in our brief and which I don’t think it’s important to go into at this stage, it would appear that the distinction which was raised in the first California case was inappropriate and no longer recognized, but then it was repeated in the case of Case versus Bowles reported at 327 U.S. 92.

Alan M. Wilner:

Now, in Case versus Bowles, the Court rejected the distinction between essential and nonessential state functions with respect to the war power because it appeared to be unworkable.

This is what the Court said, citing the New York tax case in which the Court was unable to arrive at any agreement as to where the balance would be struck.

Based upon the New York case, the court just said, — simply said, it seemed to me that “we can’t work out any kind of balance therefore there isn’t any.”

Now, in that case, the question was whether the power of the State of Washington to sell timber to the highest bider was subordinate to the OPA Ceiling Price Regulations which had been issued pursuant to the war power.

In that context, the essential and nonessential distinction which had been raised as a test by some of the justices in the New York tax case which had been accepted before in tax cases may well had been unworkable and maybe that distinction is unworkable here.

But even that would not mean that no limitation is to be implied because I submit that theory itself would be unworkable.

To demonstrate this, I ask the Court to look at what Public Law 89601 actually does.

Now in the middle of a fiscal year that is after state budgets had already been enacted, after the next necessary taxes had been levy, along comes Congress and raises the pay of state employees.

Now we stipulated below and the record will indicate that the cost of this to the state just the monetary cost alone would be enormous, perhaps $100 million to $200 million annually, whether it’s 200 or 100 we submit as terribly significant, but it would be somewhere in that neighborhood for the first year of operation.

Of course —

Byron R. White:

You mean this — you mean this is on the assumption that the states are not paying the minimum or not paying overtime — this is what the actual cost of the —

Alan M. Wilner:

This is — let me clear this up now Mr. Justice White in contrast to the impression sought to be conveyed of the amicus briefs of the unions.

The problem here is not with the minimum wage.

The instances of sub-minimal wages among the state employees is rather limited and this —

Byron R. White:

This is just an overtime?

Alan M. Wilner:

This is primarily overtime.

What this Act does essentially without getting into the statutory problems of it, is to eliminate the device of compensatory time which all levels of government have used for many years.

That is if an employee works, if the wage, if the hourly thing is 40 hours and an employee works 44 hours in one week, he would be given four hours off at some other time and he could accumulate these extra hours so he could take a whole day off and this worked well in both the federal and the state systems.

The effect of this Act is that unless the compensatory time can be given within the same pay period, the state can no longer use it.

It must pay a premium overtime and it is this of course which applies not only to people making a dollar an hour but people to making $10.00 an hour as well and it’s this which affects the primary — the major cost burden because we stipulated below and the record will show that in many instances, it’s just impossible for state governments to compensate their people within the same pay period.

I think the very events of the past two weeks with these disturbances in the city will demonstrate with all of the overtime that had to be paid under this Act if it were applicable to those people and the constitutional question would be that it could be —

Abe Fortas:

Was an amendment to take care of that submitted to the Congress, considered by the Congress?

Alan M. Wilner:

To take care of what sir?

Abe Fortas:

The problem of the overtime provisions is applicable to this situation?

Alan M. Wilner:

No.

This is what — it is so particularly distressing about the whole affair.

This Act was passed without any consideration being given to it.

The public school people were put under without any debate on the house floor.

It was passed in conference committee.

Well, let me backtrack.

Alan M. Wilner:

The House Labor Committee which originally had this excluded public school people.

On the floor of the house without any debate somebody proposed an amendment to include some 900,000 public school people and it was passed that way.

The Senate Labor Committee after the House action excluded to public school people saying that no consideration has been given to the burden of this on the states.

Yet and the senate passed it that way and in conference committee, the house version was the one which resulted without any conference committee report indicating why.

To my knowledge, no state agency or affected agency was ever notified of the Bill or asked to appear to explain.

There is no indication in the legislative history that any consideration was given either to the constitutional aspects of it or to the economic burden upon the states.

Abe Fortas:

So you’re not arguing that the burden per se —

Alan M. Wilner:

Yes.

Abe Fortas:

— affects constitutional question, are you?

Alan M. Wilner:

No, I’m not.

I’m saying that it’s an important part of it in the whole flavoring of this, but it’s – I am not resting on the fact that the additional cost alone is sufficient.

Byron R. White:

Was the matter of information — it didn’t — the law does not cover all school employees for example?

Alan M. Wilner:

Yes sir.

Byron R. White:

Or hospital employee?

Alan M. Wilner:

No sir.

It only —

Byron R. White:

It excludes teachers, doctors and supposedly what?

Alan M. Wilner:

It excluded professional and administrative people.

It’s in its minimum wage of this I think perhaps the overtime too.

It’s directed at the lower paid people but as I say with respect to state employment there had been no evidence of any more than minimum —

Byron R. White:

And I suppose your argument is if the government can reach these, they can reach all the others that they’ve excluded?

Alan M. Wilner:

Yes sir.

Constitutionally, we submit that if the only task is whether these schools and hospitals buy goods in commerce, we stipulated that the governor’s office —

Byron R. White:

The government —

Alan M. Wilner:

The governor’s office by things in commerce too.

They can tell the governor how much he’s got to make and how much the legislators have to be paid and how long they have to sit.

I mean to test — the government claims this is conjuring up horribles, but we submit that this is isn’t conjuring up horribles at all.

This is the constitutional power we’re talking about.

In any event, the Act takes effect in the middle of a fiscal year after all of these budgets are set.

Now, we agree that there are only two ways of complying with this Act.

