The Economic Stabilization Act of 1970 authorized the President
to stabilize wages and salaries at certain levels, and the Pay
Board was created to oversee the controls. The Government filed
this action to enjoin Ohio and its officials from paying state
statutory wage and salary increases to state employees above the
amount authorized by the Pay Board. The Temporary Emergency Court
of Appeals, on certification from the District Court, construed the
Act as applying to state employees, upheld its constitutionality,
and enjoined payment of the increases.
1. The Act's language contemplating general stabilization of
"prices, rents, wages, salaries, dividends, and interest" and
providing that the controls should "call for generally comparable
sacrifices by business and labor as well as other segments of the
economy," and its legislative history showing that Congress had
rejected an amendment exempting state employees, make it clear that
the Act was intended to apply to employees generally, including
state employees. That the Act did not expressly refer to the States
warrants no inference that controls could not extend to their
employees. Pp. 421 U. S.
2. The Act was constitutional as applied to state employees. Pp.
421 U. S.
(a) General raises to state employees, even though purely
intrastate in character, could significantly affect interstate
commerce, and thus could be validly regulated by Congress under the
Commerce Clause. P. 421 U. S.
(b) States are not immune from all federal regulation under the
Commerce Clause merely because of their sovereign status.
Maryland v. Wirtz, 392 U. S. 183
Here, where the Act did not appreciably intrude on state
sovereignty, but was an emergency measure to counter severe
inflation, the effectiveness of federal action would have been
drastically impaired if wage increases to state and local
governmental employees (who, at the time the wage freeze was
activated, composed 14% of the Nation's workforce) were left
outside the Act's reach. Pp. 421 U. S.
Page 421 U. S. 543
(c) Since the Ohio wage legislation conflicted with the Pay
Board's ruling, the State must yield under the Supremacy Clause to
the federal mandate. P. 421 U. S.
487 F.2d 936, affirmed.
MARSHALL, J., delivered the opinion of the Court, in which
BURGER, C.J., and BRENNAN, STEWART, WHITE, BLACKMUN, and POWELL,
JJ., joined. DOUGLAS, J., filed a separate statement,
p. 421 U. S. 549
REHNQUIST, J., filed a dissenting opinion, post,
421 U. S.
MR. JUSTICE MARSHALL delivered the opinion of the Court.
The Economic Stabilization Act of 1970 [Footnote 1
] authorized the President to issue orders
and regulations to stabilize wages and salaries at levels not less
than those prevailing
Page 421 U. S. 544
on May 25, 1970. By Executive Order, the President created the
Pay Board to oversee wage and salary controls imposed under the
Act's authorization. Exec.Order No. 11627, 3 CFR 218 (1971 Comp.),
note following 12 U.S.C. § 1904 (1970 ed., Supp. I). In
implementing the wage stabilization program, the Pay Board issued
regulations that limited annual salary increases for covered
employees to 5.5% and required prior Board approval for all salary
adjustments affecting 5,000 or more employees. [Footnote 2
] The State of Ohio subsequently enacted
legislation providing for a 10.6% wage and salary increase,
effective January 1, 1972, for almost 65,000 state employees.
] The State applied
to the Pay Board for approval of the increases, and a public
hearing was held. In March, 1972, the Board denied the application
for an exemption to the extent that it exceeded salary increases of
7% for the 1972 wage year. [Footnote 4
] Petitioners, two state employees, sought a
writ of mandamus in state court to compel Ohio officials to pay the
full increases provided in the state pay act. The Ohio Supreme
Court granted the writ and ordered the increases to be paid.
State ex rel. Fry v. Ferguson,
34 Ohio St.2d 252, 298
N.E.2d 129 (1973).
