National League of Cities v. Usery – Oral Reargument – March 02, 1976

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 Argument – April 16, 1975 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 will hear arguments next in National League of Cities against Usery, and California against Usery.

Governor Rampton.

Calvin L. Rampton:

Mr. Chief Justice and may it please the Court.

I am participating in the argument, re-argument of this case today, even though I did not participate in the first argument.

Not in the hope that I can add any legal expertise to our Chief Council Mr. Rhyne but because my fellow Governors of the 50 States desire that I express their deep concern for this Court, in regard to the Fair Labor Standard Act Amendments of 1974, concern not only for the immediate effect that will have on the operation of state and local government, but also on the fact that we feel this is another step forward toward wiping out state sovereignty and perhaps a near retrievable step.

In this case, there appears to be a great deal of argument of fact based upon no evidence, because of course the case though it no evidence presented below, and yet there have been assertions made by brief on both sides as to the effect of the Act.

The Solicitor General asserts that as a basis for the need for Congress to extend the provision to the Fair Labor Act to state and local government, that there were some 95,000 employees in the United States, state and local government that were being payed less than the minimum wage.

The same token I will say I doubt very much that that is so, I have done survey in my own state, and there are none.

Also, the appellants have made certain allegations regarding the cost of the application of these rules to state and local government.

Here again, I doubt if we were in a Trial Court that the evidence would stand out.

But this much I think must be true and it appears to me that the Solicitor General is in sort of in a dilemma’ here.

On the one hand, he alleges that there is a great problem to cure the 95,000 people that are below minimum wage and on the other hand, that he is not going to put a burden on state and local government to cure it.

As whatever the problem is, it is a problem that has got to be cured by money, and the cost of the cure is going to be commensurate with the size of the problem.

And if it is a big problem, as he attempts to assert as indeed he must, if he is to prevail here, if there is a big problem then the money required from state and local government committed is indeed going to put a burden on the budgets of those units of Government.

Most of the states provide for over time for their employees up to a certain level, generally above a given salary level or a given salary classification in the pay scale and provides for compensatory time-off.

However, in my opinion it would not be difficult in regard to apportion of state government to change to comply with these rules, to pay the time and half or overtime, because you could then do as many Governors have said, “Alright we will do this but from now on there will be no overtime.”

Over in regard to a certain classification of employees, those engaged in public safety, there is no way that you can conform to an eight-hour day or a forty-hour week.

And if they are to perform the functions, which is their duty to perform, even though the Act and the regulations under the Act, make some modification to the requirements to fireman and policeman, they cannot and should not be met.

Congress has not attempted to bring the Armed Services, that is the military personnel except for civilian employees under the provisions of these acts and yet there is not a fire department, a police department, or a highway patrol in this country that does not have to operate fairly well under military rules, and where there is an emergency in the forty-hour week or the fifty-seven hour week, rings the bell on you, but they cannot quit and go home, do the job.

So it is not within the power of the state governments to comply in full and avoid the impact of these new orders.

The forty-hour week will, in my opinion, bear much more heavily on cities and counties than it will on state governments.

But all of the Governors feel a responsibility to the subsidiary units of governments within their states because they are creatures of the state legislature; the legislature has got to give them the power and authority to render the services that they are charged with rendering.

So as a Governor, I feel equally responsible for units of local government and their budgets and their ability to render the services I do for the state government itself.

In most states and in most larger cities, the supervision of employee-relationship is under a merit system council.

By this provision, these Amendments, the merit system council for state and local government would be first, the Department of Labor and secondly, Mr. Chief Justice, as you are mentioning this morning the 425 Federal Courts in this country.

Already these Courts are overloaded, and new judges are necessary, and here is a knack which would throw a new burden on them, a much greater burden than was thrown on them by Wirtz.

Because in the case of Wirtz, we were able to — or the cities and counties and the states were able to adjust reasonably well so that most of the cases that had gone into a Federal Courts, pursuant to the Wirtz case, were violations that occurred while Wirtz was pending.

But in this case, under the 1974 Amendments as I mentioned a few minutes ago, because you extend so much further and because you cannot conceivably comply because of emergency situations, the amount of litigation will be truly great.

The local merit system councils have been able through their acquaintanceship with local problems to keep labor disturbances within the states and cities and counties to a minimum.

And there is no danger here, contrary to what the Congress found that strikes, which might be prevented by payment of the minimum wage, are going to place a burden on interstate commerce.

Calvin L. Rampton:

However, the greatest fear I believe that I and my colleagues have, regarding these 1974 Amendments–

Byron R. White:

Do you happen to know Governor, do most of the state have laws prohibiting strikes by public employees?

Calvin L. Rampton:

There are very few that permit them, many are silent on them, some have them, I could get a schedule of that and file it as a late brief but–

Byron R. White:

Do you happen to read the schedule?

Calvin L. Rampton:

But in those states which do not specifically permit strikes by public employees, the Governors have taken the same position that was taken in 1924 by Governor Coolidge of Massachusetts, that you cannot strike against the public welfare.

We believe that this case takes us a great deal further than Wirtz does, while I do not agree with Wirtz, I feel it is clearly distinguishable from this case.

In the Wirtz case, you can base the jurisdiction solely on the competition theory because the activities of Government which were there covered by the early Amendments, all can conceivably be said to be in direct competition with firms in interstate commerce, not so under the ’74 Amendments.

You can uphold the ’74 Amendments and say, that the activities there covered are under the Interstate Commerce Act, only by the application of the enterprise theory.

I know you did discuss the enterprise theory in Wirtz and cite that that as one basis that the holding in Wirtz, but it is not necessary in the holding in Wirtz and that could be changed without overturning Wirtz.

But if the enterprise theory actually is to apply to states and local governments and go to its logical conclusion, then I think you have destroyed the sovereignty of states–

Byron R. White:

It is your position that just as a matter of commerce power the federal government cannot reach these activities of the states, or is it that of course, it is within the commerce power but the commerce power is limited by some other considerations–

Calvin L. Rampton:

The commerce power is limited, it is my position, Mr. Justice White, that the attempt to apply the enterprise theory to local and state governments, is always applied to private concerns, but to attempt to apply it to local and state governments which would then bring under the Commerce Clause every single act that local and state government might make would effectively wipe-out the sovereignty of states.

Byron R. White:

That is a little bit different point, it is a sense of, there is some limitations and consideration that federalism put on the reach of the commerce power.

Calvin L. Rampton:

Yes, certainly, I would have said that that is true.

Byron R. White:

Rather than if some private industry was performing — let us assume the states decided to form out its police job and have some independent contractors performing.

Would you suggest that the power would not reach it?

Calvin L. Rampton:

I would suggest that no state would do that, Mr. Justice.

I think the difference is, to use the words of Chief Justice Burger when we argued this the last time, the things reached by Wirtz are activities that a state may do or may not do, I guess another way of saying these things that they do in their proprietary capacity.

The things that are now reached under the 1974 Amendments are things that they must do if they are going to continue with the state, if they are going to continue to exercise the state police power, and therefore not only in terms of the people covered but in terms of the principle a giant step beyond Wirtz.

And from that step I can see no logical stopping point.

Right now there is pending before the Congress, bills that would extend to all provisions for the National Labor Relations Act to state, including the right requirements for negotiation, the requirement that locally officials — locally elected officials submit to binding arbitration and giving employees the right strike and that was build or held up there only because of dependency of this case.

Again, I repeat that I and my fellow Governors are concerned not only with the immediate effects of the 1974 Amendments or with the fact that it strikes down the last bar that prevents the intrusion of Congress on the power of the states.

Warren E. Burger:

Thank you, Governor. Mr. Rhyne.

Charles S. Rhyne:

Mr. Chief Justice and may it please the Court.

In this case, I will argue that the 1974 Amendments to the Fair Labor Standard Act as they apply to states and cities and counties, which they do encompass all of their employees with minor exemptions are unconstitutional on two basis.

Number one, I am going to argue that the nexus to commerce is so insubstantial as not to warrant the validity of this Act under the commerce power.

But, Mr. Justice White, I would certainly, and with great vigor, urge that this Court’s decision in United States versus Fry, which I do not think touched this case at all, held that in any case where a federal statute impairs the ability of a state or city or county to function in a sovereign capacity, it comes up against constitutional federalism and is invalid.

First of all, let me address–

William H. Rehnquist:

Mr. Rhyne–

Charles S. Rhyne:

Yes, Mr. Justice Rehnquist.

William H. Rehnquist:

Sometime during your argument, will you address yourself to the question of whether the states are necessarily in the same position as the counties and the cities here.

Because as I see it there are two lines of authority, a county or a city acting is state action for purposes of the Fourteenth Amendment, but a county is not a state for purposes of the Eleventh Amendment, so I can conceive of there being some distinction made even if your argument were accepted.

Charles S. Rhyne:

Well, Your Honor, I would like to answer the question right now in this way.

Of course cities and counties are creatures of the state, they take all of their powers from the state, and it is true that one county may perform 50 functions for its cities, and one city like Chicago may perform 5,000 functions because of their size, and that the state may perform, say a 1,000 different functions for the overall of the citizens.

So, with respect to the Eleventh Amendment, it would be my contention that in the context of this Act, that the states and the cities and the counties are one.

William H. Rehnquist:

But if you are relying on the Eleventh Amendment, I think the law is rather clearly against you, because as Justice Marshal’s opinion in Moore against Alameda County just two or three years ago, reaffirmed the old holding of this Court that a county was not a state for purpose of the Eleventh Amendment.

Charles S. Rhyne:

Well, I say, I am not addressing myself to the Eleventh Amendment in the context of that particular action that was addressed there, I am talking about governmental functions that the county performs for the state, which I think are entirely different basis from the functions that were involved there.