Alan M. Wilner:

Either we cut back programs in the middle of the year and thereby divert funds which were specifically appropriated by legislatures for specific purposes to other purposes or we call a special session of the legislature to levy new taxes to increase appropriations in order to meet the act or in some cases I might add assemble a state constitutional convention in order to increase taxable limits which were set by state constitutions.

Now this goes as I submit to the Court way beyond some incidental regulation of schools and hospitals.

This requires bypassing of the most basic and fundamental attribute of state government and that is the power to determine the scope of the state government itself.

The power of state government to decide how much taxes to levy, how to distribute the revenue among various state programs and no where in his brief does the Secretary of Labor comment on this.

I think he casted off under some of these cases as unimportant, but we submit it’s not unimportant.

Abe Fortas:

Well, is your complaint be the same if the Congress had merely said that they have to pay state hospital employees a dollar an hour?

Would you still be here?

Would your constitutional question be the same?

Alan M. Wilner:

I think that we would still be here because there is a very serious question as to whether this is even commerce in the sense of the Constitution.

I think —

Abe Fortas:

How about the second point — suppose that it is commerce, would you be here arguing your second point that is to say that the regulation would be an unconstitutional interference with state functions?

Alan M. Wilner:

I think that it would, but I must confess Mr. Justice Fortas that it maybe less so, but I think it still presents a very serious constitutional question.

Abe Fortas:

This is really as far as I’m concerned at the moment of the essence that to say whether you concede in effect that the federal government has power assuming the commerce point now so you could concede that the federal government has power or arguing here it exercise that power in a way so destructive as to constitute an infringement of state’s rights under the Constitution or whether on the other hand you’re arguing that the federal government does not have power to fix minimum wages etcetera for employees of state hospitals etcetera?

Alan M. Wilner:

My argument is this that you have to look at what the act in question does.

Now, I think in doing that, it’s hard to make these fine distinctions; hospital is okay, schools maybe not.

I think you’ve got to look at the Act itself and what it does and if it so substantially interferes with state government then it’s bad.

If it doesn’t then it’s alright.

We don’t dispute that Congress has the power to regulate commerce or that certain state functions are so regulable.

We don’t ask this Court to reverse the California case.

If we were running a state railroad or selling mineral waters or something like that, there’d no question that they could regulate this kind of activity.

In fact, it’s so done.

The second California case applied the Railway Labor Act to the belt railway and we have no qualms with that.

I think it’s more of a balancing approach and I would like to expand on that.

Abe Fortas:

I would like you to do — are you saying that the hospital workers engage in what used to be called a purely governmental function.

You’re not saying that, are you?

Alan M. Wilner:

No sir.

I’m not —

Abe Fortas:

What you’re saying is — are you then saying that the impact of these particular regulations on otherwise regulable state function is so severe as to make the federal activity an unconstitutional invasion of the state — state rights.

Alan M. Wilner:

Well, I would accept that, but I would like to paraphrase it if I may.

Abe Fortas:

I wish you would.

Alan M. Wilner:

I think that — what we’re talking about here is not whether the Congress can regulate state hospitals or state schools, but simply whether the regulation doesn’t go beyond that and more substantially affect state government in itself —

Abe Fortas:

But why?

I’m trying to get why, why?

Alan M. Wilner:

Well, because in this instance with respect to this particular act, it does a way entirely with the concept of state legislatures determining what taxes to levy, where to appropriate the money, what the scope — is going to be.

Abe Fortas:

Because the impact is so heavy?

Alan M. Wilner:

Not just because of the financial impact, but simply, it doesn’t matter whether it increase the total cost, $100 million or $10,000.

The point is that this is where you disrupt the entire budgetary system by making the states to pay their own employees more than they have appropriated money to do.

Abe Fortas:

But if you applied the wage now regulations people engaged in the bottling of water, I think that’s bottling of spring water state enterprise.

Alan M. Wilner:

That was taxed.

That wasn’t —

Abe Fortas:

Well, whether it’s tax or not.

Suppose you applied the wage an hour regulations to that, it would have the same effect in theory — in principle although quantitatively different, The point I am trying to get at is whether you’re objecting here because of the quantitative impact.

Alan M. Wilner:

Well, I think it’s the quantitative and qualitative Mr. Justice Fortas.

There are activities which had been so regulated of an income producing situation.

It’s the running of a railroad or the selling of mineral water doesn’t involve the same kind of situation where you’ve got to get your money solely from the state legislature.

If your employees have to be paid more then you hike the price of your freight tariff or you raises the price of your mineral waters to do it.

This is — the states aren’t quite put in quite the same position.

I think there is a difference between these activities.

Now, I will submit that there is no rationale analogy between this type of control and regulation that we’re involved in here and regulations concerning the growing of wheat or the operation of railroad or dock facilities or even a sewage system.

This strikes I think more at the very heart of the state government.

Now, I think that the court below agreed that this was a case of first impression where the invasion of federal power is the greatest and I think that this Court must review those cases, the dicta which are relied on and determine where this line is to be drawn.

I think in judging the different approaches, it seems rather irrelevant to consider whether one power is exclusive and another concurrent.

I think these are clichés that don’t really describe the total quantum of the power.

What we must look to is why is there a limitation at all.

Now in the tax cases it’s because it was early recognize that if the federal government could tax the sovereign governmental functions or the activities of the state, it could destroy the state as in effect of political entity.

Now we are submitting to the Court how is this commerce power any different when it is used this way when they tell the states how much taxes to levy, how to appropriate tax derived revenues.

