National League of Cities v. Usery – Oral Argument – April 16, 1975

Media for National League of Cities v. Usery

Audio Transcription for Opinion Announcement – June 24, 1976 in National League of Cities v. Usery
Audio Transcription for Oral Reargument – March 02, 1976 in National League of Cities v. Usery


Warren E. Burger:

We’ll hear arguments next in 74-878, National League of Cities against Dunlop, and 879, California against Dunlop.

Mr. Rhyne, you may proceed whenever you’re ready.

Charles S. Rhyne:

Mr. Chief Justice and may it please the Court.

The appellants here states and cities challenge the constitutionality of some 1974 amendments to the Fair Labor Standards Act, which covered the — all the remaining employees of states and cities under that act.

The way it was done was by declaring all states and all cities to be commercial enterprises and under that enterprise interpretation to apply all of the regulations of the act to the states and cities.

But first of all, I’d like to point out that this is not a minimum wage case.

It isn’t a case involving the low paid people.

It’s the application of this act to their relatively high paid people, the wiping out of state and local Government civil service laws, processes, procedures, the forced restructuring of the way that they will render far service for example, it is the — which results in enormous increases in cost.

These are the things that the states and the cities complain of and say to this Court that this act is really a very massive complex regulatory act which in affect reaches every employee, be he working in the executive, legislative, or judicial branches of state Government.

Now, there are some exemptions for elected officials and their confidential age and for professional people.

But, the interesting thing about the application of this act in the claim repeatedly that is to correct substandard labor conditions is that in the entire record made over three or four years in the Congress, the appellee’s predecessors in the Department of Labor were only able to find they claim.

95,000 people out of 11,400,000 who in 1973 they thought could be covered by this act, who where getting less than the minimum wage and we doubt frankly that figure because it shows here in the record that firefighters get $12,000.00 a year, the highly publicized New York garbage collectors and sweepers get $20,000.00 up to $24,500.00, and out in San Francisco, they get almost as much.

So we’re not talking about minimum wages, we’re not talking about substandard conditions.

What we are talking about is a basic restructuring of Government in the United States of America, big change in our federal system of Government whereby for the first time, in all history, the federal Government is asserting power over every state, over every city and every employee they have.

There can be no question about that because as appellee admits, you have to keep a record for even the exempt people.

So this is a massive takeover, it’s in the massive overlapping duplication, nullification of civil service, debt limit, tax limit, budget limit laws and it affects this vast change in power and we talked mostly about power.

Appellee talks about payroll cost and say they are nothing but we talk about power of Government and we say here that the federal Government is asserting jurisdiction for the first time over their most important element in every state and local budget for personnel cost.

Cities have 80% to 85% of their budget in personnel cost.

States, California has 76% and other states are similar.

So, we say that this act is a massive takeover of functions that had been performed on the local level since the founding of our nation.

I used one illustration of the wiping out of ballot box control.

In the record pages 4, 14 and following, there’s a copy of the New Jersey statute.

That statute applies to the platoon system for fireman.

It says you have the fireman on 24 hours, off 24 hours, and they can work 56 hours a week, but only after that has been approved by referendum of the local voters and no one can look.

If the regulations were promulgated on the 20th of December 1974 by the wage in our administrator for the Secretary of Labor and not see that this New Jersey statute is wiped out completely.

And all across this nation from the New England town meetings to the referenda that they are so popular at West where they have a referenda almost on everything, every time we have had a fundamental increase in money or fundamental change in providing unique services uniquely needed by a particular city or state because of geography and other reasons, there’s always the possibility new other people voting on it as they did in New Jersey.

But under this act and under the actions of the appellee that ballot box control is gone forever.

Now, this act as I say is a massive imposition down at top of massive legislation that’s already in effect, affecting states and cities.

This is where they spend most of their money.

Mr. Solicitor General, I didn’t mean to hit you.

Audio Transcription for Oral Reargument – March 02, 1976 in National League of Cities v. Usery


Charles S. Rhyne:

They spend as I say, 85% of their money on personnel and they have a very — carefully down through the years developed civil service and tenure laws for their people.

And now, instead of — and I think this illustrates it best.

Instead of looking to the city council, looking to the local processes, procedures, the Civil Service Commission of the City of New York are the Civil Service Commission in the State in New York.

What they do here is they look to the appellee, the Secretary of Labor and they looked to the Congress because once this power is established, every kind of employee in this whole nation has to go to the Congress or can go to Congress to get their employment status changed.

So they no longer look to City Hall, they no longer look to the state capitol.

This is a vast change in the outlook and the power and it’s the centralization here in the federal Government of power over the most important group, because the cities are bundles of legal powers.

They can only act through people and this act touches every one of them.

It’s an assertion of sovereign power over every employee of a state and city throughout the nation.

One of the experts that I would like to call the Court’s attention to, to nail down how complex, to nail down how massive, to nail down the fact that this is a double standard of hours and wages is the Chairman of the Civil Service Commission.

The Chairman of the Civil Service Commission appeared and I quote from about three sentences from page 9 of our brief.

He appeared on the 26th of February 1975 before the Committee on Post Office and Civil Service in the House of Representative and this is what he said,“The extension of the Fair Labor Standards Act to federal employment is a case in point.

It adds a new set of complex provisions to the already existing provisions of Title V.

It creates two standards, governing pay and hours of work.

It results in double record keeping and double work.

It is an extremely high administrative cost —

William J. Brennan, Jr.:

Mr. Rhyne, what are you talking for us?

Charles S. Rhyne:

I’m reading three sentences from page 9 of our brief Mr. Justice Brennan.

William J. Brennan, Jr.:

But why —

Potter Stewart:

— your replied brief.

Charles S. Rhyne:

Yes, I’m sorry.

Potter Stewart:

By of April 12?


On page 9 down in the middle of the page, I’m reading three sentences from the testimony of the Chairman of the Civil Service Commission who spoke of how complex this act when it’s imposed down upon the civil service system of the United States of America and how it imposes double standards, double bookkeeping, double work for negligible benefits.

Now, it’s even worst for states and cities because while the Congress gave this regulatory power to the Civil Service Commission so that disruption could be avoided.

Just think of what it’s doing to the states and cities, we were all placed in with commercial enterprises before the Secretary of Labor.

We have in the act and in its application in this power shift, so many instances similar to the one I cited in the New Jersey where the existing law of states is wiped out, where the existing processes, procedures and such with respect to employee rights is wiped out.

Now, another thing this act does, it brings a whole new set of definitions of overtime of who is an expert.

There are 51 pages in the Code of Federal Regulation about who about what overtime is.

There are 42 pages defining who is an exempt person.

Now, the Civil Service Commission that we quoted in our brief said they’re going to define themselves who is an exempt person.

Audio Transcription for Oral Reargument – March 02, 1976 in National League of Cities v. Usery


Potter Stewart:

But my major point is that there is such a vast shift in power to say what overtime shall be, just say who shall be exempt.

All these kind of things when you impose those down on the area where states and the cities spend the majority of their money, where they have developed all these rules and regulations as in New Jersey for years and years, and their people have voted them in or voted them out and that’s all gone now.

You’re going to have it imposed from on high by the Secretary of Labor or by the Congress.

The big impact in one area I think is most dramatic and that is in the area of voluntarism.

In the United States of America, in Government areas, we depend more on volunteers than any other system of Government in the world.

And if the local level, we have volunteer fireman, we have volunteer police, we have volunteer of this and volunteer of that, there are millions of them.

Now, this act when it was written, it defined employ as to suffer our permit to work.

Now, that’s all right insofar as private industries are concerned because they don’t have this volunteer problem.

But look at the states and cities who sometimes pay a volunteer fireman $2.50 to go on each fire, look at the situation that exist where they sometimes give the volunteer policeman uniforms and they sometimes pay insurance on them.

Now, the only answer to that appellee is well, you just have to take it case by case as to where.

A volunteer crosses over the line from being a volunteer to being an employer or employee.

And so, that creates this consternation all across our nation and in other area, it’s going to be very, very damaging.

At the local level, we use thousands of interns.

Now frankly, the interns are not worth that much to local Government, it’s more of a favor to the intern to bring then in then it — to a really a benefit for a state or city.

But now, they are going to have to be paid if certain things occur because of the interns have to leave and you pay him a little bit, you’re going to have to pay him a lot.

But there’s another area where this whole thing really hurts.

Many of the volunteer firemen, as the record showed, many of the volunteer policemen are already, let’s say a city engineer or schoolteacher.

Now, if they go out as a volunteer on a fire or for some as a policeman and they worked in addition to their 40 hours as an engineer or schoolteacher, a few more hours and they are rule to be an employee during their volunteer time because they receive some minor compensation.

Well, the act says that you’ve got to pay them time and a — over — time and a half for overtime at their same rate of pay.

Their may be a highly paid engineer getting $25,000.00 a year and when you look at paying him overtime for his volunteer firework or as volunteer police, you just mess up the structure of voluntarism throughout our nation.

I don’t think there’s ever been anything that has so cost, confusion, and this massive confusion was referred to by Mr. Alan Prichard, the Executive Vice President of the League of Cities in the record here saying that, “No one could really tell where you are and where you’re going because you have all of these complex regulations imposed suddenly down on already complex, already regulatory regulations of the status and tenure of city employees.”

But, perhaps, one of the most devastating fears of states and cities is that this act creates class actions.

Now, you don’t have class action against cities under their current set up but they do have fair hearings, they do have court cases, and as we point out giving any time, the one-third of all litigation before state courts is really involving personnel matters.

So here, you have this act saying that you can either — the appellee or an employee can bring a class action.

His attorney gets attorney’s fees, it gets cost, and you get double time, triple time if you win.

Now, from a state in determining whether a man has crossed that line as a volunteer, from a state is to whether the intern gets too much, the damage is enormous because they can make a mistake of fact or law.

In a city like New York, it cannot run up to enormous, enormous cost.

William H. Rehnquist:

Mr. Rhyne.

Charles S. Rhyne:


William H. Rehnquist:

I supposed that Darby Lumber Company probably made most of the arguments you’re making now when it sought to challenge the exercise of Congress under their commerce for passing the Fair Labor Standards Act to applicable or private business.