Page 421 U. S. 545
After the State Supreme Court decision, the United States filed
this action in the District Court to enjoin Ohio and its officials
from paying wage and salary increases in excess of the 7%
authorized by the Pay Board. The District Court certified to the
Temporary Emergency Court of Appeals the question of the
applicability of federal wage and salary controls to state
§ 211(c) of the Economic Stabilization Act,
note following 12 U.S.C. § 1904 (1970 ed., Supp. I).
The Court of Appeals construed the Act as applying to state
employees, and as thus construed upheld its constitutionality.
United States v. Ohio,
487 F.2d 936 (1973). Relying on the
decisions of this Court in Maryland v. Wirtz, 392 U.
(1968), and United States v. California,
297 U. S. 175
(1936), the court concluded that the interference with state
affairs incident to the uniform implementation of federal economic
controls was of no consequence, since Congress had a rational basis
upon which to conclude that the state activity substantially
affected commerce. The Court of Appeals accordingly enjoined the
payment of wage and salary increases in excess of the amount
authorized by the Pay Board. We affirm.
At the outset, it is contended that Congress did not intend to
include state employees within the reach of the Economic
Stabilization Act, and that the Pay Board therefore did not have
the authority to regulate the compensation due state employees.
] We disagree. The
language and legislative history of the Act leave no doubt
Page 421 U. S. 546
that Congress intended that it apply to employees throughout the
economy, including those employed by state and local governments.
The Act contemplated general stabilization of "prices,
rents,'wages, salaries, dividends, and interest," § 202, note
following 12 U.S.C. § 1904 (1970 ed., Supp. I), and it provided
that the controls should "call for generally comparable sacrifices
by business and labor, as well as other segments of the economy." §
203(b)(5). It contained no exceptions for employees of any
governmental bodies, even at the federal level. [Footnote 6
] The failure of the Act to make
express reference to the States does not warrant the inference that
controls could not be extended to their employees. See Case v.
Bowles, 327 U. S. 92
327 U. S. 99
(1946); United States v. California,
297 U.S. at
297 U. S. 186
Indeed, in framing the Act, Congress specifically rejected an
amendment that would have exempted employees of state and local
governments. 117 Cong.Rec. 43673-43677 (1971). And the Senate
Committee Report makes it plain that the Committee considered and
rejected a proposed exemption for the same group. S.Rep. No.
92-507, p. 4 (1971). It is clear, then, that Congress intended to
reach state and local governmental employees. The only remaining
question is whether it could do so consistent with the
constitutional limitations on its power.
Page 421 U. S. 547
Petitioners acknowledge that Congress' power under the Commerce
Clause is very broad. Even activity that is purely intrastate in
character may be regulated by Congress, where the activity,
combined with like conduct by others similarly situated, affects
commerce among the States or with foreign nations. See Heart of
Atlanta Motel, Inc. v. United States, 379 U.
, 379 U. S. 255
(1964); Wickard v. Filburn, 317 U.
, 317 U. S.
-128 (1942). There is little difficulty in concluding
that such an effect could well result from large wage increases to
65,000 employees in Ohio and similar numbers in other States;
general raises to state employees could inject
millions of dollars of purchasing power into the economy and might
exert pressure on other segments of the workforce to demand
Petitioners do not appear to challenge Congress' conclusion that
unrestrained wage increases, even for employees of wholly
intrastate operations, could have a significant effect on commerce.
Instead, they contend that applying the Economic Stabilization Act
to state employees interferes with sovereign state functions, and,
for that reason, the Commerce Clause should not be read to permit
regulation of all state and local governmental employees. [Footnote 7
Page 421 U. S. 548
On the facts of this case, this argument is foreclosed by our
decision in Maryland v. Wirtz, 392 U.
(1968), where we held that the Fair Labor
Standards Act could constitutionally be applied to schools and
hospitals run by a State. Wirtz
reiterated the principle
that States are not immune from all federal regulation under the
Commerce Clause merely because of their sovereign status. 392 U.S.
at 392 U. S.