We submit that there’s no logical distinction between these two powers.

The rationale for limiting the scope of one is the rationale for limiting the scope of the other.

Now, if this approach is adopted, if the tax limitations are implied on the commerce power, we don’t consider that it would be terribly unworkable at all.

It would only mean that this Court will act to — view acts of Congress in the light of whether they seriously intrude upon basic functions of state government and you don’t need clichés like essential or governmental or sovereign to do this.

Alan M. Wilner:

You don’t need a mathematical formula.

So many of the justices have said in the past, it’s a delicate balancing process.

It’s not an easy one, but we submit it’s a necessary one.

What you’ve got to do is to examine this Act, look at what it does and determine whether it’s so interferes with states as states that exceeds the national power.

This will have to be done I submit on a case by case basis looking at each act individually.

Out of this perhaps will involve some guidelines but this need not be made explicit now.

All that is required now is to recognize that federalism is an implied limitation on federal power and to decide on whatever test is adopted if you accept the limitation that this act, Public Law 89601 exceeds that limitation and is therefore void.

[Inaudible]

Alan M. Wilner:

About $4.5 million — well, it’s about $2.5 million directly the first year of operation all in overtime.

In addition to that under Maryland law, all employees must be treated the same.

We can’t discriminate from those who are under the Federal Act and those who are not.

So the additional cost to the state of treating the non-covered employees would be almost another $2 million.

I think the stipulated fact which shows about $4 million to $4.5 million the first year and of course as the minimum wage goes up each year, this will become more and more expensive both in the minimum wage terms as well as the overtime.

Earl Warren:

Professor Wright.

Charles Alan Wright:

Mr. Chief Justice and may it please the Court.

A year ago at a time when I had no expectation in being professionally connected with this case, I gave the facts of the final examination question in constitutional law that seem to me that raises very testing issues under the Commerce Clause.

William O. Douglas:

How did you device, back and forth?[Laughter]

Charles Alan Wright:

I think Mr. Justice Douglas that I must brainwashed my students to find the statute unconstitutional.

I intend to address myself primarily to the Commerce Clause issues here.

They are as Mr. Wilner said issues of first impression.

There is no case that I can point to nor I think that the Solicitor General can point to that tells us unerringly the answer here.

But there are in my judgment principles that furnish guides to right decision.

I start out with the fact that the Constitution gives Congress the power to regulate commerce among the several states and I take the words among the several states are words of limitation.

They were not used by the framers and put them at the document longer and there is a difference between a plenary power to regulate all commerce and the power to regulate commerce among the several states.

I suggest first that where in fact we have commerce among the several states and this is undoubtedly a conception that has expanded as our transportation network and our economy expanded, but here, there is of course no doubt whatever about Congress’ power to act.

Second, where we have an activity that is local, it may still have such an impact on commerce among the several states that it must be held to be within the power of Congress.

This is a lesson that Texas learned in 1914.

Third, that when the relation between local activity and commerce among the several states is not sufficiently close then the power of Congress has come to an end as Mr. Chief Justice Marshall said in what remains the authoritative exposition of the Congress Clause, it will be inconvenient and absolutely unnecessary for the Congress to have been given a complete power over all commercial activity and he drew the line in saying that Congress can regulate that commerce that concerns more states than one.

The problem then becomes one of measuring the relation between a local activity at interstate commerce and decided when that relationship is close enough so that Congress may properly invoke its powers.

The Court has used various terms in recent history and we rely only on the cases from 1937 on, close and substantial, close and intimate, substantial and harmful, all of these terms suggest that there must be a propinquity between the activity and substantiality.

Abe Fortas:

Are you arguing — Professor Wright, are you arguing that the wage and hour act cannot apply to husbands?

Are you arguing that generally —

Charles Alan Wright:

Yes sir.

Abe Fortas:

— because of the limitations of the Commerce Clause?

Charles Alan Wright:

That is precisely —

Abe Fortas:

That is your position?

Charles Alan Wright:

Yes.

Abe Fortas:

How about retail stores?

Charles Alan Wright:

Of course it is going to apply the retail stores.

Abe Fortas:

Well, how about laboratories, medical laboratories?

Charles Alan Wright:

Well, it seem to me that the test would depend on whether or not we have an entity that is charging people for what it is doing and that therefore the wages and hours that it pays its employees will have an effect on the price that the customer ultimately pays.

Abe Fortas:

Is that the — I thought you’re arguing generally that hospitals are outside the reach of the Commerce Clause whether the people pay for it or not?

Charles Alan Wright:

I’m arguing that state hospitals are outside the Commerce Clause.

Abe Fortas:

Only state hospitals and that’s what I was asking.

Charles Alan Wright:

I’m sorry, I misunderstood the question.

Abe Fortas:

Now, will you tell me what the distinction is that you make with respect to the Commerce Clause between state hospitals and private hospitals?

Charles Alan Wright:

The fact that in one — the patient is paying and then the other as a practical matter, he is not.

Abe Fortas:

What do you mean as a practical matter?

Most state hospital’s patient does pay anyway, doesn’t he?

Charles Alan Wright:

The stipulation and the facts between Texas and the United States show that in the year involved of 2900 patients in our tuberculosis hospitals, only nine paid any fee, that in Baylor County Hospital, 94% of patients paid nothing whatever that in our state schools between 5% and 10% of the parents may pay the nominal charge that we assert.

Abe Fortas:

And so you say that because — well, let’s assume that nobody pays, you say that has an effect on commerce clause?

Is there any —

Charles Alan Wright:

I would not want to say Mr. Justice —

Abe Fortas:

— any case on that?