But addressing myself to the nexus to commerce, let us look at what the Congress thought was the nexus to commerce.

First of all they said there was this famous 95,000 state, local and city employees who received a substandard wage.

From this time I have been in this litigation until now I have tried to find that 95,000 and still trying to find them and I say that even if they exist, where and who are they employed by, what county, what city, what state, they all deny that they have anyone who is paid less than the minimum wage.

But 95,000 out of 11,400,000 is a mighty small number, and so I say it is insignificant in the overall of the picture so that the substandard wage argument is no nexus to commerce as far as I am concerned.

Where did that 95,000 originate, Mr. Rhyne.

Charles S. Rhyne:

It originated evidently in some study done by the Labor Department where they made some kind of a survey of the nation, and they put out these surveys every month.

The latest one, for example is very interesting in connection with this case.

for example, it shows that there are only 56,000,000 people for example, covered by the Fair Labor Standards Act, as compared to Fry.

And when it comes to Fry, I address myself to that because there are 94,000,000 people, 94,000,000 workers and there are 56 of those covered by this Act.

And when I mean covered that means a record like they have on Governor Rampton, not a regulation like they have on Fireman.

But returning on my argument, which I think is very important, that there is not substantial evidence here of a nexus to commerce sufficient on which defined a rationale relation upon which to base this Act.

The second, besides substandard wages, is labor strike.

Well let us look at labor strike, they cited, they do not say where it is in the Solicitor General’s brief so again we have to look at the statistics in his client’s own publication.

The latest in 1973 says that the three stoppages by public school teachers caused one-half of the 2.3 million days of government idleness in 1973.

In 1973, employees of educational institutions, or institutions both teachers and support personnel were on strike more frequently than any category of government employees.

Now contrast that, contrast that with the very careful approach of Mr. Justice Harlan in the Wirtz case, where he specifically, specifically linked strikes and work stoppages involving employees of schools and hospitals of things that were covered there, see here the problem is you cover everybody, everybody.

And but here Mr. Justice Harlan was quite careful and I am reading from 392 US 195, and he says strikes and work stoppages involving employees of schools and hospitals, events which unfortunately are not infrequent, obviously interrupt and burden the flow of goods across state lines.

It is therefore clear that a rationale basis exists for congressional prescribing minimum wage law.

Now, I say there is no finding here that there was a strike by anyone of these 95,000 ghosted, impeded, or burdened interstate commerce in any way.

You are talking about school teachers, and they are exempt?

Now, so it goes then the appellee to purchasers and there he is talking about the minimal effect up to now, he says all this will have any effect on state and cities, 1% or less something like that.

He balloons up and takes all the purchases by all of government, 134 billion dollars.

He says that effects interstate commerce but he does not show in any way, as you have found in these other cases, as Mr. Justice Harlan found in Wirtz, that some of these 95,000 people who were paid too little were striking and burdening those purchases in any way in interstate commerce.

Charles S. Rhyne:

So, I say the evidence before Congress was nonexistent, nonexistent.

And then he goes to unfair competition, what does he have for evidence? He has two ads in the New York Times, one New York asks for business to come there because they have low taxes, the other one Massachusetts asks business to come there because they have low taxes.

And from that, he draws the conclusion that because they have low taxes they pay sub-minimal wages.

Well, baloney, I just used such a word in this obvious body but it is the truth, and so, unfair competition, the idea of a state engaging in unfair competition.

Now you did have competition in Wirtz and it was so found by Mr. Justice Harlan, but the thing that– and then the next thing he does is talks about spreading employment, well this Court does not say this, one of you once said nine-months.

You realize what is going on the world, if there is anything that is going on in the world it is that people in the public sector are losing their jobs for the thousands every day.

And so here, where you increase the pay of a few, you caused the loss of jobs of millions, that is exactly what this Act does, and it refers to a less welfare.

Well, I cannot in my wildest imagination link that up in anyway.

So I come to the conclusion, may it please the Court, that the Act is bottomed on a false bottom insofar as its nexus to commerce is concerned, and I therefore urge that the Act be held unconstitutional on that bill alone, but I go again–

–the Perez case, Mr. Rhyne?

Charles S. Rhyne:

Your Honor?

In 402 US, case of Perez, which it is not your field of the law.

In that case the Court, upheld the constitutional validity under the Commerce Clause of a federal law that made local loan sharking a federal criminal offense.

Charles S. Rhyne:

Yes.

And in which the course of its opinion the Court dealt with the general power of Congress under the Commerce Clause, are you familiar with that case?

Charles S. Rhyne:

Yes, Your Honor.

I am familiar with that case and, Your Honor, they had a lot more evidence there I mean almost none, but here it is so insubstantial.

And when you look at the entire nation, I say this, I drew this from Perez, and I drew it from United States versus Bass, I think acquitted by Mr. Justice Marshall, the idea that in each case you have required the people before you who assert you that the interstate commerce power exists to show how.

And here, when you encompass the whole of the United States of America, the whole of Government, not only state and local government but all federal government, you cannot come to grips with it and I say they have not shown any nexus to commerce, such as has been required by this Court over and over again.

Now let me go to Fry, because I think Fry disposes this case.

I think that in Fry when this Court said, number one, words had a small affect or intrusion on government and Fry had even less.

And then in the footnote, you resurrected from the dead, the Tenth Amendment, and said that if the functions of states and cities are impaired, are there policies interfered with so as to impair them that that would violate constitutional federalism.

Well, look at what we have here, 85% of the budget of every city in this nation is personnel, 75% of the budget of every state is personnel.

Now, what you are doing in this legislation is imposing down upon an existing civil service, that obviously, I think clearly is satisfying an awful lot of people because there was a trial below.

And the testimony in that trial was that if there were long lines of people who wanted to get police jobs and long lines of people who wanted to get fireman’s job because of the fringe benefits that go with them, these are among the most desirable of all job, so was the testimony there.

And states and cities do pay very-very high, they think wages, and I call attention to the fact that a man who earns $13,000 in Havre Montana is a pretty high-paid guy and his $13,000 is worth about $90,000 here.

Byron R. White:

Well, Mr. Rhyne, is it your position that there are no state employees that are actually engaged in commerce?

Charles S. Rhyne:

No Sir, that is not my position.

Byron R. White:

Well, what about those employees.

Charles S. Rhyne:

My position is that if there are, they should pick them out specifically and legislate as they did in Wirtz, as they did in Wirtz.

Byron R. White:

You would not conceive there would be any problem about that would suspect to the federal power, the constitutionality of law like that.

Charles S. Rhyne:

No, no, I would not after reading Mr. Justice Rehnquist’s dissent in Fry, in which he approved California — United States versus California I would say there is no problem.

The big problem here Mr. Justice White, is everybody is covered.

The local judge and his clerk, and the one point that has been made most to me, I would say and I have a lot of advice, is that —

Byron R. White:

You did, but you just got some orders.

Charles S. Rhyne:

Yes I did, and it is this, and it is a good point Mr. Justice White, and I got it from a good source.

Byron R. White:

And I am going to here it right now.

Charles S. Rhyne:

You are going to here it right now.

It is this, that the action of a city or a county or state in fixing their budget, which is their highest policy thing, is an intrastate act, it is an intrastate act.

And so you have to show all of this nexus to commerce in order to cover that act, and here Congress in its findings has totally failed to do that.

Byron R. White:

Do you suggest to me some test that would be satisfactory to you to sort out one of the groups — the employees of the state that the Fair Labor Standards Act may properly reach in those that it may not reach?

Charles S. Rhyne:

I would say the — what you are doing, Mr. Justice White, to me who represents only states and cities and counties as you well know is asking me to tell some of my clients what is going to happen to some of their people.

Alright, so I will do it, I would that if they run a railroad–

Byron R. White:

I am just trying to find out how far your position goes.

Charles S. Rhyne:

Alright, I would say if there–

Warren E. Burger:

–Dichotomy of proprietary as distinguished from purely sovereign governmental functions?

Charles S. Rhyne:

Your Honor, I would, accept, I would say having lived my whole life in trying to define proprietary and governmental, I have some difficulty with it.

But I would say the railroad, if they run a railroad in interstate commerce, Mr. Justice White, would you accept that as an illustration of employees that–

Byron R. White:

–illustrations, but I do not want to pursue it, I thought maybe you had some formulation in mind that–

Charles S. Rhyne:

it is very, very difficult, but I could certainly say to you that a policeman when he gives you a ticket or when a fireman when he puts out a fire–

Whatever that formulation was, would Wirtz fall within it, or without it?

Charles S. Rhyne:

I would say, Wirtz would fall within it, I think that one of the things that I would say to you about Wirtz is that since I argued here, the first time I went back and read every word of the record, every word.

And one of the things that impressed me there was that the employees there of hospitals and schools according to that record with the lowest paid employees in the whole United States of America, these cafeteria people were getting 85 cents an hour, for example.

And so–

You think in those situations the Fair Labors Standards Act application should be accepted in terms of strictly on the constitutional basis.

Charles S. Rhyne:

But I think they should be picked out especially and you should not do it on a mid-act’s approach.

Now I think what they have done here is the mid- act”s approach–

Thurgood Marshall:

–would you?

State Power Company?

You would not have any trouble with that do you?

Charles S. Rhyne:

State Power Company, no I would not have much trouble with that at all.

Thurgood Marshall:

I think plays lottery.

Charles S. Rhyne:

That falls in the category of the railroad, and state lottery, Your Honor, — Attorney General of Maryland is back here somewhere, he ought to answer that better than I.