Audio Transcription for Oral Reargument – March 02, 1976 in National League of Cities v. Usery


William H. Rehnquist:

Certainly, private business is when if the act went into effect in 1938 had to make very, very significant changes.

I take it — your point is that not only other changes but that this is somewhat different than just the Congress imposing regulation on a private business.

Charles S. Rhyne:

Yes, Mr. Justice Rehnquist, it certainly is.

I think commerce is commerce and business is business.

And in this area here, you didn’t have a lot of private business that had laws.

You see, private business can’t legislate, adjudicate tax and so they’re an entirely different category than the private businessman.

He can immediately adjust to take care of any cost.

So these in states have to give all kinds of notices or a wait until you come around for the next budget year and things like that.

So, I am not sure at all that Darby presented the same kind of impact.

I don’t think so because you didn’t have the civil service laws in states similar to the federal service law.

You didn’t have all of these appeals that you have there through Civil Service Commissions or personnel commissions.

You didn’t have all of that kind of thing and you certainly didn’t have the volunteer situation in Darby.

So, I think this is entirely different in — actually, the basis of our whole argument is the distinction between Government and commerce.

And so, I would —

Byron R. White:

Well, have you made any arguments that were made in Maryland against Wirtz?

Charles S. Rhyne:

I think we have Your Honor.

I think that we have here presented the massive impact of this act upon states and cities looked upon as an entirety.

Now in —

Byron R. White:

So you would leave Maryland against Wirtz alone?

Charles S. Rhyne:

I would not.

I would say in Maryland v. Wirtz —

Byron R. White:

So you think we must overrule Maryland against Wirtz?

Charles S. Rhyne:

I would say — I would like to see it overruled.

There are some distinctions but I can’t tell you that — what the distinctions I draw.

Byron R. White:

But the hold for you must be overruled Maryland against Wirtz?

Charles S. Rhyne:

No, but I think it should be.

I think like the lower court which said it was troubled and that the broad language of Wirtz that this Court might want to call back from.

Byron R. White:

I supposed you did think of a lot of cases in the books that you think about to be overruled, but —

Charles S. Rhyne:

Well, I’m just thinking of this one right now.

Byron R. White:

Well I know you’re thinking of this one, but why is it involved in this case, Maryland against Wirtz?

Audio Transcription for Oral Reargument – March 02, 1976 in National League of Cities v. Usery


Charles S. Rhyne:

Why isn’t it?

Byron R. White:

Why is it?

Charles S. Rhyne:

Well —

Byron R. White:

Why do you think we should overrule it?

Charles S. Rhyne:

All right.

I think you should overrule it number one, because it is so fuzzy.

You can’t really tell.

I’m going to the ultimate now what it decided.

You left open for example the ultimate consumer question —

Byron R. White:

But why is it involved in this case?

Charles S. Rhyne:

Why is it?

Byron R. White:


Charles S. Rhyne:

Because after looking at the enterprise system and upholding it as applied to all these private business criteria and all those private business cases, the next thing the court did, the majority opinion was to say now that we have upheld that act as applied to this criteria of nexus to commerce that’s always been applied in a private business thing, we don’t find enough of impact on states here to bring the Tenth Amendment into focus.

Now, of course hospitals and schools, they don’t legislate, adjudicate or tax, and so, there’s an — and then to the — the court pointed out, there’s a court below who found that these schools and hospitals were in competition with the private business.

So, I would say to you Mr. Justice White, we are presenting an entirely different in many ways, factual picture to you and we think that distinguishes Wirtz there, but we also think that as the dissent in Wirtz said, “If we uphold this enterprise system as to schools and hospitals, then the Congress can declare an entire state or an enterprise and the federal Government can regulate its entire budget.

Warren E. Burger:

But if you can distinguish it, that seems to be one of your objectives, why not tell us what you —

Charles S. Rhyne:

Well, the distinction is out.

I withdraw Mr. Chief Justice are these: Number one, the court didn’t decide this ultimate consumer question you have here now before you in Brennan v. Iowa.

Number two, it seems to limit the application of the act to those schools and hospitals who are in competition with private schools and hospitals.

And then finally, it seemed to say to the dissenters when they say you can take over a whole state by declaring an enterprise.

The comment was not while this Court sits.

So, I think that there are factual distinctions there which showed that Wirtz hasn’t had the impact on state and local Government that this massive takeover that we have here has had.

So — but I still think that the court should have in Wirtz considered the principles of constitutional federalism which we urge upon this Court and it didn’t.

It just said because we’ve already upheld this, commercial enterprise, the Tenth Amendment doesn’t mean anything.

We go ahead and apply it.

So, I would say to Maryland versus Wirtz that it does not control this case because I draw from the principles of constitutional federalism and certainly, we have in our briefs going into this very, very deeply.

This general rule that under the constitution at it was written even prior to the Tenth Amendment, all of the framers of the constitution were enunciating this idea that the federal Government could not and would not interfere with the states in their area of operation as Mr. Chief Justice Marshall said in MCulloch v. Maryland and vice versa.

There would be no interference.

And where do I find that rule?

Well, I find it in the debates on the constitution of 1787.

Audio Transcription for Oral Reargument – March 02, 1976 in National League of Cities v. Usery


Charles S. Rhyne:

I find it in the Federalist Papers.

I find it in the decisions of this Court.

I find it in statements of two Secretaries of Labor who opposed the application of this act to states and cities because it would be an undue interference and undue disruption and might bankrupt some of the small cities of this nation.

I find it in the veto message of one president.

I find it in the statements by the Intergovernmental Relations Commission, which is the expert commission set up to look at these things.

I also find it overwhelmingly in the interpretation which the Congress itself has given to this intergovernmental relationship from the beginning of our constitution until now.

In statute after statute, they have exempted states and cities for this very constitutional reason and even in this act up until 1966, it was complete exemption, they didn’t take out that complete exemption until they brought public agencies in now as commercial enterprises.

So, I think our founding fathers understood the difference between Government and private business all through that constitution.

There’s more than a hundred mentions of states, only states can bring an original action here, no private person can do that.

I believe there has been an awful lot of fuzzy thinking about everything in our whole nation being commerce and it isn’t.

Certainly, the act of a policeman in making an arrest isn’t commerce.

The act of a fireman in putting out a fire isn’t commerce.

The act of a judge of a state or of a city in deciding a case isn’t commerce.

The action of a zoning board in deciding a zoning, it isn’t commerce.

Now, all of this kind of thing Mr. Justice White was not presented in Maryland versus Wirtz as far as I can tell and I’ve read all the briefs in that case and there’s no reference to it in the majority opinion.

And I think these are the kind of things that the dissenters were concerned with when they were saying you get a mighty small little perspective on this whole problem when there is looking at hospitals and schools.

And now, we’re presenting the whole picture, and when you look at the whole picture, there’s certainly a massive intrusion, a massive control by the federal Government for the first time in the history of our nation of every person, every service rendered by states or cities because what this act does is it re-spummels the way they’re going to do for service, it re-spummels the way you’re going to do a lot of things.

And we say that it imposes enormous cost and when you impose enormous cost, that’s one thing, but the big thing we talked about is the shift in power, the shift in power from the states to the federal Government.

Now, do we want it?

Isn’t this a massive interference with our constitutional system of shared powers, our federal system?

We talked about federalism, federalism, federalism.

Well, federalism has served this nation very well and up until now, states and cities who are urged have fairly taken care of their employees, who have collective bargaining of statutes and agreements and there are thousands of their members belong to unions as you can see from the amicus brief here.

All of that was never forcefully presented as far as I can tell in Maryland versus Wirtz.

And here, I could not say it — more strongly than I have, I just think that we’re looking at such a major shift of governmental power in our nation.

Something we have never had before and when you look at the necessity of it, what does the appellee said?

He says that in 1973 when they were considering this act, it would only increase the payroll cost of states and cities three-tenths of 1%.

He says also in 1974, it only increase the payroll cost and that would be $120 million a year incidentally.

And in 1974, it would increase the payroll cost only one-half of 1% or $165 million.

He says these police and fire regulations that he put out in December will only cost $27 million.

William H. Rehnquist:

How many employees are covered by these amendments?

Audio Transcription for Oral Reargument – March 02, 1976 in National League of Cities v. Usery


Charles S. Rhyne:

Mr. Justice Rehnquist, all employees of states and cities are covered because you have to keep a record on each of them.

William H. Rehnquist:

Oh, how many are those?

Charles S. Rhyne:


William H. Rehnquist:

And the ones that exempt from the —

Charles S. Rhyne:

Under the professional exemption and such?

William H. Rehnquist:


Charles S. Rhyne:

We have a great dispute among us is to how many that is, the elected people.

So I think the safest thing for me just to say is; we are looking at the whole of it because they require that a record be kept with respect to the state court judges, all the exempt people.

So I think that the pervasive nature of it, the fact that it touches everybody that a state or city employed, I don’t think can be dispute.

William H. Rehnquist:

What if you look at it from the point of view most favorable to the Government; that is the most limited number of people who are actually affected by the minimum wage and overtime provisions.

Charles S. Rhyne:

Your Honor, I don’t believe that that changes in the slightest, because de minimus impact doesn’t create constitutional power and as I read; all the background of the constitution and history of it up until now.

Warren E. Burger:

Well, does this record show how many would fall into this exempt class under the 11 million and 4?

Charles S. Rhyne:

It doesn’t show it absolutely Your Honor.

They try to contend.

Of course, there are very few covered and we say well everybody is covered, and we don’t have figures as to the exact numbers.

Now, they claim that very few were covered under the hospital, thing very few covered here.

I think they would probably claim that less than half of all the 11 million and 4 are covered.

But I say that has no constitutional significance because they claim power over them all.

William H. Rehnquist:

Well briefly, if less than half are covered, that could still be what, four or five million?

Charles S. Rhyne:

Yes, I think they will admit up to six million.

William H. Rehnquist:

Well, I wouldn’t call that de minimus.

Charles S. Rhyne:

Well, the — they say that has a — only a showing that they’re not covering everything.

I don’t call it de minimus either.