Any authority on that?

Charles Alan Wright:

No.

I would not want to say that that is a complete answer.

There might be an argument to be made for the private hospital, but I don’t think it’s an argument that I have to make.

When we turn to look what is the relation here between this concededly local activity and commerce among the several states, we find that various stages in the history of the case, different explanations had been suggested.

There is nothing in the legislative history itself except for the committee report.

Charles Alan Wright:

There was no testimony.

Nobody was before the Congress saying, “Please make this state institution subject to the Fail Labor Standards Act.”

So that is not a helpful source.

The committee report says that the state institutions are in competition with private proprietary institutions and that it means unfair competition and the facts I suggest simply are against that.

Indeed the record, we have testimony from the precedents of various educational institutions in Texas in private institutions saying that they are not in competition with the University of Texas.

They wouldn’t have any place to put our students if they could attract them away.

In the District Court, Judge Winter and the opinion that went in the direction that the government desired, found that we spend billions of dollars every year in interstate commerce.

And so he said, inevitably, these activities have a substantial impact in interstate commerce.

Of course we spend the money and of course our spending has a substantial impact and I do not doubt at all that Congress could regulate the way in which state institutions purchase goods in interstate commerce and indeed in some aspects it does, Food and Drugs Act and things like that I would assume are as applicable to the states as to any private purchaser of goods, but I do not think that because one aspect of a state institution may affect commerce that that is a waiver entitling Congress to regulate that state institution in everyone of its activities.

It seems to me that if Congress is to regulate a particular activity or a particular function of the state institution, it must be because that activity or that function have the needed relation to commerce among the several states.

In the brief for the United States here, the United States asserts that there may be labor disputes as indeed there may that substandard working conditions or cause of labor disputes and that if labor disputes go on long enough then it would diminish the purchases that the states make and in that respect interfere with interstate commerce.

With great respect, it seems to me that this is if I may borrow a phrase from the Solicitor General’s brief to stray from reality.

If there is any instance in which a state has enforce to put an end to its public schools or its hospitals or its institutions of higher learning because its janitors and its scrub women have gone on strike over substandard working conditions, we are not advised about it by the United States and there is no reason to believe that Congress was so advised.

In the Parden case Mr. Justice Brennan —

Byron R. White:

If you would be making the same argument that this law covered teachers, would you?

Charles Alan Wright:

We’re going to keep the public schools running Mr. Justice White regardless of strikes.

Byron R. White:

Some of the places haven’t manages to —

Charles Alan Wright:

For temporary periods, they haven’t manage to —

Byron R. White:

Is there a law against — it works out about public employees in Texas?

Charles Alan Wright:

I do not know.

Byron R. White:

Is that relevant?

Charles Alan Wright:

I would not think so — I would not think it reaches the constitutional question.

I would think that if the labor relations of state employees were concerned that Congress arguably could bring them under the National Labor Relations Act, at present time they are exempted from that act, but if this is a congressional concern to prevent labor unrest then the NLRA is certainly a far more direct means of getting at the problem than relying on the FLSA.

I would like to invoke in this connection a phrase that Mr. Justice Brennan used in the Parden case when he referred to the common sense of this nation’s federalism and it seems to me that it has been a common sensical matter as necessarily a question is complicated as federalism and intergovernmental relations passed today and that common sense teaches that we aren’t going to let the public schools or the universities or the state hospitals be closed.

We’re going to keep them in operation.

They’re going to continue to spend billions of dollars every year in interstate commerce.

And I think to make this a tool for allowing regulation in this respect of our state institutions would be to substitute remote and speculative impact on interstate commerce for the close of substantial impact that the Court has always said is required.

With regard to —

Byron R. White:

[Inaudible] to demonstrate some congressional power over the wages of a manufacturing company for example that engages in interstate commerce?

Charles Alan Wright:

I suggest sir that the impact there is an extremely close one, that the possibility of destructive competition is present unless the Congress can regulate the wages for manufacturing institutions.

Charles Alan Wright:

States in which low wages are paid and to be able to sell their goods at a competitive advantage in those states that have locally raised their standards.

Byron R. White:

You don’t think work stoppages are particularly relevant to the question?

Charles Alan Wright:

I would think that a work stoppage at the Jones & Laughlin plant of course has a tremendous impact on the state commerce as the Court held in 301 U.S., but I do not think that a work stoppage that the University of Texas law school is going to have any impact or whatever on interstate commerce.

If our janitors go out because they’re dissatisfied in a week, we can have new janitors or they will be back at work and we will — have bought as many desks and blackboards and books as we would have if there had been no work stoppage, but if it’s the Jones and Laughlin plant, commerce itself stop the moment the milk is cold.

As I have suggested in the brief that I have submitted on behalf of the State of Texas, I do not think that the question of commerce and the question of impact on the states, the question to which Mr. Wilner addressed himself, can profitably be viewed as if they were totally independent.

It seems to me that when you have a doubtful question of power under the Commerce Clause then it is right to ask yourself what is it that Congress is seeking to reach and the fact that the states do enjoy the special position in our federal system is something that maybe taken into the balance in deciding whether or not Congress is here gone beyond commerce among the several states.

I frankly submit to the Court that it seems to me that if this is not beyond the line then it is difficult to think of any commercial regulation that would be beyond the line that here of course, we can talk about work stoppages and the fact that perhaps these will have in some very unlikely contingency an affect on commerce, but I don’t know of any instance that would be different from that and I remind the Court of what was set for a unanimous court in 1944 in the Polish National Alliance case that scholastic reasoning may prove that no activity is isolated within the boundaries of a single state but that cannot justify absorption of legislative power by the United States over every activity.