But my point is that when you take the whole of Government, you are talking about, Mr. Justice White, I know because I have just — because you people have just forced me to go through it that the city of Richmond renders a 161 separate service and they are broken down into over a thousand, alright.

Are you saying these Amendments are invalid on their face or they are invalid — they are in part valid and in part invalid.

Charles S. Rhyne:

I am saying that they are so broad that they are invalid on their face completely.

That if they want to get at a specific piece of commerce that a city or state are doing, let them adopt a special law for your power company–

–With the doctrine of overbreadth in the Commerce Clause there is, there are such as there is in the first Amendment?

Charles S. Rhyne:

Well —

Or you can say it is just inseparable?

I mean you can say it in terms of separability the statue just is not inseparable.

Charles S. Rhyne:

I find it very difficult, Mr. Justice Rehnquist and Mr. Justice White, to separate out the different functions of a city.

Now look, we have 50 states, 18,000 cities, and 3,000 counties, every one of them does something different.

Some of them have public power and I think San Francisco voted 18 times not to take over the private power company.

The people vote and that is another thing about this whole thing, the Solicitor General says it does not interfere with policy.

Well, what is policy except the spending of money and the people are voting down bond issues wholesale now.

So here the Act is so broad, it covers the all of state and these exemptions made are by grace only.

So, I would really urge that the whole Act is invalid under constitutional federalism.

If the Congress wants to come back and pick out this Act and that Act which it says is commerce and should be regulated because it is in competition with commerce.

Well let them point it out as they did in Wirtz, as they did in Wirtz, and as Mr. Justice Harlan pointed out.

And one of the things that he did point out to in that famous footnote 27 was, that never would he stand for a trivial, a trivial impact on interstate commerce as a basis for regulation of interstate commerce.

Mr. Rhyne, May I ask you two questions.

Charles S. Rhyne:

Yes, Your Honor.

Supposing that the whole matter went back to Congress and Congress held some hearings and found that there were some police strikes and there really were 95,000 people who were underpaid according to their standards, and then they reenacted the statute.

Would we have a different constitutional issue than we have today?

Charles S. Rhyne:

I think you would have a different constitutional factual situation with respect to who are the 95,000, what were they doing?

Were they doing as the Chief Justice points out a governmental function?

Or were they engaged in commerce (Inaudible)

I think that suppose they were the police and fire people, supposing there are 95,000 policeman and they have engaged in strikes and so forth, would that be a different constitutional question than we have?

Charles S. Rhyne:

I think that anytime that you are dealing with policeman, Your Honor, you are dealing with one of the two most fundamental services that government renders, and I do not think there that the federal government has any business interfering.

That, in my analysis you really not relying on the absence of evidence before Congress but rather on the fact that this is an area which Congress may not legislate in.

Charles S. Rhyne:

I am really relying on both, Mr. Justice Stevens.

As I said at the outset, I wanted to point out to you that there was no evidence, and secondly that I was relying on constitutional federalism which in my judgment invalidates this Act on its face.

The second question, I did not quite understand, I am not sure you have finished your development to the point.

What is your real distinction on the Fry case?

Charles S. Rhyne:

I do not distinguish, well, in the Fry case you had an emergency and a compelling national interest, and it covered the whole of the nation.

But the Court did rely on the commerce power rather than your power.

Charles S. Rhyne:

That is right, and I think there, there was a primary national concern that would override under the balancing act that this Court should do.

The state interest in tying to pay higher wages that would interfere with a national policy that had to be affected because of the emergency.

Now, here you have neither the emergency nor the completing national interest, if anything you have a compelling national interest, the other way to uphold the elements of federalism, because it is those elements of federalism that has made this nation what it is today.

Two-weeks ago, I was up in Philadelphia, and I persuaded a friendly policeman to allow me in the Old City Hall where Chisholm v. Georgia and other great cases were argued.

And I watched a film about the cases and about all the long time that you gave people in those days to argue those cases in the form of days of our country, and I went over to Independence hall, and again with the federalist in my hand thought a lot about the beginnings of this country.

And I must say if there is any one thing that is important, it is that diversity, that federalism has allowed.

I have referred to the facts that you have got 50 states and everyone of them does most things different.

Get back to modern times, would you say that Fry did not help either side?

Charles S. Rhyne:

Getting back to Fry?

Yes.

Charles S. Rhyne:

Yes, and I would say that it did not help either side.

It did not touch either one, that would be my interpretation of it.

But I would say it helped me in my argument because it resurrected Tenth Amendment and recognized the principle of federalism.

And so I think that, I would have to say that it did help our side, excuse Mr. Justice White.

Let me ask about Fry, is there a distinction between that case and this one?

In that there the Congress said to the state you must not, whereas here they are saying to the states, you must.

Charles S. Rhyne:

That is a distinction–

Not a distinction?

Charles S. Rhyne:

That is a distinction, there have been good many cases where and you have got them coming to you now under the Environment Protection Act.

There are good many cases where this Court has held that federal government cannot force states to spend money to carry out a federal purpose, so I think that is a distinction, which I had not mentioned.

(Inaudible)

Charles S. Rhyne:

I think it is, I think it is.

Here, look what they are doing.

Charles S. Rhyne:

They are ordering states and counties and cities to alter their budgets to pay overtime.

And let me just illustrate what this is all about in a way by talking for just a moment about California.

California, I am representing them also and they want to point it out to you and I do point out to you, that their firefighting cost, under this Act will go up from 64 Millions and 94 Million.

And this is not because they treat their employees badly, but they treat them well.

And they also point out that it takes two years for them to train anybody that they are going to cut down on the overtime of the existing people, it is going to take them two years and cost them 27 Million dollars.

In California, they spend more money on fire fighting as a state than any other state.

And this is an enormous change over, but that big change over is this.

Up until now, most fireman and policeman paid on a bi-monthly basis or yearly basis.

Under these regulations putout with the sector labor, every thing is on a 28-day basis, why heaven only knows?

And they have got all kinds of regulations.

If the man is interrupted in the middle of his 30-minute lunch period, you have to got to give him so much more time.

If he is sleeping and call about, you have got to keep all kinds of records.

Just the record keeping alone in connection with fireman is going to be an enormous thing and shows the kind of minute intrusion that goes on here.

And those regulations which are in the record, in a particular provision that I called your attention to is on page 600 because it shocks me every time I read it.

It says that the Director of the Wage and Hour division is going to fixed the work week.

And he is going to fix the work condition.

He is going to fixed everything with respect to police and fire.

Now, I just do not think that police and fire departments has done pretty well up to now, ought to b e run from Washington, and if they are run from Washington, and this Act is put into effect, you are going to get, as we point out here, overwhelmingly less service at a higher cost and it is going to mean that every home order in this nation will have to pay higher fire rates, because your fire rates depend on the amount of fire service you have.

The ramifications of this thing are enormous and Congress did not consider those any more than this thing that was referred to about the courts.

And I will finish with that.

Warren E. Burger:

Mr. Rhyne, about congress enacting legislation without understanding all of its consequences, that does not bring a Constitutional question, does it?

Charles S. Rhyne:

I would just still Your Honor, agreeing with you saying one thing about Section 16 B, Class Actions.

Under this act, you have a right to bring action on behalf of all those similarly situated, which means, and then you will get cost, you get attorneys fees, you get liquidated damages, if it is liquidated damages and you are entitled to a time-and-a-half which of course is triple time and you get the help of the Labor Department in carrying out your litigation.

Now, I was handed last night, a reply brief by them which I say this is not so, unfortunately for them, the two cases they cite do not sustain, they claim, you do not have Class Actions although it allows the filing of the suits on behalf of all those similarly situated, but because they say it requires the consent of all the employees.

And one of these decisions.

It is a Fifth Circuit decisions that they cite for you, it says it is ‘up-in, up-out.’

It is not a 23 Rule Class Action, but it is still a Class Action.

And my major point Your Honor is that because of all the benefits that flow from 16B, all this litigation from now on is going to be in the Federal Court and not in the State Courts and as we pointed out time and time again, and as the city attorneys point out in their briefs, there is no question, but what one-half of all their litigation involves personal matter, so, talking about a flood of litigation this would create.

So, we urge and we urge most strenuously, that this Act is invalid because they do not, Congress and its findings, does not show any real nexus to commerce.

And above all, that under the Constitutional Federalism, it is invalid under the rules laid out in Fry, which Mr. Justice Marshall, I think does help us, because I do think the Tenth Amendment now has meaning and even be on the Tenth Amendment, because Constitutional Federalism existed before the Tenth Amendment.

Charles S. Rhyne:

I insist that when you have such a mammoth, massive takeover of state and local government affairs as this Act provides here.

For example, in their reply brief they say that we complain, that they might come in and have inspections, and each inspection only takes 16 hours.

Well now, imagine how many inspections New York City with the 300 and something thousand employees — one inspection each or one for the whole city?

Your Honor, I urge again.

This Act has not been thought through.

The regulations that have promulgated, they fit cities like a square pig in a round hole, they are unreasonable, they are invalid, they were issued six days as, Your Honor, will recall, before Christmas and could not be even read by cities or received by them much less considered.

So we urge that this Act be held invalid for the two reasons that I have urged now.

Mr. Rhyne, I think, not only would you think that there might be some activities of states and cities that were within the reach of the commerce power and some that are not, but you would also think that in terms of whether an exercise of the commerce power might impair the functions of the state, there might be some exercises of power and Fair Labor Standard Acts that might threaten of local government and some that might not?

Charles S. Rhyne:

That is true.

But here you have the mid-acts approach so you do not know what they are talking about.

You have to fight them out one-by-one in the courts.