But, they are attacking the statement made by Congress that because in the overtime area for example, states and cities have such fair overtime premium laws now that there would be less than 1% added to the payrolls by the new overtime provision of this act and things like that.

Now, I just think that de minimus, de minimus, de minimus, doesn’t create constitutional power.

And I find here in all of this history of constitutional federalism a sturdy, steady unwavering adherence by everyone up until now including the decision to this Court that the constitutional federalism is something that limits everything where you have — in the constitution where you have a conflict between two Governments.

You have the tax power, you have the bankruptcy power where time and time again this Court had said hands off states, hands of cities.

You have cases like in the transportation field where over Maryland versus Johnson for example where the court held and Mr. Justice Holmes wrote the opinion.

He said, “Don’t try to get us to decide this on these commerce cases involving private entry have nothing to do with it.

What we’re talking about here is Government.”

Audio Transcription for Oral Reargument – March 02, 1976 in National League of Cities v. Usery


Charles S. Rhyne:

And so on the basis that he held it was invalid from Maryland to charge a postal truck driver a $3.00 driver’s license fee.

So, the amount regardless of how many you have on either side should not decide this case because I think on this record, it is beyond question that the Congress is claiming power to regulate every state and city employee.

And I believe that the factual picture of this overwhelming massive change in Government, the centralization here of everything with everybody running to the Congress as they want to change in time or in their personnel status.

Thank you.

Warren E. Burger:

Thank you Mr. Rhyne.

Mr. Jones.

Talmadge R. Jones:

Mr. Chief Justice and may I please the Court.

I bring to the Court what must surely be a simple and true proposition but which is nevertheless escape the attention of our distinguish Congress; namely that the states are Governments not commercial enterprises.

We examine today the constitutionality of the 1974 amendments to the Fair Labor Standards Act, an effort to convert the states into enterprises and thereby regulate and control the minimum wages in the maximum hours of their respective employees.

I wish to briefly outline the an foreseen consequences of the amendments on the California civil service system and then time permitting and if really necessary to point out the unconstitutional dimension of this unprecedented intrusion into the severance sphere of state Government in the name of commerce.

If I may, I’d like to turn to a purely governmental function of state Government namely fire-suppression; certainly, that is unique to the states in the cities in the counties.

I think our brief is out of what we pointed out the physical impact, but let me give you a few statistics and show you why a fireman is not a fireman.

California does not operate a Norman Rockwell type fire department with the friendly Dalmatian sitting in front of the station house.

We’re 700 mile in length and we have 61 million acres of force that we protect out there, you could squeeze in eight of the North Eastern States into the State of California and still have room left over.

We have more wide land undeveloped acreage then the library of Congress has books.

Its rugged topography, it takes you three hours to get to a fire many times, sometimes you have to come in by parachute.

40% of the United States Force Service budgets is spend in the state to California in 18 national force.

And when we have fires we have fires, we don’t extinguish fires; we have wars against fires.

They last for weeks.

In 1970, we lost over 500,000 acres.

At one point in one single period in a 13-day period at one peak, we have nearly 20,000 fire fighters on duty in the State to California fighting fires.

Warren E. Burger:

Where these all full time or that includes volunteers?

Talmadge R. Jones:

These were professional fire fighters Your Honor.

Warren E. Burger:

Full time professional —

Talmadge R. Jones:

Full time fire fighters from the cities, the counties, the state, all joining together to fight this tremendous holocaust we have in California.

Warren E. Burger:

What are the total number of employee as in California if the record shows its —

Talmadge R. Jones:

The total number of permanent personnel Your Honor is over 2,000 in the California division of force.

Warren E. Burger:

I’m not speaking of just the force; I’m speaking of all public employees who would be subject to having their wages fixed under this act not just reporting.

Talmadge R. Jones:

I can’t give you the exact statistics on that, although I think the court can take judicial notice of the fact that in California, there’s more Indians than there are chiefs; namely, the supervisory and professional executive exempt what the Department of Labor claims exempt and we still don’t know who those are.

Those are far less than the number of employees that are covered.

Audio Transcription for Oral Reargument – March 02, 1976 in National League of Cities v. Usery


Warren E. Burger:

The State of California must know how many public employees there are in state of local Governments.

Talmadge R. Jones:

We have — if you want the raw numbers, we have over 200,000 total state employees.

Warren E. Burger:

That’s what I was trying to get on that.

Talmadge R. Jones:


And I’m sure that if we can extrapolate, I’m sure we have over a 100,000, at least a 100,000, that will covered by the FLSA amendments.

Now what’s the point of this dramatic recitation of mine on the fires in the State of California?

Well namely, this firemen run up a lot of overtime and our practices then according to state law to give this man a premium during the entire fire season of 15%, they suddenly jump grade 15% during the whole season.

And the overtime they worked, they taken the winner months which they prepare so they can work secondary jobs and visit with their families during the holidays and the like and you don’t hear that California employees association complaining about the current arrangements.

Yet according to Fair Labor Standards Act now, we’ve got to reduce these men to 60 hours per week and pay them time and half for every hour in excessive that, and our ability to recognize this overtime in order than cash is completely eliminated because the Fair Labor Standards Act requires that if you going to give them compensating time off, you have to do it within 28 days or pay the bill.

Now, what possible business is it of the federal Government to dictate how we run our fire service program in the State of California when it’s been proven satisfactory for all these years?

The impact is $23.6 million annually to change our practices in accordance with the Fair Labor Standards Act.

What about volunteerism?

Mr. Rhyne mentioned volunteerism.

In California, the cities and the counties work side by side in a mutual aid program that is unmatched any place in the country.

They furnished these services to each other gratuitously.

In some of the type of fires I mentioned a moment ago, the big ones, the uncontrollable fires, the Fair Labor Standards Act is going to wipe that out.

The impact on mutual aid alone in California is $6 million because volunteerism — because these firemen are firemen.

When they’re pulled in to cover a reserve unit while the rest of the crew goes in helps a neighboring jurisdiction, overtime rule start applying and the bill is a big one.

We may point out that the national league statistic on this thing on the effective this act nationally is very conservative.

They estimated it $200 million and they base that on paying overtime to all the firemen affected.

That’s a conservative figure.

What the Fair Labor Standards Act would like us to do and what we’ve base our statistics on the State of California is reducing those hours and hiring new employees.

The act wants to hire new employees.

So if you take that figure, if the national league had gathered those figures, we be talking about $400 million annually to state and local Government.

The other adverse effects on civil service have been demonstrated by Mr. Rhyne I think very well during his argument.

Another thing that you don’t realized when you start fooling around with the working class salary at state levels is that you suddenly create compaction problems in the supervisory classes too.

Let’s remember that if you start paying overtime and adjusting the wages of the working line firemen in state in local service, you’re going to be paying the Indians more than the chiefs and that’s not going to last very long.

So the rippling effect all the way up through civil service is going to be felt and we have no idea what those figures are going to run but they’re going to be big ones, and once which we think can’t be supported in fact or in the constitution.

William H. Rehnquist:

Well, Mr. Jones about a generation ago, the State of California was back here saying it was none of the federal Government’s business how it run the beltline railway.

And, this Court in the anonymous opinion give fairly short shrift to its argument said that if Congress wanted to exercise the commerce’s power that was Congresses prerogative.

Audio Transcription for Oral Reargument – March 02, 1976 in National League of Cities v. Usery


Talmadge R. Jones:

It’s my distinguish colleagues in the Office of the Attorney General have taken the broad of this Court on three different occasions, on the federalism issue.

And the Solicitor General argues, these are the wrong facts, this is the wrong time and the wrong place to draw any lines on the Commerce Clause.

I disagree.

I think if you look at those early cases, you’ll see they’re easily distinguished from what we’re talking about here.

Let me emphasis that virtually all state employees are covered under this act.

Warren E. Burger:

I supposed one difference is that the State of California or any other state can run or not run a railroad but they have no choices about running or not running a police departments and fire departments.

Isn’t that one that’s been —

Talmadge R. Jones:

That’s correct Your Honor and that’s the very next point I was getting to.

Solicitor General argues that the FLSA does not affect the policy making powers of local Government, but merely the means by which we implement that policy.

You’re point Your Honor is right on point; namely, there is no election.

There is no election.

We have to provide fire service, and police, and law enforcement.

Mr. Justice Marshall said in his concurring opinion in the employees of the State of Missouri versus the Department of Public Health, when we were talking about Article 3 Immunity of the States that the states couldn’t waive their immunity because they have no election.

They have no option.

You can’t waive what you have no opportunity to waive.

You have to provide fire service.

You have to provide police service.

Therefore, any imposition by the federal Government is a mandate.

It has nothing to do with discretion.

So, let’s be clear that this Fair Labor Standards Act is a direct intrusion, a mandate into state and local Government.

We’d loved to the words case overruled because Congress, when they read your words, what we think are clear words, they misconstrue them.

Thus in words, you warned in the response to Justice Douglas and Justice Stewart that under the enterprise theory, you convert the entire state into an enterprise.

That’s exactly what Congress has done.

They’ve turned the states into a commercial enterprise.

Look at Footnote 27.

Thurgood Marshall:

What you want this Court to do is to decide this case on its facts and then in the last sentence say and while we had it, we overrule round against words.

That’s really what you want?

Talmadge R. Jones:

That’s an excellent suggestion Your Honor.

Of course, in my brief at least on behalf of the State of California, I haven’t said that directly but I have attack words from so many sizes that you have to draw that conclusion.

This is not a words case.

Audio Transcription for Oral Reargument – March 02, 1976 in National League of Cities v. Usery


Talmadge R. Jones:

The state is not an enterprise.

This Court specifically held in many cases involving federal acts that if we were going to talk about what affects commerce and you want to talk about enterprises affecting commerce, then, be specific.

And I talked about two recent cases of this Court, very recent cases, not two months old.

Lament, the lack of specificity in these federal acts.

Thurgood Marshall:

Those two where we headed?

Talmadge R. Jones:

That’s on this Your Honor.

I think that you held in one of those cases that Congress said not been specific.

They haven’t been specific here either.

We’re not talking about schools and hospitals, in fact they took schools and hospitals right out of the act.