With great respect, I submit to the Court that it is here being asked to accept scholastic reasoning and the reasoning that does lead to the conclusion that there is no longer any difference between interstate commerce and the general subject to commerce.

Abe Fortas:

If I understand you Professor Wright, if you have a hospital that is under the private management, that hospital would be in the reach of the Commerce Clause, but under state ownership, state operation, it is not.

The Commerce Clause stops on account of the nature of the ownership.

Am I wrong in your position?

Charles Alan Wright:

My position is not quite that.

If I —

Abe Fortas:

That’s what I’m trying to get at —

Charles Alan Wright:

If I will retain my —

Abe Fortas:

— if that’s what you said?

Charles Alan Wright:

I were retained by a private hospital, I think perhaps I could make an argument but I could not make the argument that I can make when I appear here on behalf of the State of Texas.

Abe Fortas:

That doesn’t help me very much.

Let’s take exactly this — I’m trying to find out what your position is, what the basis of your position is.

In this case, are you arguing that hospitals and this goes back to what I asked you before, are you arguing that hospitals are outside of the reach of the commerce clause?

Or are you arguing that an identical hospital which under the — which under the private ownership and management would be within the reach of the Commerce Clause and by virtue of the state ownership, management and operation that comes outside — is outside of the reach of the Commerce Clause?

Is that your position?

Charles Alan Wright:

I think my position maybe precisely stated in this fashion that I am arguing that a public hospital in which very few patients are charged is beyond the reach of the commerce power.

The questions of commerce power are questions of degree and a different result might be reached –

Abe Fortas:

Let’s stop right there if you will and take that exact hospital.

Under the private management and ownership where everybody is charged $50.00 a day for a room, would it then be within the commerce clause?

We’re talking about a hospital and I don’t have to quarrel about what a hospital does.

Let’s assume that we are in agreement in what a hospital does and how it operates.

I ask you that precise question because as far as I am concerned, the answer to that is essential if I am to understand your position in this case?

Charles Alan Wright:

Well, I — if I am to take a position for purposes of this case only will be that the private hospital that charges $50.00 a day would be subject to regulation.

And because [Inaudible]

Charles Alan Wright:

And because no fee being paid.

These are services that are being provided to most of the patient’s free of charge.

Byron R. White:

Now what does that in fact if the patient pays — what does that have to do with whether its interstate commerce or not?

You are saying if the patient pays, the private hospital becomes subject to the commerce power?

Charles Alan Wright:

It has this relation that if we suppose two private hospitals, one of them paying the minimum wage to its employees and one not, but then the hospital that is paying the lower wage would be able to charge lower prices and to that extent it will attract the people to come to it rather to go to some place else.

Here we have competition —

Byron R. White:

Does that covers now by getting patients — patients to come in from outside the state or we have more hospitals?

Charles Alan Wright:

Pardon?

Byron R. White:

In order to enjoy lower hospital rates —

Charles Alan Wright:

Yes or to enjoy a lower university rates.

I can well imagine that a private university might attract students if they’re able to charge less than some other university of similar distinction and these would be people moving in interstate commerce.

As I indicated in response to Mr. Justice Fortas, it is with reluctance that I take that position, but I think for purposes of this case, he asked me to take a position on that, that has to be my position.

I think that helps to answer to the question that Mr. Justice Fortas put to Mr. Wilner.

It may not been Mr. Justice Fortas, if you’ll excuse me, and that is why it isn’t to the same impact if you start charging minimum wages when you turn out mineral waters as when you operate a hospital and the answer is that once again the fact of competition.

The fact that the state owned mineral water plant can do the same thing that a privately owned mineral water plant can do.

It can charge more for its mineral water.

We can’t charge more to attend to public schools in Texas because we don’t charge anybody and that is the typical situation throughout the states.

For those reasons, we believe that the judgment of the three-judge court was in error and should be reversed.

Earl Warren:

Mr. Solicitor General.

Erwin N. Griswold:

May it please the Court.

This case I think illustrates the growth and development of constitutional law and practice in this country.

Of course in the sense, the problem of intergovernmental immunities goes back to the early days, Mcculloch and Maryland, but I suppose that two years ago — excuse me, two generations ago, two generations go, no one would have been here standing in my place seeking to support a statute such as this, among other things there was no such statute.

We should not forget however that it was about two generations ago that South Carolina against United States was decided which held that the United States could impose a tax on an activity conducted by the State of South Carolina.

One generation ago, there were marked developments in this area, particularly in the tax field.

There was a whole series of cases which step by step moved along and eventually broke down in large measure, the rigidities of the doctrine of intergovernmental tax immunities — intergovernmental immunities in the tax field.

I think it’s not irrelevant to point out too that it was 48 years ago next month that a very parallel case was argued before the high court of Australia, the Engineers case which is reported in 28 Common Law of Law Reports at page 129 which involved the power of the Commonwealth to enact a statute subjecting state employees, in this case it’s railroad, to the compulsory arbitration law of the Commonwealth of Australia.

I was reading about this just the other evening and noted that counsel for the Commonwealth in that case was Robert Gordon Menzies and every state, but one joined in opposition to the statute there and counsel for the states included John G. Latham who later became Chief Justice of the High Court of Australia and Herbert Evatt who was later a justice of the High Court.

In this case, the syllogism, it seems to me it’s fairly clear.