Do you think that the Maryland against Wirtz is within the–…

Charles S. Rhyne:

I would say on Maryland and Wirtz, on the evidence there of the substandard wages and the competition with the private business, it is within the area that Congress can reach.

Before when I was here, I asked you to set Maryland versus Wirtz aside and I think that while it does call some confusion in the overall figure –, because of those two facts I would change, I say.

Warren E. Burger:

Mr. General.

Robert H. Bork:

Mr. Chief Justice.

May it please the Court.

I am going to discuss a case which initially at least will not seem to have very much resemblance to the case Mr. Rhyne just discussed, because my version of what that act does is considerably different than appellants.

The central issue here of course is the effect of the 74 Amendments to the Fair Labor Standards act upon Federalism.

Mr. Rhyne has described a massive and disastrous impact upon cities and states.

I think, I can state and show that it will be very little impact, certainly, no impact that threatens the value of Federalism.

The issue between this can be stated as whether or not, and I think it can be stated the popularity of Maryland against Wirtz with the appellants varies from time to time, but I think the issue is still whether or not Maryland against Wirtz should be overruled and the dissent there become a new law.

And I would suggest in the course of my argument that such a decision overturning Maryland against Wirtz, would do much more than that.

It would undercut the rationale of almost all of the major Commerce Clause decisions of this court, including decisions in the field of the Agricultural Statutes, Labor Law, Civil Rights Law and so forth.

Byron R. White:

It might depend upon the overrule though.

Robert H. Bork:

It might Mr. Justice White, but I am going to suggest that there are no adequate grounds for overruling except the rationale that would indeed have that kind of a Constitutional Counterrevolution.

The governments position rest upon three prepositions.

But first, let us put aside the question of Federalism for a moment and just deal with the jurisdiction or the power of the coverage of the Commerce Clause.

And I think, as to the coverage of the Commerce Clause, as to its application here, I would think that that much, not the Federalism issue, but that much would have been settled certainly decisively by Fry against the United States and certainly a lot of cases before that.

Now my brother Rhyne would suggest that no consideration was given to this indeed, Congress debated, both the Center of the House debated and reports concluded discussions of the facts of interstate commerce involved here and the theories by which Commerce Clause applied.

Robert H. Bork:

I do not want to spend much time on this, but I feel I must spend some time on it because it has been attacked so strongly today.

There is no doubt that interstate commerce is in play.

When we have state and local governments which in 1971 purchased 135 Billion dollars worth of goods and services and that was 12% of our gross National Product.

Nor, I think, there can be no any doubt of the significance of this statute to that commerce, where it is realized that this Amendment extends the statute to 3.4 million employees, not just minimum wage, it also has overtime provisions, it also has Age Discriminations Provisions and so forth.

And that makes with the 1966 Amendment upheld in Maryland against Wirtz, a total of 6.3 million employees were covered by the statute.

Now, there are variety of reasons why extending Wages and Hour law to these employees as rationally related to commerce.

Congress made the findings in our main brief in at pages 23 and 24.

We discussed — the Senate report discussion of this is set out.

Of course it is not up to the government here to prove again the factual findings that Congress made in the standard of review for Congress’ factual finding of that nature of course is set forth in the Heart of Atlanta Motel and Katzenbach against McClung.

And I think, they easily withstand that kind of review.

The theories upon which congress attacks this well were, first, that substandard working conditions are likely to lead to labor disputes, and hence, the strikes, that interrupt the flow of goods and services in the state commerce.

That was, in the original finding of the Act, the original findings of the 1938 Act, the theory was adopted to support the 1966 Amendments in Maryland against Wirtz was advanced in debate here for the 1974 Amendments.

And this labor strike theory of course was accepted by this court as long ago as Labor Board against Jones and Laughlin, upholding the National Labor Relations Act.

Now, it should be said that Maryland against Wirtz covered mostly custodial workers, orderlies and nurses aides, and it is hard to think that any of the employees covered by the 1974 Amendments have a more tenuous nexus to interstate commerce than those employees.

We have dealt with in Maryland against Wirtz.

Second, I mentioned the competition between governments tends to or can spread substandard working conditions as governmental units compete with lower taxes and lower wage rates to make up for that.

I know for again that is a rational relationship, Congress can act on that ground.

I am not obliged to upheld the trial and prove that Congress’ factual finding were correct.

Thirdly, the increase of purchasing power through higher wages and the spread or work tends to stimulate interstate commerce.

Now, that is the theory of course, very much like the theory in which the 1964 Civil Rights Act was upheld in Katzenbach against McClung, where it was pointed out that refusal of certain restaurants to serve Blacks on all these food purchases which adversely effects in the state commerce.

So that too has established constitutional mode applying the Commerce Clause.

And finally, it is quite clear, as the senate report states, that raising the minimum wage rate at a level which will at least help to assure the worker an income at or above the poverty level is essential to the reduction of the welfare rules and the overall reform of the welfares on the United States and certainly taking all people off welfare rules and giving them productive jobs is a means of affecting interstate commerce.

Warren E. Burger:

The Welfare rules, if he is a fireman or policeman and you pay him overtime, is he only fireman or policeman on the welfare rules?

Robert H. Bork:

A fireman and police may not be in the welfare rules but there are people on the welfare rules, I believe Mr. Chief Justice, because the kind of wage they can get in certain kinds of jobs is so low, they are well below the poverty level.

Warren E. Burger:

I hear what you are saying but I do not understand it.

Robert H. Bork:

Well, there are people, I suppose who will not take jobs at a very substandard wage, who would take it if a job if price was raised.

Warren E. Burger:

In Welfare instead of —

Robert H. Bork:

There maybe such people, there maybe people who find that they can support themselves on these wages.

Warren E. Burger:

They can on welfare?

Robert H. Bork:

In some cases, yes, I think.

Warren E. Burger:

We must have some hard evidence on that, I hardly, I think so defies reality that one could hardly make any judgment based on that kind of —

Robert H. Bork:

Well, let me try this Mr. Chief Justice.

One of the purposes of the overtime provisions, of course as congress stated it.

It is exclusively stated in the senate report I refer to is to spread work to get some employers for some kinds of jobs, not to pay overtime, but instead to hire additional worker at straight time.

Now that would take people off the welfare rules.

That of course was one of the theories of the original Fair Labor Standards Act upheld in the Darby Case, and it is the theory that is carried over to these 1974 Amendments.

But in any event, I think —

Warren E. Burger:

I think that you are advancing the arguments only for the purpose of sustaining the power of Congress, not as an argument of persuasion to us.

Robert H. Bork:

No, I do not think this court has to be persuaded that this Act was wise social policy or was unwise social policy.

I merely, as you say Mr. Chief Justice, raising that as showing the jurisdiction of Congress in this area before coming to the Federalism point, I would really come to that, I am just talking about the straightforward application of the Commerce Clause as it would be applied in any case, except for the claim that you cannot do it when a state or local government is involved.

Warren E. Burger:

Congress — is that affirmatively recited in the legislative history?

Robert H. Bork:

I believe it is, the spreading, yes it is affirmatively recited in our brief at page 24, the main brief.

The Senate report talks about raising the minimum wage level to assure the workers an income above the poverty level and to reduce the welfare rules.

And of course, the purpose of spreading work by encouraging the hiring of additional at straight time is in the legislative history extensively.

But I would have thought that on the pure question of whether of this was rationally related to the interstate commerce, if there was no question but for Mr. Rhyne’s statements today.

Coming to the other issue, which I think is the crucial issue, as to whether statute impinges upon the value of Federalism, I take it we know that the outset of course that there is no immunity of state or local government from federal regulation as cases like the Sanitary District Case and the California Case test, but I want to make two arguments, one conceptual about the nature of the statute and one factual about the actual impact of the statute.

The conceptual argument is this, the 1974 Amendments, seem to me by their nature, less intrusive, less coercive, less damaging to state sovereignty, local sovereignty, and so less threatening the to the value of federalism than most of the statutes which this court has upheld, under the Commerce Clause in the past.

And it has done regularly for decades.

William H. Rehnquist:

Do you know about cases like Jones and Laughlin?

Robert H. Bork:

Yes, I am Mr. Justice Rehnquist.

William H. Rehnquist:

Do you not recognized any distinction between Federal Government exercising commerce authority over a private business and thereby displacing the state’s Legislative Authority to exercise its jurisdiction over that business and the Federal Government exercising commerce power over the state itself?

Robert H. Bork:

No, I do not think I do Mr. Justice Rehnquist unless the commerce power or any other power was used in a way that struck at the state’s ability to be a policy-making government and a policy-implementing center.

But I cannot, through the light of me, see any distinction between telling a state that your Social Policy is henceforth superseded and void and a Federal Policy which we impose takes the field.

That seems to be much more intrusive upon Federalism and upon the local sovereignty than saying, “You must pay a minimum wage,” which we pay and which private employers pay.

Yet, there is no doubt in the decisions of this court that the commerce power can go just about all the way down the road, so far, as preempting state authority over private business and yet the court in its footnote in Fry last year and you in your argument concede that there is a limit of apparently a good deal of short of there when you are dealing, when the Federal government is dealing with the state as a state.

Robert H. Bork:

I never meant to put the concession or affirmation as I recall it about federalism on that ground.

I think there is a limit to how much state law the Congress can oust.

I hope there will be limit, because I think it would be meaningless to worry about Federalism if it turned out that the only thing that states could do was tax and pay employees who were not allowed to do anything because the Federal government had taken over all the policies.

William H. Rehnquist:

Well, is there any doubt from our decisions, in the cases like Perez, that the Federal government pretty well can take over all the policies in the, so insofar as regulations of private individuals is concerned?