-197. We noted, moreover, that the statute at issue
was quite limited in application. The federal
regulation in this case is even less intrusive. Congress enacted
the Economic Stabilization Act as an emergency measure to counter
severe inflation that threatened the national economy. H.R.Rep. No.
91-1330, pp. 9-11 (1970). The method it chose, under the Commerce
Clause, was to give the President authority to freeze virtually all
wages and prices, including the wages of state and local
governmental employees. In 1971, when the freeze was activated,
state and local governmental employees composed 14% of the Nation's
workforce. Brief for United States 20. It seems inescapable that
the effectiveness of federal action would have been drastically
impaired if wage increases to this sizeable group of employees were
left outside the reach of these emergency federal wage
We conclude that the Economic Stabilization Act was
constitutional as applied to state and local governmental
employees. Since the Ohio wage legislation conflicted with the Pay
Board's ruling, under the Supremacy Clause, the State must yield to
the federal mandate. See Public Utilities Comm'n of California
v. United States, 355 U. S. 534
355 U. S.
-545 (1958); Murphy v. O'Brien,
671, 675 (Temp.Emerg.Ct.App. 1973).
Page 421 U. S. 549
Title II of the Act of Aug. 15, 1970, Pub.L. 91-379, 84 Stat.
799, as amended, note following 12 U.S.C. § 1904 (1970 ed., Supp.
I). The Act was extended five times before it expired on April 30,
6 CFR §§ 101.21, 201.10 (1971). See also
6 CFR § 101.28
Ohio Rev.Code Ann. § 143.10(A) (Supp. 1972). The Act provided
for salary increases for employees of the state government, state
universities, and county welfare departments. Elected state
officials were not included.
The Pay Board determined that the implementation of the pay
increase from March, 1972, to November, 1972, would reduce the
effective rate to 7% for the wage year November 14, 1971, to
November 13, 1972. The payments in issue here therefore represent
the wages and salaries that were due from January 1, 1972, when the
pay increase was to take effect, to March 16, 1972. The total
amount involved is $10.5 million.
Petitioners did not raise the statutory issue either in their
petition for certiorari or in their brief. Rather than decide a
constitutional question when there may be doubt whether there is
any statutory basis for it, however, we deal first with the
statutory question, which is addressed in the briefs of amici
Congress did provide for the exemption of certain categories of
employees, such as members of the working poor, those earning
substandard wages, and those entitled to wage increases under the
Fair Labor Standards Act. §§ 203(d) and (f), note following 12
U.S.C. § 1904 (1970 ed., Supp. I). See also
203(c)(1)-(3), (f)(2)(3), and (g). The various stabilization
agencies have uniformly interpreted the Act to include the States
within its scope, see
36 Fed.Reg. 21790, 25428 (1971); 37
Fed.Reg. 1240, 24961, 24989-24991 (1972). We have long recognized
that the interpretation of a statute by an implementing agency is
entitled to great weight. Udall v. Tallman, 380 U. S.
, 380 U. S. 16
Petitioners have stated their argument not in terms of the
Commerce power, but in terms of the limitations on that power
imposed by the Tenth Amendment. While the Tenth Amendment has been
characterized as a "truism," stating merely that "all is retained
which has not been surrendered," United States v. Darby,
312 U. S. 100
312 U. S. 124
(1941), it is not without significance. The Amendment expressly
declares the constitutional policy that Congress may not exercise
power in a fashion that impairs the States' integrity or their
ability to function effectively in a federal system. Despite the
extravagant claims on this score made by some amici,
are convinced that the wage restriction regulations constituted no
such drastic invasion of state sovereignty.
MR. JUSTICE DOUGLAS.
Less than three months after we granted certiorari, Congress
allowed the Economic Stabilization Act to expire on April 30, 1974.
There is therefore no continuing impediment to the payment of
salary increases of the kind at issue in this case. I would
therefore dismiss the writ as improvidently granted.
MR. JUSTICE REHNQUIST, dissenting.