I know the dangers of syllogisms and the risk that a legal problem may be over simplified by treating it in unduly logical terms, nevertheless it maybe of assistance to see how this case fits into the constitutional picture.

Erwin N. Griswold:

First, it seems to me that there is no doubt in the operation of schools and hospitals is an activity which affects commerce.

The stipulations in this case show that the schools and hospitals in the states here involved affect the commerce in a very substantial way.

The court below and its opinion and its quoted on page 9 of our brief, in reference to the stipulation which says that in the current fiscal year which was two or three years ago, an estimated 33 and three tenths billion dollars will be spent by state and local public educational institutions in the Unites States in the same fiscal year of 1965.

These authority spent $3.9 billion operating public hospitals.

If it were not the states which were conducting these activities, it seems to me that there could be no question about the power of Congress to make the Fair Labor Standards Act applicable to schools and hospitals.

We know that the Act is applicable to retail stores.

We have cases like the heart of Atlanta case involving the extension of the commerce power to a restaurant.

If these were privately conducted schools and hospitals, I think it could be hard to find counsel who would come here and contend that the act of Congress involved was not a regulation of activities which substantially affect commerce among the several states.

So we are dealing with the regulation of commerce.

I suggest that that’s really beyond the realm of dispute now and that is the first proposition of the syllogism.

Under the Constitution, the Congress has power to regulate commerce among the several states and this is a power granted without qualification in terms.

It applies to all commerce even that conducted by or for the state.

And thus since we are dealing with a matter which substantially affects commerce and since the power of Congress to regulate commerce extends to commerce conducted by a state, we come to our conclusion that Congress has power to regulate wages and hours of employees in schools and hospitals even though these are conducted by a state.

Are there any flaws in this process?

Are there subtleties or refinements which had been overlooked or submerged in the reasoning eye of outline?

I do not think so.

For many years in the area of intergovernmental immunities in the tax field, the Court labored to workout a distinction between activities which were governmental in nature and those which were proprietary in nature.

Some of the tax cases cited in the briefs here have been distinguished by my learned friends on that ground.

This distinction was undoubtedly a useful stage in the process, but it was found in due course that the distinction is one which did not prove to be useful in the long run.

On what basis is such a matter to be determined as far as such a case as this is concerned.

Historically, neither elementary schools nor hospitals were conducted by states.

They are not analytically a part of governmental activity like legislatures and courts.

In more recent times, the states have become extensively involved in elementary education and hospitals, but these activities are not exclusively conducted by states and any of the plaintiff states.

The Congress has long followed a policy of regulating wages and hours of work and activities which affect commerce and has been steadily extending its legislation to cover a very large part of the total area where interstate commerce is affected.

It is earnestly contended here that this regulation is not necessary and it is not valid because the operation of schools and hospitals to quote from one of the headings in the state’s brief, does not constitute commerce and does not affect commerce in a way which subjects them to congressional regulation.

The argument in support of this is put almost entirely in competitive terms.

It is suggested for example that private schools and hospitals will not have difficulty in competing if they are subjected to federal wage and hour regulation while state schools and hospitals are not because competition between these groups does not exist and to the extent it does exist, it is not on a price basis.

I’m not sure that even in the area of competition that it is as simple as that.

As a matter of fact in recent years, we have developed enormous systems of insurance with respect to medical cost.

This is true at least as far as the hospitals are concerned and not only Blue Cross on a national scale, but private insurance plans and payments are made in very large amounts to state and other public institutions for medical and hospital service and there may well be competition between the two, but I don’t think that’s important.

Erwin N. Griswold:

I don’t think that competition is the ground upon which this statute should particularly be rested even though that is the matter which was referred to in the committee report which related to hospitals.

Incidentally it is true as far as elementary and secondary education is concerned that this statute was passed in what might be called almost casual manner.

There were no hearings, but I don’t know that Congress is under any obligation to hold hearings.

There are no findings in the statute, but there are no constitutional requirement that there would be findings in the statute.

The speculation is that the provision with respect to elementary and secondary schools was put in by an opponent by the Bill who wanted to sink it by putting in so many things that people wouldn’t vote for it.

Apparently to his surprise, it was adopted and then accepted by the conference committee.

All of which I think is irrelevant because it is in the statute as passed by Congress and as we see it, it was plainly within the power of Congress.

But as I have said, though I think there is competition and I think it could be advanced in terms of competition, that isn’t the only basis upon which Congress can exercise its power to regulate commerce.

The Constitution doesn’t say that Congress shall have power to regulate competition in interstate commerce.

It says, Congress shall have power to regulate commerce among the federal state — among the several states.

And the Congress seeks to regulate wages and hours not merely to provide a better basis for truly fair competition, but also to minimize work stoppages from legitimate employee discontent and also to increase purchasing power which will directly affect the flow of goods in commerce.

There can be no doubt, I suggest that the succession of statutes which the Congress passed beginning in the 1930s, not only Fair Labor Standards Act but also on employment insurance and old age and survivors insurance has had an enormous impact on the development and continuity of commerce and of commerce among the several states in this country.

The strikes in schools and even in hospitals are not unknown even in this area.

We’ve cited on page 12 of our brief an important study of strikes by public employees which deals among other things with the strikes by public employees in schools and hospitals.

There is another aspect of the matter which is born in upon our consciousness over the past few weeks.

A very large proportion of the employees in public schools and hospitals who receive less than the minimum wage or work more than maximum hours are in the poverty group and the Congress might well feel that removing a part of the economic discrimination against them which they’ve long contended against could have an important bearing on maintaining the stability of the free flow of commerce in the institutions in which these people worked.