And now they say, “All state employees”, except to the Department of Labor at its pleasure decide should be exempt.

We think that words of course is irrelevant.

It could be overrule simply on the fact that because the state purchases goods in interstate commerce, it’s thereby engaged in interstate commerce.

A question this Court has never addressed itself to is what do the states and cities and local Government do with the goods they purchased in interstate commerce?

Do they mark them up and sown with the public?

Absolutely not.

Even the Fair Labor Standards Act itself recognizes that ultimate consumers of goods purchased in interstate commerce are exempt.

This is been an implied recognition at least on our part that people like states who consumed goods, they don’t pass them on, our ultimate consumers exempt from the act but of course California doesn’t compete.

The lower court found that to be true.

We don’t complete in interstate commerce.

You won’t find California recruiting state employees.

They’re waiting in line in the civil service roles in the State of California to join state service.

Art state employees are among the five highest paid in the country.

So, don’t tell me about competition.

We don’t compete.

We don’t run ads in the New York Times which I’ve seen in one of the amicus briefs.

And what about labor strife, that’s another rational that they’re trying to hit us with.

No labor strife in California.

State employees go out on strike, we get things call injunctions and they go back to work.

And I haven’t — nothing has been pointed out to me showing that there’s any labor strife in California that requires the Department of Labor to regulate local activity.

Your Honors, the Fair Labor Standards Act touches the very heart of state sovereignty as a patent denigration of the constitutional right.

Audio Transcription for Oral Reargument – March 02, 1976 in National League of Cities v. Usery


Talmadge R. Jones:

Yes, I said, the constitutional right of the sovereign states to deal with their employees in a manner best suited to local needs.

Simply stated, the act is unconstitutional and we hope and we trust that this Court will so hold.

Thank you Your Honor.

Warren E. Burger:

Mr. Solicitor General, there’s only one minute waiting before lunch.

I think we’ll not ask to speak for one minute.

We’ll resume after 1 o’clock.

Mr. Solicitor General.

Robert H. Bork:

Mr. Chief Justice, may it please the court.

I take it to the crux of the argument we’re having today is really the impact of the 1974 amendments upon the Fair Labor — to the Fair Labor Standards Act upon state in local Government sovereignty or to put another way upon the system of federalism established by the constitution.

I think the issue therefore is whether Maryland against Wirtz should be overruled in the position of the dissent there become the new law.

I intended about myself primarily to that question because the preliminary matters seemed to me to be too plain to require much additional extended discussion.

Warren E. Burger:

I take it that means you see no difference between policeman and fireman on the one hand and hospital attendants on the other for constitutional purposes.

Robert H. Bork:

Not for the purposes of this case Mr. Chief Justice.

This does not — the statute does not require state to give up any payments or any number of policemen and firemen state if it does financially pinch.

And I think it will not for reason that will come too can give a peripheral services which are not inherently governmental, which in no sense of the word are inherently governmental.

Warren E. Burger:

That becomes the business of the Congress of the United States that they should give a peripheral service.

Robert H. Bork:

It’s not the business that Congress of United States to tell them what they must give up and the statute is not.

Warren E. Burger:

Transposition, if that’s the bound on this wound that you’re thinking about this morning?

Robert H. Bork:


I think in the first place Mr. Chief Justice, I failed to see the wound for reasons I will develop.

But in the second place, I think this is a very unintrusive statute, much less intrusive than many kind of statutes that are concededly valid under the commerce power.

As we’ve said, this statute does not tell a state that it must give up any objective or that it must pursue any substantive object or any program.

It leaves the state free entirely to choose all of its programs, keep them all abandon anyone that sees fit, but it does not have any policy control over the states as many federal statutes do which are valid into the Commerce Clause.

But I thought I would spend a moment upon the Commerce Clause predicate here before coming to the issue of whether federalism isn’t some sense threatened.

I think there can be no doubt that interstate commerce is involved when state and local Governments in 1971 purchased goods and services worth $135 billion which was at that time 12% of our gross national product, and I think there can be no doubt of a significance of these 1974 amendments to interstate commerce when we realized that they extend the coverage of the act to an additional 3.4 million state and local Government employees.

The 1966 amendments upheld in Maryland against Wirtz extended the coverage to 2.9 million employees, so that there are now a total of 6.3 million employees protected by the Fair Labor Standards Act.

And there are variety of reasons why this wage is an hours long is rationally related to Congress’s power to control commerce.

Now, I’m really sketch because I think they’ve been upheld in so many decisions of this Court that they need not be argued at length.

But first of course is simply that substandard working conditions can lead to labor disputes which interrupt the flow of goods and services across state lines.

William H. Rehnquist:

Of course, the kind of reasons you have giving now are equally applicable to a private business.

Audio Transcription for Oral Reargument – March 02, 1976 in National League of Cities v. Usery


Robert H. Bork:

That’s what I meant Mr. Justice Rehnquist when I said I would spend just a moment on the predicate treating this as a commerce power case before we come to the special problem, appellant’s raise about the fact to the state and local Government.

That labor strife theory of course is in the congressional findings in the original act.

It is a basis for this Court upholding the 1966 amendments and their application to state and local Government in Maryland against Wirtz.

It was advanced by Senator Javits in debate in advancing the 1974 amendments and of course it is the theory under which the National Labor Relations Board — National Labor Relations Act was upheld in Jones against Laughlin.

Competition again between governmental units and private industry which is required to comply with the Labor Standards Act is an unfair method of competition.

Third, competition between Governments exist and if some Government is used substandard labor conditions and compete with other Governments for new industries, new residence tourist and rather than raise taxes lower working conditions, they will tend to spread those working conditions to other Governments that are trying to compete for the same industries and rather than for tourist.

And in that connection, I would call the Court’s attention to the brief, amicus curiae filed by the State of Alabama, Colorado, Michigan, and Minnesota, states who apparently feel that their sovereignty is not seriously threatened here.

And at pages six and seven of that brief which I will not go through, they explained the competition between Governments and why that competition justifies the kind of statute amendments we have here.

And particularly, I would call the Court’s attention to the advertisements in the appendix which showed the State of Massachusetts advertising in the Sunday New York Times in March of this year to attract industry with tax incentives and the State of New York advertising in Fortune Magazine with tax incentives.

William H. Rehnquist:

Your earlier argument to the Chief Justice as I understood it was that this law has no effect on state policy choices.

Now, you’re in the effect saying it seems to me that the state is to be precluded from the sort of thing that Massachusetts is doing.

It’s not to promote tourism at the expense of employees’ salary.

Robert H. Bork:

Oh, the only — what I meant by that Mr. Justice Rehnquist was simply this.

It says “A state may follow any policy it wishes.”

The only thing — only limitation upon that is that any policy it wishes to follow may not be done at the expense of workers being paid substandard wages.

But, it does not attempt to dictate the policy that must be followed or tell the state that it must eliminate any policy.

Harry A. Blackmun:

General Bork, for which states was brief file?

Robert H. Bork:

Well, there were two briefs file.

The original one, it’s the identical brief.

All it happened is in the second filing and the State of Minnesota was added, it’s Alabama, Colorado, Michigan, Minnesota.

Harry A. Blackmun:

I just don’t have the second filing and I want to be sure about it.

Robert H. Bork:

The red brief, there were two red brief filed.

They are identical as I far as I can see.

Warren E. Burger:

— red too.

Robert H. Bork:

They both red, yes sir.

Byron R. White:

Speak for yourself.

Warren E. Burger:

Minnesota didn’t take the trouble to supply enough at least so that I got one Solicitor General.

Robert H. Bork:

The fourth theory that supports the commerce power here of course is the one cited in Katzenbach against McClung which is that the increase in purchasing power that follows from a setting a floor upon wages and so forth does benefit interstate commerce.

And finally of course, Congress believed as the Senate report said that raising a minimum wage rate at a level which at least helps to assure the worker a decent income at or above the poverty level is essential to the reduction of welfare roles and overall reform of the welfare system in United States.

And I would think that obviously spreading the work through overtime requirements and requiring minimum wages is a way of getting people off welfare roles and train as productive workers and that’s so obvious importance to interstate commerce.

Audio Transcription for Oral Reargument – March 02, 1976 in National League of Cities v. Usery


Robert H. Bork:

But these considerations, these various theories and so many times accepted by this Court and so overwhelmingly support that Commerce Clause predicate of the 74 amendments that I think the real argument, and the one I was spend my time on is the argument about federalism.

Now, there is no doubt of course that states enjoy no absolute immunity from Commerce Clause regulation.

And the cases to that effect recited in both the majority and to dissent in Maryland against Wirtz and in fact there is no doubt that the Commerce Clause maybe use to regulate what one might think of as an essential governmental function, similar to fire or police protection.

For example, in Sanitary District against United States, Chicago was prohibited under the federal power to control navigation and aspect of commerce from diverting water from Lake Michigan in order to carry away sewage, which I would think is an essential governmental function.

The real argument is not that there is an essential governmental function that may not be touched.

It’s that these amendments are swipe so broadly and has such an impact that they imperil state sovereignty and on entire constitutional system of federalism.

Now, that contention is advanced here in very hided terms, indeed in apocalyptic terms so that at first glance, one might think that this was very serious constitutional case.

But I think upon calm analysis, it would be seen that the only substance to the appellant’s argument here is a mixture of misunderstanding of the statute and a capacity for unlimited hyperbole.

Appellants asked this Court to overrule Maryland against Wirtz and I will not dwell upon the doctrine of stare decisis, more will I dwell upon the reliance of Congress and a variety of individuals upon the 1966 amendments and upon Maryland against Wirtz, although those are obvious factors which support the appellee Secretary of Labor here.

But I want to go to the policy question and I want to speak the constitutional policy question, and I want to speak to those issues under the constitution which indicate that Maryland against Wirtz should be followed.

The question raised by the dissent in Maryland against Wirtz and I take it, it is the same question being raised the appellants here, is does this federal regulation overwhelmed state fiscal policy?

Does the principle that must necessarily underlie the validity of the 1974 amendments permit the Congress virtually to draw up each state’s budget?

