LOCATION: United States District Court of Maryland
DOCKET NO.: 742
DECIDED BY: Warren Court (1967-1969)
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.
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?
Media for Maryland v. Wirtz
Audio Transcription for Oral Argument - April 23, 1968 in Maryland v. Wirtz
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.
Mr. Wilner, you may proceed with your argument.
Alan M. Wilner:
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.