What is the web of cases which has been spun over the past 40 years or more and which I suggest now enmeshes the plaintiffs here.

Perhaps, the earliest case that need to be mentioned is Sanitary District of Chicago against the United States, decided in 1925.

This involved a clearly governmental activity, namely the disposition of sewage in the City of Chicago which had a direct relation to the health of Chicago and of other parts of the country.

This Court held that a statute enacted by Congress in regulating that activity under the Commerce Clause was valid and that speaking through Mr. Justice Holmes, the power and authority of the United States to remove obstructions to interstate foreign commerce was without question superior to that of the states to provide for the welfare or necessities of their inhabitants.

Then the next case came along, United States against California, involving the San Francisco belt harbor railroad and the question was whether the Federal Safety Appliance Act was applicable to such a railroad conducted by the state.

Now my friends here of course seek to distinguish the case on the ground that that was a proprietary activity, the distinction which was developed in the tax cases, but which was later pretty thoroughly disposed of, but in that case the Court was very specific.

It said “that it deemed it unimportant to say whether the state conducts its railroad in its sovereign or in its private capacity.”

In whatever capacity the Court said, “the state’s power must be insubordination to the power to regulate interstate commerce which has been granted specifically to the national government.”

In somewhat similar case that I’ll take up out of chronological order is California against Taylor which involved the application of the Railway Labor Act to the same railroad and the Court there said that the state by engaging in interstate commerce has subjected itself to the commerce power so that Congress can regulate its employment relationships, now that of course gets very close to this.

A case which I think is of special importance here and one for which I have certain nostalgic feeling since I wrote the brief for the government in it, is Board of Trustees of the University of Illinois against the United States, decided in 1933.

It was argued here by Judge Thacher as Solicitor General.

That involved the application of customs duties to scientific apparatus which was imported by the University of Illinois and I remember well in the consideration of the case the discussion of the relative position of the taxing power and the power to regulate foreign commerce and we deliberately based the brief in that case on the commerce power.

We made only casual or incidental reference to the taxing power.

I would point out too that that case involves education.

Erwin N. Griswold:

This was the University of Illinois, an educational institution and the items which were imported were scientific equipment for use in the education enterprise.

The Court in an opinion by Chief Justice Hughes, a very, well I want to say a curt but a short opinion, referred to the commerce power as an exclusive power and its exercise may not be limited, qualified or impeded to any extent by state action and he then went on to say the fact that the state in the performance of state functions may use imported articles does not mean that the importation is a function of the state government independent of federal power.

The control of importation does not rest with the state, but with the Congress.

There is thus no violation of the principle which the petitioner invokes which was the principle of intergovernmental immunities for there is no encroachment on the power of the state as none exists with respect to the subject over which the federal power has been exerted.

Byron R. White:

Well, it that’s the measure of the federal power then I don’t suppose you ever exceeded in setting minimum wages for state employees.

If you take the state government as an entity, I suppose a fortiori it affects commerce as much as the hospitals?

Erwin N. Griswold:

Someone may have to argue that someday before —

Byron R. White:

The principle that you are stating would certainly be — that were sustained would be a good thing —

Erwin N. Griswold:

If there is no qualification whatever, it would seem to go that far and if Congress should which currently I suppose is unlikely to pass a statute regulating minimum wages and overtime for employees of state legislatures or of the state courts, it would be possible it seems to me to defend it.

It would be a harder case for this Court to decide on what this case is.

Byron R. White:

Or set the prices for the tuitions for state schools?

Erwin N. Griswold:

Yes.

Byron R. White:

Prices.

Erwin N. Griswold:

We’ve gone virtually as far as that under the war power which is perhaps a somewhat different matter but —

Byron R. White:

But I want to ask you the last one whether they could license the state government?[Laughter]

Erwin N. Griswold:

I have no doubt that they license the state government for some activities.

For example the dispensing of narcotics in the state hospitals I suspect is done under federal licensure now and without any —

Byron R. White:

But the governors don’t have a federal certificate in their office?

Erwin N. Griswold:

No.

Governors don’t have a federal certificate in their office and I trust that we shall never have to consider that question.

I do think that the case of the Board of trustees of University of Illinois against United States comes very close to this case when you get done to it.

It’s easy to toss it off and say, oh it was a tax.

It wasn’t presented on the basis of the taxing power.

It wasn’t decided on the bases of the taxing power.

It was decided under the Commerce Clause.

It did involve education and it did sustain the federal power in sweeping terms.

Now the next one of these cases is the one involving price control, Case against Bowles also involves education.

It involved the sale of Timber from lands held by the State of Washington for the support of public schools in that state and the state sought to sell them at the — sell the timber at the best price it could get and they run into trouble with the Emergency Price Control Act and in the case which came to this Court, the power of Congress through that statute to regulate the prices at which state timber could be sold involving proceeds which would be used for school purposes, that statute was sustained.

And now finally, we have a very recent case, the significance of which I think might possibly be minimized because it is a per curiam decision and somehow or rather per curiam decisions get in the back of the back and are overlooked unless the facts aren’t stated and that unless they are specifically brought out, they sometimes do not have the effect that case have decided by opinion do have.

The case I’m referring to is 380 – is United States against Ohio in 385 U.S. at page 9.

Erwin N. Griswold:

It’s not in the back of the back.

Its way in the front but it’s only two lines long.

United States against Ohio involved wheat grown on a state prison farm.

It was grown by the State of Ohio without complying with the crop restriction provisions of a federal statute.