The answer to that I think is unqualifiedly no.

It does not.

The commerce power does not permit the Congress to destroy federalism.

Federalism is also a constitutional principle.

William H. Rehnquist:

You would conceive then that Congress does not have the same freedom under the commerce power to regulate activities of states and cities as it does those have private businesses?

Robert H. Bork:

I wouldn’t choose the word concession Mr. Justice Rehnquist because I think —

William H. Rehnquist:

You would affirm it.

Robert H. Bork:

I would affirm it.

Congress could — under the commerce power, I take it, perhaps nationalize private — much of private industry with compensation of course, but they could nationalize.

I take it there is no doubt that Congress could not takeover state Government and make the states merely administrative satrapies.

There’s no doubt it.

And if this case involved anything like that, appellants would have a very strong point and this case involves nothing of the sort so that —

Warren E. Burger:

Do you agree with the figures that were suggested this morning that the pay of personnel working for state and Governments in the country and municipalities generally is about 80% of the total cost of Government?

Robert H. Bork:

As I understand that the states of — pardon me, municipalities, the budget is 80% to 85% wages.

However, the affect of these amendments upon that share of the budget is under 2% which means that we’re talking about less than 2% of 80% to 85% of the budget.

Warren E. Burger:

Well, are you measuring the 2% by the increase that will be involved to bring them up to FELA standards?

Robert H. Bork:

Yes, I think — I think that is correct.

The best estimates, minimum wage law and overtime regulation.

Audio Transcription for Oral Reargument – March 02, 1976 in National League of Cities v. Usery


Warren E. Burger:

But it reaches into by the figure you mentioned, 85% of the total cost of Government of municipalities, is that the figure —

Robert H. Bork:

Yes, I believed California’s figure was 70%.

Warren E. Burger:

76% I think.

Robert H. Bork:

We said 76% and then the brief says 70%.

I forget to — that part matters —

Warren E. Burger:

It was not for state and local?

Robert H. Bork:

No, I take it that’s for state.

It reaches into in the sense that it applies to about half of the state employees now, and it will have an effect upon 80% to 85% of the state budget, but I don’t regard that as a meaningful figure because the effect that will have is very slight.

It spread very thinly across a large part of the state budget.

Warren E. Burger:

What’s to — was there anything that would limit the power of Congress to raise the entity just double the wages arbitrary or triple them or quadruple them?

Robert H. Bork:

Yes, I think there’s a variety of things to prevent that.

One thing that prevents it is that I — and this is not my whole answer, but I think it is a realistic answer of those worth giving, is the political makeup of Congress.

Congress is drawing from the states.

State parties are quite powerful, so that —

Warren E. Burger:

I’m talking about a practical political consideration.

I’m talking about, is there anything constitutionally to prevent?

Robert H. Bork:

No, I think there is.

I think there is.

I was — the practical political consideration I regard is constitutional in the broader sense the way our political parties and our nation is constituted.

We have a structural protection against that kind of thing happening.

The second line in constitutional in the constitutional law sense is of course this Court and I think if this Court ever sees that states are being deprived of political autonomy so that they are no longer variable policy choosing and policy making centers, this Court can say the value of federalism is being impaired and strike down the statute involved.

William H. Rehnquist:

Well, how could we make a principle distinction if we uphold this law and the case posited by the Chief Justice then does by some perhaps fluke of the political system come to us?

Robert H. Bork:

You can make a principle decision only in this sense Mr. Justice Rehnquist.

When this Court has over the centuries attempted to find a formula for confining the Commerce Clause, they have never found an adequate formula.

I suggest to you that you will never find a mechanical bright line distinction which will tell the Congress, you may do this to the states but you may not do that.

It is necessarily as in many constitutional matters are question of degree, a question of balancing.

That I think is not unprincipled and that I think is the only kind of test that’s available in this area.

And I think — I think it is not unprincipled to make judgments of degree to say there is a spectrum here and we will cut it at this point.

That I think is not unprincipled and that I think is the only kind of test it’s available in this area.

But let me — in approaching this matter and in showing why if this Court were to draw a line and say “We’re going to strike down a statute of Congress to preserve federalism”, I would think that this statute would be one of the last choices this Court would make.

Audio Transcription for Oral Reargument – March 02, 1976 in National League of Cities v. Usery


Robert H. Bork:

There are other statutes which this Court is upheld, which I think are far more intrusive upon federalism than this statute for reasons I will develop.

But I would like to add a dash of realism to the discussion so far just to put the matter in perspective.

And the first point about that is that it is true that the federal Government contributes far, far more to the state’s budgets then this major will ever cost them?

In 1975, the federal aid, the state and local Government is expected the total of $52 billion.

Warren E. Burger:

They could stop anytime?

Robert H. Bork:

They can stop that anytime Mr. Chief Justice.

I’m just suggesting that realistically, in terms of the drastic impact, we’re being asked to see here.

This is not much of — and in fact, I would suppose the kinds of conditions upon employment here could have been added as conditions to the grants.

Warren E. Burger:

What is that furnished support for a constitutional argument in this area Mr. Solicitor General?

Robert H. Bork:

Well, I think it does it only in the sense.

We have heard this morning extensive argument about policy issues and Congress shouldn’t do this because it’s going to cost us the following amounts of money.

I agree that those arguments perhaps have been addressed by the appellants to Congress rather than to this Court because they are not constitutional arguments as they were put.

But I think it’s relevant at least in counter balancing that to realize that we’re talking about a Fair Labor Standards Act which will have less than 2% impact upon a State budget and the figure I just cited means that the federal Government is financing about 22% of state and local expenditures, so that — this 1974 amendments are not as matters now stand going to swamp any fiscal policy that they hardly begin to measure up to what the federal Government pays for the states and local Governments.

The other item of realism that I would like to object, they inject is at this cry of the destruction, the immanent destruction of federalism has been raised in this Court in Commerce Clause cases ever since John Marshall was Chief Justice and I think it’s no more accurate here than it was in Gibbons against Ogden.

One of the more recent points of examples of this kind of rhetoric appeared in fact in the plaintiff’s states brief in this Court in Maryland against Wirtz.

I enjoy this particular line.

The States then said in Maryland against Wirtz, pardon me, ever before in the history of this nation has the federal Government presumed to enact the law which both in theory and in practice, serves as the basis for the other destruction of the state as a sovereign political entity.

Now that rhetoric so closely resembles the rhetoric of the briefs here and of the oral argument here that I begin to think that perhaps it must be a boiler plate somewhere for resisting the exercise of the commerce power.

Warren E. Burger:

Well, isn’t it the camel’s head in the tenth kind of argument?

Robert H. Bork:

Yes Mr. Chief Justice, it is a camel’s head in the tenth kind of argument impart, impart the briefs refer to this as — and the oral argument does as massive takeover, complete user patient, etcetera, etcetera, which I take it as not camel’s nose, I think it is the whole camel.

But then they back off and say, well, it is camel’s nose because if you allow this, then you must go all the way.

Warren E. Burger:

Well whatever it is, more of the camel is getting into the tents under this Court of Appeals holding then was in the tent before, is that not true?

Robert H. Bork:

Every time a Commerce Clause regulation is passed more of — of any kind, more of that camel is in tenth, I would suggest to you that this statute is less intrusive than most of the other kinds of federal regulations under the Commerce Clause, upon the area of state sovereignty than the other kinds are.

And therefore, if one is looking for — is calibrating the camel’s nose for the danger point, one would not choose this statute as a place to see the danger point.

But hardly enough, despite this rhetoric in Maryland against Wirtz or should I say so closely parallel as a rhetoric here, if the states were not destroyed, they were not even damaged, and I take it there, they seem to be healthier in many ways than they were at that time.

So I think just in terms of the rhetoric we’re talking about and in terms of the money we’re talking about, I mentioned this merely to suggest that the appellant’s argument about the imminent fall of the republic is entitled to be taking with a large dollop of skepticism.

Now, I’d like to make just three points about federalism.

First, in enacting these 1974 amendments, Congress was very responsible, went to a very responsible process and indeed it was very sensitive to state and local problems and to state sovereignty.

Second, I will argue to the law here involved is simply not of the type which is most threatening to state sovereignty and by nature, much less intrusive than other concededly valid exercises of the commerce power.

And third, I will argue that even if one ignores completely federal assistance to state budgets, the financial impact of the 1974 amendments is far too small to be thought threatening to state sovereignty in anyway.

Audio Transcription for Oral Reargument – March 02, 1976 in National League of Cities v. Usery


Robert H. Bork:

Since the appellants accused Congress essentially of negligence and failing to make estimates and make a credible study of the cost impact and so forth, it’s important to realize what the Congress did and the responsibility of the process.

This is not a case of an unconsidered statute reeking unpredicted havoc.

It’s not that at all.

I will draw the Court’s attention to the amicus brief filed in this case by Senators Williams and Javits, and particularly at pages 5 to 13, the Senators described the process which Congress went through here.

They had before them a detailed study of the cost impact of the 1966 amendments so that they could be guided by experience.

They had before them a detail study of the feasibility of extending the acts coverage’s was done in the 1974 amendments.

They had calculations of cost and they held lengthy hearings.

The National League of Cities and appellant here expressed in those hearings concern about the overtime requirements as applied to firemen.

In response, the Senate House Conference wrote Section 7 (k) which I will discuss later and which permits a departure from the acts other overtime requirements precisely to meet the kind of problem with the National League of Cities and the California are talking about.

So that — and Congress also exempted from coverage I might say, not only executive, administrative, and professional personnel, but also persons who hold public elective office, members of their personal stuff, persons who serve with a policy making level and so on.

Warren E. Burger:

Could Congress include them if they chose to do so?

Robert H. Bork:

I would assume Mr. Chief Justice that the question — they probably could include for example administrative or supervisory personnel.

I don’t think it’s necessary to reach that today to decide this case.

I would assume they could.

I think the question is, is the state seriously hurt?

Is the state no longer a viable policy making, policy implementing center because of what Congress has done rather than a question of the category of person covered.

Potter Stewart:

When you talk about what the Congress could do, it really brings you back to the conventional test and constitutional adjudication of any enactment of the Congress to United States.