Robert H. Bork:

I though I had detected in this case, Mr. Justice Rehnquist, and in the dissent in words and in the dissent in Fry, the beginning of the concern about Federalism in an attempt to find the judicial formulation that would preserve it against all kinds of attacks of a kind I have not seen in the cases as to 1930’s and I think it is fine, I think that is desirable attempt to find the formulation that controls federal power short of the point where state and local sovereignty is destroyed, both in the field where you are affecting a state’s budget and in the field where you are ousting the state’s laws, I do not see any distinction between those.

Warren E. Burger:

You can find the authority to require all the states to enact a merit system, roughly comparable to its Federal Civil Service standards.

Robert H. Bork:

I do not know if they would, Mr. Chief Justice.

I have not really thought about that.

This act does not do it.

Warren E. Burger:

We are talking about fundamental power and I am trying to — let me put the hypothetical question.

How about the power to have a Federal Act that would regulate all the employee relations of the states and they support local governance, is it a Taft-Hartley for public employee?

Robert H. Bork:

That might be within Federal Power.

I do not know I hesitate to try to guess it but all the cases because I am going to suggest that this case is quite easily solved, much more easily solved than any of the other kinds of statutes such as the one you mentioned.

And I was trying to suggest, why this is a much less intrusive statute, the kind of statute you just mentioned.

And I think it is possible of course, to think of all kinds of Federal incursions in the state power that one would say Federalism is effectively gone.

But my point here is, that these are always matters of degree and no principle is being put forward today which would justify the overwhelming of the states.

Lewis F. Powell, Jr.:

Mr. Solicitor General, we are talking today about a case that involves the regulation by the Federal government of wages and certain conditions of employment of state and localities, so we do not have to go quite as far.

I feel that as you suggested a moment ago, and answer the question I am not going to put to you.

In Fry, we dealt not with putting a floor on the wages, but we are putting a ceiling, not only on wages, but on all the salaries of state and local governments.

In your brief, in your supplemental brief, you said that principle of Fry controls this case.

Suppose that the Congress had this session, where to enact the statute I recognized the political unpopularity of it but we are dealing with principle not politics, I hope at the moment.

Assuming the power to regulate the ceiling.

In other words, enacting controls on what the states could pay that people at all levels, what would you say about that?

Robert H. Bork:

Well, if I understand correctly Mr. Justice Powell, I think there would certainly be a problem, a serious problem, about applying such as ceiling permanently, other than emergency basis on this, permanently two elected officials and top policy makers because that might affect the quality of people you could get for those jobs.

A ceiling, generally, on the kinds of workers who are covered here that is essentially ministerial task, I think that is the other side of this case, which is why I think the Fry rationale basically supports us here.

And I think the question then becomes one of degree of impact.

It is quite possible to imagine a world in which state and local governments were so unable to maintain themselves that even a statute like this which puts a lower burden upon the states and local governments than the Federal government places upon itself and lower burden upon them that are placed upon the private employers.

It is possible to imagine a universe in which still that would be too much for the state and local government to shoulder.

But that is not that factual situation, we face here.

Out of principle, I understand you say that if this case is decided in favor of the government, there would be no principal way to avoid holding that the government also could impose ceilings on salaries and wages —

Robert H. Bork:

On these kinds of employees, unless the ceilings were low enough so that it could be shown that it actually hindered the states and their localities from carrying out their policies, but that is my point.

This is always a matter of degree and one can not find except, I would suggest one line of principle.

One can not find but the nature of this kind of law, a bright line distinction that will never be available.

Well, let me put it this way, the dissent in Maryland against Wirtz thought that a principle had been adopted by which the Federal government, if it wished, that overwhelmed the state budget, the state fiscal policy and virtually draw up the state budget.

Now I think, what I am saying to you is, that I do not believe such a principle was adopted there.

Robert H. Bork:

If such a principle were adopted there, I would suppose that the case was wrongly decided.

I do not think it was.

Proving substantially beyond which in this case and if you bear in mind what you just said about Fry as Justice Cardoza said, that principle is commencing to run a bit wild, is not it?

Robert H. Bork:

Well, I do no think it is.

I confess that the emotional impact of my brother Rhyne’s brief and argument, really rests upon a statement, of things as facts which, I am sorry to say are not facts.

When I got his brief last week and read it, I was terrified, I thought I was defending a monstrosity of a statute, because it turned out that we were going to bankrupt the cities, drive the polices from the streets, send the fire fighters in California home just as the forest erupted into a blaze, destroy the volunteer concept with a specific virtue, and this thing apparently has about the social policy attractiveness of a nuclear holocaust.

Lewis F. Powell, Jr.:

I do not wish to interrupt you except as far as I am concerned, I have no interest in the facts in this case, I speak only for myself.

I am concerned with whether or not, if we decide this case in favor of the government, there will indeed be any limitation, as to how far the Federal government can go in regulating the affairs of the states and localities themselves, give me the power of test, give me the power to decide what you are paid, I control you.

I think that is inevitable.

I would like to stick to the principle, I am not the least bit interested so far as I am concerned and any of my friend, Charlie Rhyne’s arguments about the dreadful results to individuals.

I am thinking about the long time doctrine of Federalism that seems to me to be on the verge of being destroyed by vesting in the Federal government, they are to put some floors under and ceilings over, the wages of federal and state employees.

Let me ask you this, we will move to slightly different area, the Governor of Utah put some cases that I think illustrate the problem.

Does the Congress have the power if you prevail in this case, to say to the states that they must — that they have authority to outlaw strikes against the government by employees?

Robert H. Bork:

I do not think that necessarily follows at all from this case Mr. Justice Powell.

Let me suggest, this case presents a particular type of statute and and if you were asking, what could I do with this type of statute to protect the Federalism.

I think the answer would be quite simple.

This case lends itself to an easy rule and that is a no discrimination rule.

It would be appropriate for this court, I think, to hold in the right case, that the Federal government may not impose cost and burdens upon the states and local governments significantly greater than it bears itself.

Here, the cost and burdens imposed upon the terms of minimum wage, upon the state and local governments are less than the Federal government imposes upon itself because the Federal government employees are subject to this act or to Title 5 whichever by provision is more favorable to the employee.

So that I think, if it were always held, that there could be no discrimination against the states by the Federal government.

That would be a perfectly adequate protection for the states.

Lewis F. Powell, Jr.:

It would allow strikes against — yet at the Federal level, it also could —

Robert H. Bork:

No, no.

I am sorry.

I am sorry Mr. Justice Powell, I was trying to say that when you are dealing with pay levels, that type of statute in which obviously Federalism could be destroyed by a minimum wage which said $30 per hour for state employees or could be destroyed be a statute which said, “You may pay no state employee more than $4000 a year.”

Obviously those things would destroy statutes.

But if you use a no discrimination rule, the Federal government without destroying itself can never destroy Federalism.

William H. Rehnquist:

The decision that Justice Frankfurter took in New York against United States and I think that majority of the court felt that something more was required and just delayed laying down a no discrimination rule in order to protect the state.

Robert H. Bork:

I think the taxing field is somewhat different than this field Mr. Justice Rehnquist.

And it would be — I think it is different for a variety of reasons.

Robert H. Bork:

But I fail to see in this context why a ‘no discrimination’ rule would not be a complete answer to a fears about the Federalism.

When you get to a case like this, the 1964 Civil Rights Act, the Labor Law and the other cases, obviously, a ‘no discrimination rule’ is not going to work as well to protect Federalism.

But here, it would work perfectly.

William H. Rehnquist:

But why does it work here and not say in the case where you make the state subject to the Taft-Hartley Act?

Robert H. Bork:

Well for this reasons, Mr. Justice Rehnquist.

If the Federal government said, we will subject the states to all the laws of the United States and thereby oust the states completely from any policy enforcement or policy making function.

I suppose that would be no discrimination but there would also be no state sovereignty. Here, if you say, the states must pay a minimum wage of the same size that the Federal government pays, in fact here is less because of this Title 5 comparison or to take Mr. Justice Powell’s case, the limitation upon state salaries must be no greater than the limitation upon Federal salaries, that kind of a test, I think, would adequately protect Federalism —

William H. Rehnquist:

But the same argument could be used to say, “Well, now we come to the question of collective bargaining and so forth,” and why not say, “It is alright, just long as Congress discriminates in treating of states no differently that does a private employer,” how could you distinguish that case from this under —

Robert H. Bork:

Well, I think I can. I think we are dealing with this fundamentally with different types of statutes.

The collective bargaining case is a case or the other cases we have been talking about are cases in which you subject the states to your rule of policy, what the law should be.

William H. Rehnquist:

But Mr. Rhyne suggest, rightly or wrongly, I do not know, that what is a higher policy making a function to state in determining its budgetary priorities and determining who is going to get how much in the way of wages?

Robert H. Bork:

Well, I think that is really — the budget in some sense follows from the choice about the various policies you want to carry out and the various programs you want to carry out rather the other way around.

And it seems to me, for the reasons, for another reasons, that this kind of statute is less intrusive.

Suppose a state has five hundred policies that carries out through its programs.

The approach of the standard Commerce Clause case when the Agricultural Adjustment Act or the Labor Relations Act is being considered is to come along and say to the state, “Two of your polices have just been completely wiped out and our policy is going to take over.”

The approach of this statute is to say, “It is going to cost you somewhat more,” and I have been trying to get to the point that it is not going to cost very much at all.

“This is going to cost you somewhat more to run your 500 policies.”

You may raise taxes, and run them all as you wish.

You may cutback some of them, cutback all of them slightly or drop two completely, the choice is yours.

That is a much less intrusive kind of statute than the statute that says, “Remember that law you just passed, it no longer exists. Our law has taken over.”