Pursuant to an opinion of the state attorney general that since it was a state and since under the Constitution of Ohio, the wheat could not be sold outside the state that it did not involve commerce and was not subject to federal regulation.

The United States sued to collect the penalty which was due from persons who operated areas growing wheat in excess of their allowance and the District Court granted judgment to the United States for some $27,000.00.

That was appealed to the United States Court of Appeals for the Sixth Circuit which took a position somewhat like that presented here by counsel for the appellants.

They said, well, this is such a little effect on Commerce that we can’t really suppose that it ought to be something that the Congress could regulate and they reversed the judgment of the District Court.

In the summer of 1966, the then Solicitor General filed a petition for certiorari with this Court to review that judgment of the Court of Appeals for the Sixth Circuit and in October of that year, that petition was granted and the judgment was reversed without argument here on the authority of the case of Wickard against Filburn which had extended the — which had sustained the extension of the commerce power to the growing of crops.

Now, that gets even closer to governmental activity it seems to me than schools and hospitals.

Prisons have long been a governmental activity and no one else can conduct prisons.

It doesn’t perhaps go as far as legislatures and courts Mr. Justice White.

I would suppose however if the legislature itself grew some wheat that this case would be applicable to it.

And I would suggest that it’s very hard to get away from the application of the University of Illinois and the State of Ohio in this case.

There is one more case mentioned in our brief, Oklahoma against Guy F. Atkinson Company where it was contended that the federal government have no power to build a dam because some of the lands which would be affected would be state lands and this was important not merely from the proprietary point of view but also from the governmental point of view because it would interfere with the state taxing power and among other things in some way would obliterate the boundary of the state, but the Court had no difficulty there in sustaining the power of Congress to authorize the building of the dam under its power to regulate commerce.

A number of other cases are discussed in our brief and even more in the brief for the appellant states.

They seem to me to show that the time has passed when the argument which counsel for the appellants are making here can be a successfully made.

We believe that this is a regulation of commerce whether it is one which should be made, was one for the judgment of Congress and Congress has made that judgment of the fact that states are affected at least in these operations is not sufficient to eliminate the power of Congress over commerce and accordingly we submit that the judgment below should be affirmed.

Earl Warren:

Professor Wright.

Charles Alan Wright:

Mr. Chief Justice and may it please the Court.

I have certainly failed to communicate what our position is if I have led the learned Solicitor General to suppose that it resembles the position the Sixth Circuit took in United States v. Ohio, a position that quite accurately describes as being, well, it’s just a little wheat there for it doesn’t have much effect in interstate commerce.

The position we take here fully accepts Wickard v. Filburn and it seem to me that United States v. Ohio was an a fortiori case from that.

The Court will recall that in Wickard, Justice Jackson examined at some length the economics of the wheat industry.

He found as I recall that about 20% of all wheat is consumed at the place where it grown.

This is the single most variable factor in the market and therefore the factor that had the most impact on the price of wheat moving in interstate commerce.

And although the amount of wheat consumed in the Ohio jail or in Filburn’s farm by itself was insignificant taken as a whole the problem of home consumed wheat was one of great importance if commerce would be effectively regulated.

That is far different from our position here.

We’re not saying that what our people do as something so trivial.

We’re saying simply that it is something that doesn’t affect interstate commerce.

In his —

Abe Fortas:

Well, then it must be your position Professor Wright that the wages paid to people per se will not affect interstate commerce and now let’s suppose you had a monopoly, pure monopoly to then compete with anybody, just assume that with me if you will, and it’s general activities are such to bring it within the interstate commerce category but that doesn’t compete with anybody.

The federal government regulates wages.

There’s a fact that there is no competitive factor there excluded from the scope of the commerce power.

Charles Alan Wright:

No sir.

I don’t have to think that competition is by any means the only factor that may permit the Congress to invoke the commerce power.

I think that this is one of the things one looks to and determining is their — the relation here.

Mr. Justice White’s questions dramatized for me.

The difficulty I had with the syllogism imposed by the Solicitor General.

I cannot say on the argument as he puts it how there is any stopping point.

I do not see with regard to his made true premise how there could be any limit on the concept of commerce among the several states that the hearings leading to the 1966 legislation.

The Secretary of Labor told the Congress for example that it was beyond its power to fix minimum wages for a truck driver if he drove with his truck only in intrastate commerce and yet I dare say that a truck or the gasoline it uses or things at that sort would be bought out of the state and the possibility of a work stoppage would be as real or as unreal in its impact on commerce as we have here.

With regard to the minor premise put by the Solicitor General, I suggest again that the Congress can bring the states within some regulations of commerce, but because states are states, they do not exist merely at the pleasure of a transient majority of the Congress and that their interferences with the function of a state in its capacity as a constituent partner in the federal union, the Congress cannot touch —

Byron R. White:

That is [Inaudible]

Charles Alan Wright:

Yes and in my judgment Mr. Justice White the two arguments fit together.

You can’t separate them.

There was a time when it was the practice in this Court to strike down acts of Congress because the majority of the Court thought that the act of Congress was a bad thing and I’m sure that my friend and I would make common cause in saying that that was an inappropriate approach to judicial function.

I submit that it would be equally wrong for this Court to uphold an act of Congress because it accomplishes something that we may think is good.

The question in either event is not whether we like or dislike what the Congress has done, it is whether the Congress is active in the powers that the Constitution of the United States pressed in it.

As a voter and a taxpayer in Texas, I would be happy to support a state minimum wage.

As a citizen of the United States, I do not think that the Congress of the United States have the power that is here claimed.

Thank you.