Inquiry one, always is, is this enactment within the express or implied powers of Congress conferred upon it by the constitution of United States.

That’s your first inquiry when you talk about, could the Congress do this and you spent briefly, the first part of your argument saying yes so far as the commerce power goes.

Yes, it can, the Congress could do this.

The second inquiry always in the conventional procedure of constitutional adjudication when what’s involve is the validity of an Act of Congress is, even if within the power, does it run into some other prohibition or impediment contained in the constitution of the United States.

Be that impediment or prohibition in the Bill of Rights or in some other provision, explicit or implicit in the constitution.

So an answer to the Chief Justice’s question, you said that it could then I suppose it certainly could from the point of view of the power of Congress under the Commerce Clause.

The question is, could it from the point of view of some other impediment in the constitution?

Robert H. Bork:

I have meant Mr. Justice Stewart to answer that by saying that it could obviously in terms of the commerce power per se.

And when I said that the question —

Potter Stewart:

Something may well be clearly within the commerce power but also a clear violation for example of the First Amendment.

Robert H. Bork:

I had meant to say when I said that I didn’t think it depends upon the category of person but depended upon whether the states were in some sense destroyed as sovereign entities.

That was a case where you’re running into the counter bailing interest of federalism which I fully concede or affirm is a counter bailing constitutional principle which must be taken account of.

Potter Stewart:

And I say you gather you concede that there is a point with any similar legislation where that impediment or prohibition would make an Act of Congress unconstitutional even though within its commerce power.

Audio Transcription for Oral Reargument – March 02, 1976 in National League of Cities v. Usery


Robert H. Bork:

That is entirely true Mr. Justice Stewart.

If Congress pass the statute tomorrow which said that every state employee should be paid $50.00 an hour and it is all became impossible for state Governments to operate.

I would think that that would be not only seriously in question but I would expect it, it would be unconstitutional as a destruction of federalism.

And that’s why I say these things —

William J. Brennan, Jr.:

Would it also be, perhaps implicate a violation of the obligation of the United States for public —

Robert H. Bork:

I think it might.

It seems to me, the republican form of Government Clause has a lot more in it than we have conventionally taken out of it.

William J. Brennan, Jr.:

Well, I would suppose the situation — it certainly would be implicated whether or not the Congress had betrayed its obligations.

Robert H. Bork:

I didn’t mentioned that one solely because at least went into the argument about whether a republican form of Government is a political question and whether is justiciable and so forth, but I quite agree with you that I think whether or not it’s justiciable that would be a violation of the obligation United States to guarantee every state or republican form of Government.

But also runs back into the principle of federalism and I have —

Potter Stewart:

The structure of the constitution.

Robert H. Bork:

That’s correct.

Well, the principle of federalism as the appellants quite already point out is build into the structure of the constitution.

Nothing is more basic and my argument here has in no way suggests that it is not basic, it must not be protected.

It is simply is that this statute does not threaten that principle.

So that my point is, the Congress was concerned with the preservation of state and local autonomy in terms of general financial impacts, in terms of particular local problems which they adjusted the statute to take care of, and in terms of exempting anyone in any degree of proximity to policy making and they try to preserve the value of federalism.

And my remaining two points are that they completely succeeded.

The first one is that these amendments are by their nature, less of a threat to state sovereignty, then, most concededly valid exercises of the commerce power.

This is a conceptual argument and I will come to the financial impact to a moment which is a factual argument.

These amendments do not tell a state other than paying standard wages instead of substandard wages, do not tell a state that it must follow any policy objective, does not forbid them to follow any policy objective.

The law merely says that whatever policy you choose, you will not carry it out by paying the workers who carry it out, substandard wages and putting them under substandard working conditions which I think is a quite modest to constraint.

Now, that constraint conceptually is a much smaller interference with state sovereignty than a federal substantive statute which tells a state that from now on, you may not have a state law on this subject; it must be the federal law.

Now, that is an intrusion upon state sovereignty.

William H. Rehnquist:

Well, I’m not at all sure I agree with you on that point General Bork.

Under the Supremacy Clause, if you’re talking about federal regulation of a universe of private individuals versus state regulation of the universe of private individuals, certainly, the implication or not just implication but the provision.

The constitution says, if the federal Government acts within its delegated authority, the Commerce Clause, it shall be supreme.

But I don’t regard those preemption cases as being necessarily a guide to the situation where Congress seeks to work its will, not just on private individuals or businesses that have not been in a state but on the state itself.

Robert H. Bork:

Mr. Justice Rehnquist, I think — I would urge upon you that they are identical in that sense and let me put it in two ways.

One is between two individuals, if individual A is doing 50 things which he enjoys most to do and individual B has some power over him and says, you will not do item three anymore.

From now on, you’ll do what I want.

Audio Transcription for Oral Reargument – March 02, 1976 in National League of Cities v. Usery


Robert H. Bork:

So it is left with 49 that he wants to do.

Or individual B says, I don’t care which one you will give up but you have to give up anyone you choose.

I take that the first is a far more coercive intrusive interference with a individual’s autonomy and hence by analogy with the state’s sovereignty than the second.

William H. Rehnquist:

If you’re right, then you’re wrong in conceding that there is any federalism limitation on the commerce part because this Court has said time and time again or that it’s simply a private business challenging Congresses’ regulation under the Commerce Clause without asserting any affirmative constitutional defense of his own, the power of Congress is plenary and there is no limitation or whatever.

Robert H. Bork:

I doubt that that would be — I know that the court said that in those cases Mr. Justice Rehnquist and I think they are quite distinguishable cases in this sense.

Perhaps I can illustrate it by going to Maryland against Wirtz, the dissent there, was afraid that if the power to set a floor under wages is at a ceiling over ours was conceded.

The same principle might be extrapolated to the point where the Congress could draw up to the states budge which would be a destruction of federalism.

Now, I suggest to you that the same thing might have been said about the National Labor Relations Act which was upheld in Jones against Laughlin and deals with much the same subject matter is this.

People come in and say, you are ousting a state policy in the area of Labor Management Relations completely.

Whatever the state wants in this area doesn’t matter anymore.

The federal Government will tell them what the law is.

Now, the objection could have been made if we want to admit the principle that the federal Government can do that, then it follows that the federal Government can draw up the entire legal code of the states and I suggest to you Mr. Justice Rehnquist, if the federal Government acting into the Supremacy Clause, suddenly decided to draw up the entire legal codes of all the states for them that this Court would say, that goes too far, you have destroyed federalism.

William H. Rehnquist:

Well, so long as it was able to tie it the Commerce Clause and do certainly read a lot of congressional legislation has gone far to supersede otherwise valid state legislation.

Robert H. Bork:

I know it has and I think the question is always one of the aggregate impact, the question is always one of degree.

I cannot believe that this Court is really willing to concede that using the Commerce Clause, Congress can write every law of state has and it can virtually do that under modern interpretations of what affects commerce.

At some point, you can turn a state into nothing more than a geographical area.

William H. Rehnquist:

And you say that a private individual could assert that to the same extent that a state could?

Robert H. Bork:

I don’t see why not if a private individual happen to be hurt and a major constitutional value was in play, of course, perhaps the state would come in.

But I take it that if a state came in and brought an action to have the National Labor Relations Act declared unconstitutional rather than a private individual because it interfere of a state sovereignty.

I take it and it made the same argument that I just made that this principle would allow the federal Government to draw up the entire state code.

I take it that this Court would have upheld the act just as much as it did when a private individual brought the lawsuit.

But that is indeed my point that a law which does not oust a state policy but merely says, choose your own policy, there is going to be a slight additional cost in standard working conditions is a less coercive, less intrusive, less threatening to state sovereignty form of law.

And if you uphold the federal statutes which actually oust state policy from the whole areas, then this law I should think is not the law to start being concerned about federalism.

Potter Stewart:

If colley is in the other examples you’ve given us, the state often just — isn’t aware of the threat or even relaxes and enjoys it.

Robert H. Bork:

Well, I assume —

Potter Stewart:

And so, we don’t get the argument from the states.

We get it from the private individuals.

I’m thinking about the things such as the validity of the federal anti loan sharking law which was upheld to this Court with only one dissent or the Federal Relations Act for another example.

The states don’t see their interest affected and you’re telling us that they’re more gravely affected by that kind sort of legislation.

Then by this, the state sees the threat and therefore, we get the argument in these cases.

Audio Transcription for Oral Reargument – March 02, 1976 in National League of Cities v. Usery


Potter Stewart:

And an adversary system perhaps, we don’t fully consider the argument or apprehended in the other cases in which you’ve already told us, you see a greater threat to federalism.

Robert H. Bork:

I think that the kind of thing is greater.

I would trust that when a private individual comes in and says that state sovereignty is being destroyed that the court would not say, well, the state seem to be relaxing and enjoying it so we will uphold the statute on that ground.

I would trust the real consideration is what is happening to the system of federalism and not are the states willing to consent.

Potter Stewart:

But in an adversary system of justice, you have to have adversaries and in those other cases, the state has not been an adversary.

Robert H. Bork:

That is true, that is true, but I take it it’s the same value as in play and I take it to the court purports in those cases to address often the question of interstate or intrastate which is a way of protecting federalism so that they do pay attention to the principle.

William H. Rehnquist:

Many of those cases where the Commerce Clause legislation was upheld, the states were happy to have it upheld because there had been a no man’s land before.

The states couldn’t regulate because it was interstate commerce and the federal Government couldn’t regulate because there was some defect in congressional authority.

So your case is in the 30’s that uphold commerce regulation by Congress that was basically the full approval of the states.

Robert H. Bork:

It may be Mr. Justice Rehnquist for the full approval of the states.

I think the Labor Management Relations was not a “no man’s land”.

There were state laws, there were state courts.

Congress was not happy with what the state courts and the state laws were doing to Labor Management Relations and ousted the states from that field.

Warren E. Burger:

The 1938 on states have comprehensive labor laws of that kind.

Robert H. Bork:

Well, it might not have been comprehensive Mr. Chief Justice but they certainly had a common law —

Warren E. Burger:

Even a skeletal?