William H. Rehnquist:

But you are being required here to give up absolutely one policy and that is your policy of paying these particular workers a particular amount set by the state?

Robert H. Bork:

It is quite true Mr. Justice Rehnquist that you are required to give up the policy of paying a worker less than $2.20 per hour.

I cannot believe that is as much of a threat to Federalism as policies go as statement that, in labor relations, your policy is ousted and our takes over.

You may appeal the state’s choice of policy is unwise but it is every bit as much of the states choice there as was the states presumably before Wickard against Filburn to allow unlimited production of wheat.

Maybe that is not a wise choice, but it is nonetheless the state’s choice.

Robert H. Bork:

But that is my point Mr. Justice Rehnquist and that is that this case is like those cases and to strike down this case, you would have to have a Constitutional Counterrevolution and I think it would take you buy to —

I take that it is your position that if you lose this case, what do we say so or not, Wirtz case is really dead or really should be dead.

Robert H. Bork:

I think so, I think so.

And in all fairness to the law, you would suggest that if you lose this case, we overrule Wirtz?

Robert H. Bork:

In all fairness to the law, I hesitate to think of the number of cases, I think you ought to call overruled if I lose this case.

Robert H. Bork:

But I do not want to suggest that the scorched earth all around the Federal Statutes and—

Warren E. Burger:

Let us go back to your responses a moment ago Mr. Solicitor General, you said you could not, if I understood you correctly, you could not believe the $2.25 an hour, I think that was the figure minimum wage is going to hurt anybody very seriously, is that — ?

Robert H. Bork:

That is correct.

Warren E. Burger:

Suppose Congress raises it $3, $4, $5 to be with Kiowa, and Cheyenne, Wyoming and every other area. This is the new minimum prevails, even though cost of living very, very substantially from New York City, Washington to Cheyenne, Wyoming and Billings, Montana so far, what is to prevent Congress.

Is there some constitutional bar to prevent congress from raising the minimum wage to $5 an hour next week?

Robert H. Bork:

No I think, Mr. Chief Justice.

Part of my answer, I think the major part of my answer is, the ‘No Discrimination’ rule because that shows nobody is attacking Federalism.

The other answer which I made partially was —

Warren E. Burger:

The board would not discriminate —

Robert H. Bork:

No, no, that is quite right.

Warren E. Burger:

But is there any constitutional barrier to Congress next week or tomorrow?

I put $5 the minimum wage all over the United States and then to apply all of your arguments that you made here today.

Robert H. Bork:

I think there is no constitutional barrier unless after the statute had gone into effect, and this one has not.

And we are dealing here with, that grossest kind of speculations we are just going to do.

After the statute had gone in to effect and it turned out that even though there was no discrimination and the Federal government was bearing those cost too, that there were states and localities who simply could not function as effective sovereigns with that kind of wage rate, then I think you would have a different kind of lawsuit.

That is why I said before, I could imagine a universe, I do not think we are in it.

But I could imagine a universe in which even though there was no discrimination and even though that there are no political safeguards to Federalism that do exist.

After all these appellants have enormous amount of influence, Congress and many of these changes in the law.

Potter Stewart:

And not evident in this case?

Robert H. Bork:

I think it is, I think it is Mr. Justice Stewart because they managed to get their figures by overlooking the exemptions in the statute that Congress put in at their request which I must say is a way of getting high figures.

Is this listed on your ‘no discrimination’ test, what about the statute that said, ‘No state may pay its judges more than several judges are paid’?

Robert H. Bork:

I think I have a great deal of problem with that, one point of—

(Inaudible) and meet your test.

Robert H. Bork:

No, one of the things that I was saying was, that I will have more trouble as any regulation got applied to policy making officials or elected officials.

I am talking now, I mean I just have trouble with any coverage there but I am talking now about coverage of essentially laboring —

In Fry, the elected officials were not included because under the Ohio statute, they were not covered, but were not they covered by the Federal regulation?

Robert H. Bork:

In Fry?

Yes, (Inaudible) ceiling applied across the board?

Robert H. Bork:

Frankly, I am sorry to say, I do not recall.

Mr. Justice Stewart says it did not, certainly this statute was very carefully drafted to leave out anybody who was professional, anybody who was supervisory, anybody who was policy-making or elected.

Robert H. Bork:

And I might say, my brother Rhyne talked about the local Judge and his clerk, neither was covered by the statute.

Potter Stewart:

So may I ask, why would you have constitutional difficulties with my brother Stevens example of limiting of an active congress limiting the salary of all state judges and the maximum pay to the Federal Judges?

Robert H. Bork:

When I say difficulty, Mr. Justice Stewart, I mean difficulty not that I was clear that it was unconstitutional, because it seems to me that you are then affecting the quality, or the people or the type of people the state may attract to its highest officers.

(Inaudible) constitution prevents Congress from affecting that quality?

Robert H. Bork:

Well, if there is anything under the constitution, it is that value of Federalism we are discussing.

(Inaudible)

Robert H. Bork:

That is true.

(Inaudible)

Robert H. Bork:

I beg your pardon.

I do not think, you might think judges were outside its reach?

Robert H. Bork:

I might think that, but I think that a large part of my reason for thinking so would be the Federalism counterweight.

But if you apply the Perez analysis, you can define a class which would include judges, class of employees which would include judges, would you not?

Robert H. Bork:

You can, you can if you stick to the Commerce Clause and its usual, rational relation test to do not bring in to bare play the counterweight of Federalism which I am explicitly willing to do, indeed, I think should be done, and I am arguing that in this case, when that counterweight is fully considered —

John Paul Stevens:

Did you acknowledge the judge’s example that presents you a difficulty, it seems to me you are also acknowledging that your non-discrimination test is an inadequate test.

Robert H. Bork:

For this kind of a case, the statute we are facing today, it is a totally adequate test because this statute vary carefully does not reach —

John Paul Stevens:

You use different tests in different cases?

Robert H. Bork:

While the circumstances change Judge Stevens, I think you would have to.

For example, if you begin to see Federal statutes proliferating in every fields so that the Divorce Law is taking over, and the Commercial Code is taking over.

I suppose, some place, these courts would have to frame a test to call a halt, some place.

Warren E. Burger:

Of course this thing has always happened gradually, no has a coup d ‘etat in this area.

They take it over piece by piece and bit by bit and that is so what I thought that what this case is about.

Robert H. Bork:

Well, I was trying to suggest Mr. Chief Justice that, this case by its nature, lends itself to control more easily than other kinds of cases and by its nature, its judiciary and also is less intrusive upon state sovereignty than the other kinds of statutes that this courts has held well within the Commerce Clause.

So, that my point is, I quite agree, there may come a time when a stopping place has to be defined, But they call this case, the occasion for drawing that line, I think would be to draw a line at any illogical place for the wrong reasons.

Warren E. Burger:

In some of the colloquy, Mr. Solicitor General, there was some discussion about elected judges, elected officials and there are some states where the judges are appointed and let us assume for the moment that half of the states followed the hopeful trend among many judges and had something like the Federal system, that is if the Congress did not impose it on first, let us assume that they did it voluntarily.

Then would the appointed judges be exempt from the reach of Congress and the elected judges be subject?

Robert H. Bork:

Mr. Chief Justice, when we were discussing judges, I did not intend to make any distinction between the elected and appointed judges.

Since we are dealing with high policy officials at that point and I would have grave trouble in allowing regulation of such positions.

Warren E. Burger:

But you mentioned, I think you have a figure of $135 Billion of the total purchases of all government except Federal?

Robert H. Bork:

Yes, in 1971.

Yes sir.

Warren E. Burger:

It seems to be some consensus that somewhere give or take 80% of all that was spent for payroll.

Let us assume that is somewhere close to that.Anyway it is a great many billions of dollars that it would be somewhere from a $100 billion to $110 billion of the total expenditures of all state and local governments in the country would now, for certain purposes within the reach of control of Congress.

Robert H. Bork:

I have the figures on that Mr. Chief Justice.

The 1974 Amendments covered workers whose total wage bill is $36.6 billion.

Now, the labor Department has worked this out and the Bureau of Census has provided statistics, the cost of the minimum wage to the 90,000 persons we think are paid less than the minimum wage, and our supplemental brief most recent one discloses how that figured was arrived then.

The cost of the minimum wage would be to add $33 million to the $36.6 billion or to add one-tenth of 1%.

The maximum overtime cost would be to add $366 million and that is inflated because that is based on a forty-hour week and as our brief explains sixty-hour week without overtime is allowed and all kinds of exemptions are allowed.

But basing on the forty-hour week and with no averaging, it comes out to $366 million which is one percent of the wage bill it covers. That is a total of $400 million altogether, which is a little different than the figure of well over a billion that Mr. Rhyne derived on a basis which we do not know.

Warren E. Burger:

Whose figures are these Mr. Solicitor General?

Robert H. Bork:

These are the Labor Department’s figures.

Are they by affidavit or how do we have them?

Robert H. Bork:

There in our latest brief, that is in type-script reply to the supplemental brief.

Warren E. Burger:

Before that, there I was aware you had it but we take judicial notice to these figures because they are Labor Department figures, is that it?

Robert H. Bork:

Well, some of them were in reports to Congress and I forget precisely where that one was, maybe I can be told where it was.

I do not know if that was in a report to Congress or where it was.

Warren E. Burger:

I do not think, we would give them any weight.

We would have to take the risk that there might not be anymore reliable and some of the figures of the Social Security System and get many other things that are suddenly discovered to be —

Robert H. Bork:

These are Bureau of Census figures and Bureau of Labor Statistic figures.

They are published.

They may, I can not that there is no possibility that there is any error in them, but it possible to reconstruct the way they were they were compiled and published and the other figures we have are based upon Mr. Rhyne’s correspondence with various local officials and there is no way to tell how those were complied.

But Congress’ estimate was that this bill would cost less than 2% perhaps over 1% in the wage cost.

I am going to say that these figures suggest, that the total cost would be 1.1%, which is not, I think, controlling 85% of the state or city’s budget.

Lewis F. Powell, Jr.:

I have been thinking about your suggestion that perhaps Federalism would be saved and quite at least, if the Federal government were required not to impose any different limitations or different obligations on the states that is willing to impose on itself, but does not that cut against the basic tenet, one of them of Federalism that allows the diversity and for experimentation and would in fact you be comforted to any, if you were judge in Utah or judge in New York or California where the salaries are higher than federal judges.

If you were told that you will be exactly like the Federal judges in Washington or take the case of government from Utah which is relatively rural state with wage levels perhaps, presumably far lower than there in New York City or Washington DC, simply because somebody up here in Washington imposes on you, the same rules and regulations it is willing to operate on a totally different environment, it does not seems to be very helpful.

Robert H. Bork:

Well, in the first place of course Mr. Justice Powell.

The federal government employees do operate in the same area, so that they are imposing upon themselves the cost for that area, the same as they imposed upon this state.

Warren E. Burger:

The Federal government have the differentials by regions?

Robert H. Bork:

Not I think in this area, perhaps it should.

But I do not think that is constitutional requirement that it should.

Lewis F. Powell, Jr.:

That is promoted by homogenizing the whole country in the way you suggest.

Robert H. Bork:

No Mr. Justice Powell, I trust I have not suggested homogenizing the country.

Lewis F. Powell, Jr.:

(Inaudible) towards that —

Robert H. Bork:

Well of course every exercise of the commerce power is a step towards the obliteration of Federalism.

Lewis F. Powell, Jr.:

I understand that, but I come back to Justice Rehnquist’s distinction.

This case, arguably, is different.

I realize you have a different view but I say arguably, this is the first major intrusion starting with West that I know of, in which the Federal government is saying to the states and localities, “We are going to run your labor policies and fix your wages and salaries,” that is a major departure as I view it.

Robert H. Bork:

Well, my entire, that entire part of my argument Mr. Justice Powell was devoted to saying there is no difference between this case, in its effect upon state’s sovereignty than Darby, the United Stated against Darby, where they told the state of Georgia, for the first time Georgia had a minimum wage which it did not want and that ousting state’s sovereignty, I do not see the difference.

Now the suggestion is that the difference is that you have touched the state in some metaphysical way.

You have touched the states body in a way that you don’t.

When you are merely take the laws of the states passes away from it.

Lewis F. Powell, Jr.:

(voice overlap) freedom of the state, the function that you suggest if these wages were set at a limit that it had it (Inaudible), then maybe you have a different case but it would start down this road as a principle, it is hard to see why one would stop (voice overlap)

Robert H. Bork:

Mr. Justice Powell, I think that has certainly been true ever since the first exercise of the Commerce Clause.

You have introduced a principle which becomes a matter of degree —

Warren E. Burger:

Did they not relate to private activity?

Robert H. Bork:

My point about that is that I think there is no distinction between a statute that touches the state in this way and a statute that touches the state by saying it may not govern its citizens in the way that it has chosen to do so in that past.

I recognize that in the Fry dissent, this kind of point was being made — that cases like Darby and Jones and Laughlin are not really relevant because those were private citizens who were making a claim which could only be a claim that Congress lacked legislative power.

Now, I think those cases are relevant.

The suggestion there is that the state has a different inherent objection based upon Federalism.

I can not understand how that it come about for one thing, the Tenth Amendment reserves the right to the states and the people and makes no distinction as to whether it is a person or a state that is raising the Federalism claim.

Potter Stewart:

I can not understand that, Why, when they go back do you have any doubt at all about the power of Congress to limit the salaries of the state judges.

Robert H. Bork:

Why do I have any doubt about it, because I think Mr. Justice Stewart, that when you get to limiting, controlling what the states does with respect to it governor, its judges, its legislators, its policy-making officials, its cabinet officials, your are effectively limiting them in the way can get people and deal with people in making policy. Here, the federal government has gone nowhere near that area.

It is, the statute, stayed as far as possible away from anybody to be called a supervisor or a policy-maker, I would be troubled.

(Inaudible) constitutional principle.

Robert H. Bork:

It seems to me that constitutional principles changed with circumstance and it seems to me that when you are dealing with the Governor of the states, with the states Supreme Court, you are dealing with the state at its most intimate, the center of its policy making apparatus.

There he is striking at sovereignty, when you are saying to pay that man that shoveling snow, 26 more an hour, I do not think that you have done the same thing at all.

John Paul Stevens:

Can you make the same argument for a minimum salary for state judge as for maximum salary, that would not interfere with any—

Robert H. Bork:

I would be, Mr. Justice Stevens, I do not think, I can elaborate all of the distinctions, I would want to make, if I were faced with that kind of thing.

But in as a general matter, I would be much more troubled about any Federal regulation of what you can do with respect to a state judges in paying him and so forth.

John Paul Stevens:

The judge is sort of such an important of the state government?

Is he less important or less in the traditional sense than the police force?

Robert H. Bork:

Well yes.

I think when you deal with the policy-making individual or body, it is different.

William H. Rehnquist:

It would make policy, General–

Robert H. Bork:

Well, there is a school of thought centered in the Yale Law School, Mr. Justice Rehnquist, that suggest that they do occasionally, but I was trying to prevent it in this case — I am sorry.

Lewis F. Powell, Jr.:

I have been taking a bit of just drawing the distinction between policy makers.

Let us assume for a moment that we are taking about the Superintendent of Education of a state, and you would say I take it that the Federal government would not have power to regulate his salary but obviously, would have power to regulate under the argument you advance, the salaries of people whom he employs?

Robert H. Bork:

The secretary or something.

Lewis F. Powell, Jr.:

Well, I am going up to an immediate level and let us see what is your position is.

Suppose he has as state superintendent, necessarily do have 20 or 30 quite key positions in the organization, maybe a 50 or 100 depending on the size of the state, are they policy-making people or —

Robert H. Bork:

They may well be.

Obviously, Mr. Justice Powell that we are dealing with a complete and unbroken spectrum from somebody who is emptying waste baskets to somebody who has a power to call up a national guard and so forth — the Governor’s (Inaudible) and I do not know that I can –the trouble with this whole field is we are dealing with the complete spectrum of power in the Commerce Clause and I do not think it is possible to specify the break line, right where the power breaks or right where the distinction breaks.

(Inaudible) what could fairly be characterized as a policy position, however small it maybe in terms of the impact on the state government would be different from —

Robert H. Bork:

I think so, I think so, because then you are getting close to the essence of sovereignty.

Do you think this — you surprised me, Mr. Solicitor General, do you think of this as a matter of a place for the Commerce Clause, power stops or a place where despite acknowledged power under the Commerce Clause, there is an impediment or prohibition in the Constitution.

In other words, let me and I borrow this from brother Rehnquist’s dissent in Fry, Congress has undoubted power on the Commerce Clause, I would suppose, to limit the content of what should be published in interstate magazines — magazines that go on the state.

No questions of its power in the Commerce, but also no question of its lack of power to do that, not because of a limitation on a Commerce Clause but because of the Prohibition of the First Amendment, that is what you are into, isn’t it?

Robert H. Bork:

I think, what I am saying is, that the position in Fry dissent seems to separate out the Commerce Clause and something like a personal privilege that a state can assert.

A prohibition or a limitation imposed from elsewhere in the constitution?

Robert H. Bork:

I had always thought that the Tenth Amendment merely made explicit what the fact of enumeration of powers may employ.

And that Federalism lived in the interstices of the enumerated powers.

But, I think there is something more than that and I do not think one has to use the Tenth Amendment as a textual peg.

What there is more than that is a document that contemplates this dual system of government.

And if the document contemplates that, then I think reasoning not from any particular textual passage or reasoning from the structure, the constitution in the pure sense of the word.

One says, “If the Federal government undertakes to destroy a state government, the judiciary may stop it.”

The Constitution stops it.

Robert H. Bork:

It usually does because of the warrant given up by the constitution, so there is that counterweight in the constitution.

I have no problem with it.

I think, in order to make a distinction between this case and all of the other Commerce Clause cases, I really think one has to adopt the Fry dissent and I think if one does that, one has all kinds of difficulty.

You yourself have some difficulties that seems to me in answering Justice Stewart’s earlier question, where you are talking about a maximum salary for judges and you say Congress can not impose that and presumably because of some sort of principles of Federalism.

Yet it is perfectly clear I would think under Jones and Laughlin that Congress can impose a maximum salary on any president of a business located within the judge jurisdiction and the reason for that that there is no Federalism principle there or at least none that has ever been enunciated by this Court.

Robert H. Bork:

Well, I find greatly difficulty there, I would like to address that if I may at a little length.

Warren E. Burger:

Also you mentioned in the dissent, there was also, you may remember the dissent in Wirtz.

Robert H. Bork:

Yes, I had attempted to discuss that once or twice.

But I think in order to distinguish Darby from this case, which is the real question before us, that you would have to have a constitutional innovation of really some dimensions, because one has to say that, “To touch the state is forbidden and a state can raise objections that an individual cannot in the name of Federalism, which is of course what the Fry dissent suggests.

Byron R. White:

(Inaudible)

Robert H. Bork:

But I am suggesting it was operating in Darby Mr. Justice White.

The case came out as it did.