Robert H. Bork:

Well, they have common law of Labor Relations and there is a call up one of Congress’s complaints was that it was too easy to get injunctions out of state courts.

There was a developing law of Labor Management Relations.

It wasn’t a very happy law of Labor Management Relations which I think was the reason Congress entered the field.

Byron R. White:

But your point is about well made if the state policy has no law.

Robert H. Bork:

That’s right.

If the state chooses to have no law and let the thing be fought out by the adversaries, still, the entry of the federal Government is an intrusion upon a state policy choice.

I think — I do not quarrel with those cases.

I think upholding those statutes was a correct decision.

All I say is that this statute is less of an intrusion upon sovereignty than those statutes.

And therefore, one is to draw the line, one would not draw with this statute as made myself a point about it.

And I should say that its hardly even theoretically possible that one could use a wage in hours law in a way that would destroy state sovereignty because they are tied to necessarily — as long as they are similar to the wages and hours required of private employers and indeed of the federal Government as an employer of the impact upon the state and local Government cannot be so severe that state sovereignty is destroyed.

Well, this theoretical distinctions or considerations seem to me in and of themselves, sufficient to rebut appellant’s predictions of impending doom.

But I would like to move on to point out that the appellants have also rather thoroughly misunderstood the statute and its impact upon them so that the extravagant figures, claims as takeover and so forth are not really accurate.

Now, the charges made us so plentiful and reflect such a rich and very misunderstanding of what’s involved here that I can only touch upon the major items.

Audio Transcription for Oral Reargument – March 02, 1976 in National League of Cities v. Usery


Robert H. Bork:

First, the charge is that the 1974 amendments would cost some unspecified number of billions of dollars.

There are dozens appear to be any foundation for that at all.

The 1966 amendments had no impact even beginning to do that and there is nothing in this case that supports any speculation, we have had a breakdown of the items.

Now, the impact as I said is on 409,000 workers.

95,000 new workers covered by the statute and 314,000 workers covered by the 66 amendments now have the minimum wage raised to $2.00 from a $1.80.

But for the appellant’s theory of this case would of course strike down the 1966 amendments also so that I assume about 409,000 workers would be vulnerable with substandard wages.

But, their principal concern appears to be the overtime requirements to the act and that concern I must say is greatly exaggerated.

The premium for work over 40 hours per week can be avoided by using additional employees on a straight time basis.

That will spread employment and that is what the Congress intended.

When they complain about that, I can only say that of course this statute requires states to do some things, not very many, differently than they might otherwise do them; that is the purpose of the statute.

But the only specific national figure they give for the overtime cost is an estimate of $200 million for fire protection services.

And we agree that most of the cost of this statute will be indeed overtime cost.

But this $200 million that is mentioned is a vastly inflated figure.

It is based on the assumption that local Governments will not take advantage of the exemption of Section 7 (k) which I mentioned earlier which was put in the Senate House Conference on this bill, specifically because of the concern to express about fireman and overtime, and that Section 7 (k) provides that no overtime pay is due unless the employee works on average of over 60 hours per week in any 28-day period.

Now only about 10% of the firefighting personnel in this nation work in excess of 60 hours per week and even the appellant as to that 10% apparently calculates only about $30 million in additional cost across the nation for them.

Now California argues in its brief that these firefighters — their firefighters work an 84-hour week during the fire season, and that this act would have drastic results with respect to them.

I can see no impact of this statute upon the California system as it was described this morning.

The 84-hour week they described it in the California brief works as follows.

The firefighters worked four 24-hour days on followed by three 24-hour days off, followed by thee 24-hour days on and four 24-hour days off.

California assumes, since there is an 84-hour week in there that it will have to pay 24-hours of overtime every week.

But that is not the case.

Under the statute, since these firefighters are in duty for over 24-hours continuously, sleep and meal times can be deducted, so if you take four, if you deduct sleep and meal times from this, they will not exceed 60 hours a week and overtime will not be due.

Now in this connection, California complained readability about the compensatory time these firefighters work very hard during the fire season and take time off in the non-fire season.

But compensatory time does not arise as a problem under these amendments unless you work the fireman more than 60 hours a week.

If they don’t work the fireman more than 60 hours a week, they can give them compensatory time or anything else they want in anyway they choose without interference from this statute.

So that the entire system described this morning seems to me to fit well within the statute and not to impose the kind of additional cost or problems that California is talking about.

Now, the vexed matter of records and reports which seems to be confused almost beyond recognition, the question of reports which are discussed in the brief is simple, the act doe not require the preparation or the filing of any report.

The question of records is about as simple and let me say this, when the appellant say that this act reached every employee of every local and state Government, it does so only in the sense that, even exempt employees must have a record kept, but if we look at the nature of the records, there are records which are not required by the federal Government to be kept in any particular form and the only information they require is information that any employer would obviously have about his workers.

It’s the most elementary kind of thing.

You have to have —

Audio Transcription for Oral Reargument – March 02, 1976 in National League of Cities v. Usery


William H. Rehnquist:

Subject to inspection the way private employer’s records of wages and hours paid and kept are?

Robert H. Bork:

Yes they are.

What one must keep is the employee’s name, the date of his birth, his address, his social security number, and except for exempt employees, the daily hours he worked and the total wages he earned.

Now that as a record keeping requirement seems to me well within what any employer must keep as a matter of course.

Now the appellants have tried to confuse this issue by quoting at length from Robert Hampton who was the Chairman of the Civil Service Commission who was complaining about the application of this statute to the federal system and the federal system as at Page 9 and my brother Rhyne read from Page 9 this morning, I would point out the Robert Hampton had a special problem.

Congress want to pass this statute said you must give the federal worker whichever is better, Title V or the Fair Labor Standards Act so that they do have to keep records under Title V which different and under the Fair Labor Standards Act and they double computations and figure out in each case which gives the employee the better result.

No such requirement is imposed upon the state.

So that Mr. Hampton’s complaints are not relevant to the state.

Now the act does preserve the state may keep more beneficial statute than this if it wished but they are not mandated as they are for the federal Government, and therefore Mr. Hampton’s remarks are quite beside the point.

Now as to volunteers, the act as it has been interpreted and as it is enforced does not prevent the hiring — the use of volunteer in any part of state Government and indeed reimbursement for reasonable expenses is allowed as a guideline for example for volunteer fire departments.

$2.50 per call will not even be questioned above $2.50 per call.

They may look at it to see whether the amount of reimbursement.

There is a reasonable relationship to the cost incurred by the volunteer firefighter, but he may be a volunteer above that price.

And by the way, the labor departments mad a study, the average volunteer fire department call is 20 minutes.

Now, there was reference to collective bargaining.

This statute does nothing the collective bargaining.

Employee unions are free to bargain collectively for anything above these standards they wish.

The civil service processes states civil service protection remains in four states civil service processes to protect their worker remain enforced.

They are not ousted.

Now, we have answered a variety of other charges in our brief which I showed when I go though here and the various amicus briefs answer charges.

But I think what it boils down to is the appellant’s case rest upon misunderstanding of the statute, and alarmist rhetoric is not a constitutional crisis here.

There is not even a stiff reason at teapot.

It’s astounding to hear it argued I think in this stage of our constitutional history that federalism and state sovereignty depend upon the ability to give employees substandard wages and hours to give them less and the federal Government gives them, to give them less than private industry gives them, indeed often less than enough to keep them off the welfare rules, that cannot be the test of state sovereignty.

William H. Rehnquist:

Well presumably, though Congress, if it were to enact the entire local code for the states, which you say even you would draw back at in each case would be saying, surely states sovereignty doesn’t depend on denying the beneficent purpose of Congress had in mind with the statute, that the real complaint is that the states have lost the power to determine this matter for themselves, isn’t it rather than that they’ve lost the power to pay substandard wages?

Robert H. Bork:

The only power they have lost Mr. Justice Rehnquist is to determine to pay substandard wages.

They have not lost the power to pay more than that.

They have not lost the power to adjust in a variety of ways.

And I think the power to — as I have suggested perhaps too many times, the power to pay substandard wages must be less important to state sovereignty than the power to enforce your own social policy within your boarders.

The Commerce Clause allows the federal Government to override the ladder.

I cannot believe that the power to pay substandard wages is the place where we suddenly trench upon the value of federalism.

Audio Transcription for Oral Reargument – March 02, 1976 in National League of Cities v. Usery


Potter Stewart:

Well that’s a – it’s a nice rhetorical phrase substandard wages, but it means more than that, it means technically that every hour work over 40 hours a week is time and a half.

And maybe an employer wants to say, “Well, I want you to have a regular week of 50 hours because of a particular need of this municipality or this particular public service and not be bothered with computing overtime.

And that may or may not be substandard in the ordinary economic sense to worry, you maybe getting higher wages, but all these nonsense with the federal bureaucratic red tape when he is running his municipal Government.

Robert H. Bork:

Well, there is not much bureaucratic red tape and furthermore substandard obviously refers to a national standard set for private industry and for the federal Government.

Potter Stewart:

It’s s rhetorical phase that involves — it could many rather technical rules and regulations.

Robert H. Bork:

Well, it necessarily involves some technical rules and regulations.

I might say that when a locality has a good case that to have to do something and someway, as in the firefighter’s case, Congress is proved responsive and made an adjustment.

It would not be true to say that this statute will not require some public employers to change some ways of doing business or of governing if you want it to put it that way but it’s affecting interstate commerce, but that’s the purpose of this statute.

It may spread jobs —

Potter Stewart:

I think that was the point as I understood of my brother Rehnquist question, that’s the question here, whether or not the federal Government is impeded by the structure of the constitution from exerting the power to change the ways as the municipalities will and the states want to do their business with respect to their employees (Voice Overlap) in a substandard wages.

Robert H. Bork:

I guess I do two things.

I guess I say in the first place that the state and local Government workforce is expanding quite rapidly and is continuing to grow.

It is now I think about 14% of our national workforce and is going up.

And to say that that is an exempt from all of the protections, we extend to federal workers and to all private industry workers is to make a rather large statement that unless there were compelling constitutional reasons, I don’t think we ought to.

I think they are not compelling constitutional reasons because it escapes me, why state sovereignty is threatened by being required to pay a dime or two more an hour is threatened by being required to pay time and a half over 40 or over 60 hours or to hire additional workers is a massive intrusion upon states’ political and Governmental autonomy.

We have done all kinds of substantive laws to tell the states you may not have laws on this subject.

This seems to be a much less intrusive.

William H. Rehnquist:

Well, what if the statute that required all states and local Government to bargain collectively with their employees as in matter of wages and hours, you have exactly the same arguments available to you.

Wouldn’t you that this large segment of employee shouldn’t be exempt from standards that were imposed by private employers?

Would that raise any more difficult constitutional question?

Robert H. Bork:

If I would have exactly the same arguments available to me, I would think, and I don’t think it’s a difference of constitutional dimension that that would be a larger intrusion than this one.

This if you look at what is actually done, the degree of impact is really not that large.

It’s been vastly overstated here.

Every extension of the Fair Labor Standards Act has been met with these cries or takeover and destruction.

It’s something that hasn’t happen.

Well, I have addressed myself to the concerns of the Maryland dissent which I think are the real concerns in this case and I’ve shown I submit, I hope I have shown that this measure does not involve or imply the federal intrusion upon states sovereignty that that dissent feared.

And for that reason and because we permit easily other kinds of federal ousting of state policy which are far more intrusive, I suggest it would be illogical and arbitrary to draw the line at the commerce power here in this case.

And I therefore ask that the judgment of the District Court be affirmed.

Warren E. Burger:

Mr. Rhyne.

Charles S. Rhyne:

Mr. Chief Justice and may it please the Court.

Audio Transcription for Oral Reargument – March 02, 1976 in National League of Cities v. Usery


Charles S. Rhyne:

I take it that my distinguished adversary admits that there is such a thing as constitutional federalism that exist but he says unless an Act of Congress, if I heard him right, unless an Act of Congress really wipes out the ability of a state Government to be a viable Government, you don’t call it into play as a bar against legislation.

Now, he says that the states are not hurt here, that this isn’t enough of an intrusion.

But I call again to the Courts attention the $3.00-license fee was too much for Mr. Justice Holmes in Johnson versus Maryland when you’re taking about a matter of power.

We’re talking about a matter of governmental power.

We’re not talking so much about money but on money.

They say that our figures are exaggerated.

Well, the record proved just to the contrary, this man who gave us the $200 million estimate of cost on fire service to comply with his act as a greatest expert in the United States on this subject.

And there’s one other little thing distinguished Solicitor General keeps talking about confusion.

If there is anyone thing that is confused in his whole argument, it’s this.

He talks about working 60 hours or 84 hours.

Now, the plain truth is that of that 60 hours or that 56 hours in New Jersey, so much of it is what you call standby time.

In the record at page 321, it’s pointed out that when you’re on duty for 24 hours and then 24 hours, that you have — in that 24 hours, the first 24 hours, he has 16 hours of standby time.

So, these people are there but only the difference between 16 hours and 24 is work-related time.

The most popular jobs in the United States are these firemen’s job because they don’t have work related all the time.

Now the other thing is that these regulations that were put out on the 20th of December last year, they provide this, that if that firemen is New Jersey under that New Jersey statute which over on Page 414, 415 or appendix works 24 hours, you cannot under the federal — the new federal rule, you can’t deduct sleep and eat time.

And you see what that does immediately when he comes to the next 24 hours, he’s very quickly into overtime.

And we’re not talking about substandard wages here.

We’re talking about people who earn $20,000, $25,000, or $30,000 or more a year working overtime.

This idea, the most false idea that has been put forth is that substandard labor conditions exist in state and local Governments, they do not.

And you notice how clever it is — they start out by saying, we’re talking about 409,000, 314 of those were really covered in 1966; nothing has been done about them.

We only have 95 new people who we claim are getting a salary below the minimum wage.

And we tried to find out who they are, well it’s just a statistic that somehow rather, somebody has come up with down it to the Department of Labor, you can’t trace them down.

And I say they don’t exist and we’ve said that throughout.

There is no substandard labor conditions among states and cities.

They live with these.

They’re not going to starve them to death and justice in New Jersey, if they’re going to go to a new platoon system, if they’re going change the overall pay, these people in the New England town meeting or crosses country, they’ve vote on it.

After now, they have been able to vote on nothing.

The most important question was from Mr. Justice Brennan when he talked about the republican form of Government because the biggest part of that republican form of Government if ballot box control and Mr. Justice Brennan is gone if this act is upheld.

Now, my distinguished colleague, the governor of Utah, Governor Hampton, leaned over to me and he made a statement that I think I should pass onto you.

He said, “If they uphold this, there is no other stopping place.”

Audio Transcription for Oral Reargument – March 02, 1976 in National League of Cities v. Usery


Charles S. Rhyne:

From that complete swallowing up of state Government under the commerce clause and there is no logical place, just on and on.

You talked about the nice Labor Relations Act, well, those acts are all being held over here in committees on Congress that you act on this.

If you uphold this, frankly, cities are gone.

Their commercial enterprises and I just don’t believe that anyone can’t read the history of our nation when you come to a new claim of power, you have to go back to the sources of power.

And I mentioned it was made for the Solicitor General about is being so amenable.

It didn’t have any impact at all.

But I will remind the Court, I’ll remind the Court as I was reminded again by Governor Hampton that the impact of Tea Tax in Boston was minimal but the principal was more than the people could stand to have someone else taxing them, someone else running their local affairs and this is what the states and cities are fighting for here.

That’s exactly what they’re fighting for here.

Now this idea that this act has no payroll impact, it not only a false statement but that is not a point at all.

The point is who is going to determine that payroll impact and this is just the beginning, the camel’s nose under the tip — that’s certainly very, very true.

And look at the enormous impact or just this one ruling that a fireman who works 24 hours on the job, you can’t deduct his sleep and eat time.

But for every other person in the entire nation, you can.

So, there’s no misunderstanding on our part.

We know what this act says and he tries to justify it by saying, “Oh well, this might help welfare.

It might unemployment.”

And then he said, “In any event, we give $52 billion in revenue sharing,” well again putting Governor Hampton’s note to me, he said he is very presumptuous to imply that state sovereignty is for sale for $52 billion or any other term.

And after all, that money is the people money just being returned to them.

The idea that you can pay for it and take over the states is totally repugnant to our whole system of Government.

I believe that the concession both by the Solicitor General, by the Congress in it’s report that this would have virtually no impact on the cities, the concession by Senators Javits and Williams in their brief that it will have no impact, why do it?

Why take over?

And statement about California, that’s completely wrong.

Sleep and eat time is included in 84 hours to 72 hours or 60 hours, it has been up until now, and the only thing that they say, they say they’re not forcing states or cities do anything; they are.

This 24-hour no sleep-no eat thing is going to force them to hire an awful lot of new firemen and maybe some new police and as Mr. Jones pointed out, is a very, very costly things to hire and train all of these people.

After all the states and cities have gotten along pretty good up until now and again I would reiterate over and over again, over and over again, there are no substandard labor conditions, there is no justification for this act.

Anyway, anyhow, no matter how you approach it, and the one thing also that I think is not particularly happy thing to have represented to this Court that the governors and mayors who presented these figures that were included here of 200 million and a billion in cost are liars.

I don’t think they are.

I think they can make just as good estimates as a lot of other people and I think they made honest testament.

They are honest people, they are hardworking people and they live there with their own people.

And so, I think they gave their very best estimates and certainly this, well, for example, in the House Committee report, they estimate it, the first year impact of this act on the entire federal Government, do you know what it was?


Audio Transcription for Oral Reargument – March 02, 1976 in National League of Cities v. Usery


Charles S. Rhyne:

I saw the Post Master General sitting back here a few minutes ago and I saw a statement by him the other day that $68 million of his deficit is caused by this act.

I tried awfully hard to and I found a publication to that effect.

I tried awfully hard to get some other figures but all they tell me is this is awful, you can’t get it.

And the idea that the civil service of the Unites States and the civil service of the states is different, it’s just plain did wrong.

So, Mr. Hampton is right.

You got all of these statutes of states, he did been building up for 200 years, trying to be fair with these people and after all, if their not fair, they are there to tell them about it.

They live with them, day-in and day-out.

And so, I think that here where this act really obliterates the division or governmental power upon which are whole nation is founded.

Now is the time and Governor Hampton view.

And the view of the governors he represents is chairman of all of the mayors and other public officials, now is the time to call to put a stop to this, let’s call Government-Government and commerce-commerce and not try to turn just by a few words, whoever heard of the statute?

This one I’ve every seen where it calls commercial enterprises Government and over and over again defines and so write in the statute, they say our commercial enterprise is a city, public agency, well, that’s not true.

This idea of competition that was mentioned in connection with Wirtz, well the court below found there was no competition here.

They don’t like that.

The idea that somehow rather because Government might compete with each other, well that’s preposterous, the only competition I ever see is when they bid against each other for a city manager to improve their whole operations of Government.

So, I would just correct one other things, I have a letter here from the governor of Colorado instructing his Attorney General to withdraw his name from that brief that was just called your attention.

So, in the idea of the Solicitor General said all you got to do is comply with 7 (k) and then you have no problem.

Well if you comply with 7 (k), you have to comply with this rule 24-hours on, you don’t deduct sleep and eat.

So, I come back, I started out by saying that we don’t have substandard conditions here.

And what do they come up with this figure of 95,000 faceless wonders that they got from nowhere and there’s no evidence whatever, not once until that those 95,000 exist and without that, the substandard idea is gone forever.

Cities are not here to fighting to maintain substandard labor conditions, states are not here fighting to maintain substandard living conditions, these are their people.

They live with them and we feel that they should continue as they have for 200 years and to tear up this system of shared governmental powers that has worked so well and this bicentennial year would be a monstrosity indeed.

I end by saying Government is not commerce, and I ask the Court to recognize that ‘Government is Government and commerce is commerce’ and that this decision below should be reversed because even there, the court doubted very much that this Court would want to stick with some of the broad language that was contained in Wirtz but they felt District Court judges shouldn’t overrule this Court.

Thank you.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.