But I am suggesting that the Federalism objection is validly raised by an individual or an enterprise as much as by a state.

It Never has prevailed, has it?

Robert H. Bork:

Has upon occasion, pardon me?

(Inaudible)

Robert H. Bork:

I do, I am sorry.

William H. Rehnquist:

Then why do you get the different result for the setting of a maximum ceiling on a Corporation Executive by Congress in the setting of a salary on judges if Darby and Wirtz are the same.

Robert H. Bork:

Darby and Wirtz are the same only, Mr. Justice Rehnquist in the sense that Federalism could be considered in both cases in each case even though in one case it was raised by a lumber manufacturer and the other case it is raised by a state but it depends upon what is you are applying the Federal Regulation to.

If you are applying it to a set of individuals, a bank president, then you have — let me put it this way.

I do not think, the distinction between whether the law operates upon the state as this one does or upon the state’s citizens makes any difference.

And I would suppose it does not because I would suppose among other things that that would mean that the states could waive Federalism, that if only individuals came in here to this court and said, “Congress has exceeded its power and is taking away the policy-making functions of the state by replacing its legal code that this court would have to say, but you are not the state and therefore we do not consider Federalism even though Federalism is destroyed.

I do not believe that.

I do not believe that Federalism is an immunity personal to the state which the state may wave if it does not choose to raise it.

Then your assurances to the various members of the court that when we get to a really tough case of the impairment of state sovereignty in the sense effecting the state as a state, will have a remedy, is really illusory because you cannot tell me that Perez, if the Perez line of reasoning governs this type of case we are talking about the state, that there is any stopping place, there isn’t!

Robert H. Bork:

Well, I think if this court becomes impressed with the idea that in fact, the states are being ousted as law-making and law enforcing bodies that a stopping point will have to be called.

I can not imagine—

Warren E. Burger:

Is it done little by little, bit by bit?

Robert H. Bork:

I would think so, Mr. Chief Justice.

Warren E. Burger:

What do you do?

Add it up cumulatively and say not one of these would have been a serious invasion but taken all together they are now allowed to —

Robert H. Bork:

There maybe various kinds of test that can be constructed.

Warren E. Burger:

But the court did not stop short of Perez?

Where can it stop?

As far as the commerce power and if is your submission and that is all is involved here, as I understand.

Warren E. Burger:

No, it is my submission that one —

In Federalism address are present in the Perez type case as there are in this type case.

Warren E. Burger:

Yes, but the circumstances of that case may not raise it and—

Does the court Perez passed any conceivable stopping point as far as commerce power?

Warren E. Burger:

I trust not if it becomes apparent that the Commerce Clause is in fact destroying the states as entities with sovereign powers.

I trust at that point, I do not think the Perez case is involved that, I trust at that point you would call it up —

Where did a state enter into the Perez?

Robert H. Bork:

Well, I do not think it does very much, but that is why I think the Federalism is not very heavily implicated there.

Warren E. Burger:

The question of whether the Federal government, the Congress could regulate some hoodlums engaged in loan-sharking.

Now you have not got any sovereign state and its powers involved there, have you?

Robert H. Bork:

We probably heard quite states laws about the subject.

Warren E. Burger:

Whether the states had gone into that field or not.

Robert H. Bork:

Well, the state probably does have laws about loan-sharking and so forth.

Warren E. Burger:

You mentioned the Tenth Amendment choice but only in passing, and at least I got the impression second time, that you thought that Tenth Amendment really was not necessary that the enumerated powers took care of the same proposition — The Tenth Amendment had nothing to do with this case?

Robert H. Bork:

Only I think in the sense that the Tenth Amendment conforms the implication to be drawn from two other things.

One is the implication to be drawn from the fact that powers are enumerated and therefore, in some sense, limited.

And the other is the fact that the document that constitution specifies dual sets of governments and to that extent, specifies that there is Federalist value written in the document, just as they would have been I think, the constitution protection for free political speech there had never been a First Amendment.

Warren E. Burger:

Do you think that the Tenth Amendment has any functions such as the First Amendment has on the commerce power in Justice Stewart’s hypothetical?

Robert H. Bork:

Well if it does, one could say that the Federalist value is located in the Tenth Amendment, but I think it is located elsewhere at the Tenth Amendment is just as true as just in this court said in Darby.

But if it is located in the Tenth Amendment, then it is certainly not true that this case is different from Darby because the Tenth Amendment explicitly says, “The rights are reserved to the states and to the people if not delegated to the Congress.”

(Inaudible)

Robert H. Bork:

Well, I would suggest if we are talking doctrinally, conceptually, I would suggest that the Federalism ground is independent weight which inheres in the structure of government that the constitution establishes.

And I think it is mistaken to try to attach it to the Tenth Amendment as a peg or to the Commerce Clause a peg.

It is a generalized constitutional value.

(inaudible)

Robert H. Bork:

As a professor of Law, I would prefer that approach as Solicitor General, I would find either approach that reached that result, extremely painful.

And furthermore, I think that it will prove very hard to explain why this case is more dangerous that Darby and all of those cases without returning to something like the 1930s.

Warren E. Burger:

You do not think this case goes beyond Wirtz?

Robert H. Bork:

I do not think this case goes beyond Wirtz, I do not think this case is very threatening to Federalism at all.

It is a very light impact upon workers of really a menial status and this court has ample means of using the Federalism value to limit future statutes that might begin to move towards judges or legislators or do something terrible.

Warren E. Burger:

(Inaudible)

Mr. Rhyne before you start, I would like to mention a thought that has been running through my mind and give you a chance to comment on that.

Article 4 provides that United States should guarantee each state a Republican form of government.

And the Court as you know is held that questions under that section are political in character.

As I listen to this Solicitor General characterized you argument about policy and the disastrous effect of this statute on the states, it occurred to me that your clients are in a peculiarly effective position to make their arguments known to the Congress.

I wonder if you would comment on whether or not this is the kind of problem that could best be addressed by Congress.

Charles S. Rhyne:

Let me tell you exactly what happened in the Congress.

They did address their arguments to the Congress and they were beaten by big labor.

Two Secretaries of Agriculture testified that this Act was opposed the Act and one the ground that it would so overburden small government, really they should have said big government that it was unwise.

Then, there was a presidential veto which was upheld and then without further hearing, big labor steamed rolled (ph) this through the Congress again.

Now that is the Congressional record which cannot be challenged.

It is the record of this particular legislation.

Now I would like–

Warren E. Burger:

Before you answer the question, if I may suggest, that that is the political remedy but you claim the you have a constitutional barrier that prevents Congress from doing what it has done.

Charles S. Rhyne:

That is right your honor.

Now I would like to correct and it always disturbed me when counsel on the other side, attacks figures, I would like to call the attention of the court to one very important thing.

Last night, I say, I got very late, a brief from the Solicitor General in which he comments a lot on a brief that we had filed and the urban data service is relied upon throughout that brief.

Well it so happens that the urban data service which I agree is the most reliable, the most knowledgeable, the best of all sources of interest in this country on government, is the one in the appendix to our brief, made the estimate of $1 billion per year.

Now all these other —

Warren E. Burger:

1 billion?

Charles S. Rhyne:

$1 billion per year.

Now they know what they are taking about, they base this on reports from city managers and those on the local level.

Those people are not liars, they report what the facts are and so I say if the Solicitor General in his brief can rely on the urban data service, so can we.

And that is exactly what we have here.

Now secondly, I would like to say there was some question about whether 85% of the budgets, R & D personnel.

Now that is a fact that has appeared, it seemed like a thousand times in the media, I find that the first argument on page 38 that the Solicitor General himself said as I understand it in municipalities, the budget is 80%-85% wages.

Now, the whole business that is so bothersome here is that the policy of a state, the policy of a city, the policy of a county is its budget.

They are like telephone books, it tells what are you going to do, who are they going to serve, who are they going to hire what they are going to pay them.

And what happens here is, for that telephone book, we are going to have this telephone book, the Federal Regulations replace it and in addition to this telephone book which sets forth all the Federal Regulations under the Fair Labor Standards Act, there is an addition.

The very minute regulations as to police and fire, that makes your report every time, how long they eat, how long they sleep, it is the most intrusive, the most absolute interference that one can imagine.

Charles S. Rhyne:

So, I would conclude that if we want in this 200th year to have a unitary government, okay, this is the way we will get it.

I went to the trouble of calling the Solicitor of the City of London to ask him who fixed the wages of his people because I would like to know.

I want to know what Parliament had to do with it.

He said, “well, in the overall parliament can do it, but after underneath it, we do it all.”

Now we have checked in Australia, we have checked in New Zealand, we have checked in many other countries, there is no county in the world with a national government, unless it is unitary, fixes the pay and the wages of everybody the way that is proposed here.

And I think that this idea of Federal regulations and the Federal Regulatory and Federal Courts, because you are going to be the final arbitrar of all of these states.

They point out in these regulations that these are merely suggestive, that you go to Court to get everything.

And you are going to have class actions and you are going to have all these cost and attorney’s fees and you are going to have it in the Federal Courts, because that is the only place you can get it.

Of course, that is Congress’s perfect right to confer a course of action, to go on the Federal Court if that the statute is valid.

Charles S. Rhyne:

I am merely urging that this is one of the intrusions into this whole thing that states and cities and counties, as the county brief points that they are not used to dealing with.

And why have duplicate regulation on top of regulation — that is what you have here.

And we have a complete system now and when you dump all of the Federal Regulation on top of it, it will simply make states and cities fiscal integrity a question, not only in some of our larger cities but in our smaller cities as well.

They are on the borderline now.

They can not take the cost of this legislation.

Warren E. Burger:

Thank you gentleman.

The case is submitted.