Mr. Chief Justice Chase, in his opinion for the Court in
7 Wall. 700, 74 U. S. 725
(1869), declared that "[t]he Constitution, in all its provisions,
looks to an indestructible Union, composed of indestructible
States." A little over a century later, there can be no doubt that
we have an indestructible Union, but the Court's opinion in this
case is the latest in a series of decisions which casts some doubt
upon whether those States are indeed "indestructible."
Maryland v. Wirtz, 392 U. S. 183
(1968), held that Congress could impose the provisions of the Fair
Labor Standards Act upon state entities, so as to regulate the
maximum number of hours and minimum wages received by state
employees of hospitals, institutions, and schools. The Court's
opinion in this case not unreasonably relies on Wirtz
holding that Congress may impose across-the-board limitations on
salary increases for all state employees. In their briefs and
arguments to this Court, petitioners sought to distinguish
on the ground that the employees there regulated
were performing primarily "proprietary" functions. The Government
countered this argument with language from United States v.
California, 297 U. S. 175
(1936), a case which is not discussed by the Court but which was
critical to the development of the doctrine which the Court today
applies. There, the Court held that the State of California, in
Page 421 U. S. 550
operating a railroad wholly within its own boundaries, was
subject to the provisions of the Federal Safety Appliance Act.
Today's decision, like Maryland v. Wirtz, supra,
United States v. California, .supra,
is plausible on its
facts. Congress, in the Economic Stabilization Act of 1970, wished
to check runaway inflation, and, as a means to that end, sought to
control increases in wages and salaries. Since state employees
constitute a significant portion of the labor force as a whole,
Congress could reasonably conclude that a stabilization scheme
which excluded such employees from its ambit would be less
effective than one which included them. And, of course, precisely
the same reasoning may be advanced in support of the result in
and in United States v. California.
Yet the danger to our federal system which is emphasized by
these three cases taken together, as it is not by any one taken
separately, seems to me quite manifest. The Tenth Amendment, the
Court's opinion in this case insists, does have meaning; but the
critical question is how much meaning is left to it and the basic
constitutional principles which it illumines. As stated by MR.
JUSTICE DOUGLAS, dissenting in Maryland v. Wirtz, supra,
at 392 U. S.
"If all this can be done, then the National Government could
devour the essentials of state sovereignty, though that sovereignty
is attested by the Tenth Amendment."
I do not believe that the Constitution was intended to permit
the result reached today, and so I dissent.
United States v. California, supra,
stated a principle
of Congress' Commerce Clause power over state activities which was
deemed "controlling" in Maryland v. Wirtz, supra,
392 U. S. 198
It is thus necessary to begin this analysis with Mr. Chief Justice
Stone's opinion for a unanimous
Page 421 U. S. 551
Court in that case. One shoulders a heavy burden of proof in
seeking to demonstrate that that opinion is analytically flawed.
Yet its treatment of the issue of intergovernmental immunity is
less than satisfactory, even though the case may have reached a
sound result upon its facts. The case was decided in 1936, at the
beginning of what might be called the present era of Commerce
Clause law in this Court. The Court was in the process, later
completed in cases such as NLRB v. Jones & Laughlin Steel
Corp., 301 U. S. 1
and United States v. Darby, 312 U.
(1941), of freeing both Congress and the States
from the anachronistic and doctrinally unsound constructions of the
Commerce Clause which had previously been used to deny both to the
States and to Congress authority to regulate economic affairs. It
is quite understandable in this context that the Court, in
United States v. California,
should have been inclined to
give somewhat short shrift to a claim of "States' rights," even
when invoked by the State itself against congressional authority
under the Commerce Clause. The claim of "States' rights" had so
frequently been invoked in the past as a form of jus
not by a State, but by a business enterprise seeking
to avoid congressional regulation, that the different tenor of the
claim made by the State of California may not have impressed the
The Court's California
"The sovereign power of the states is necessarily diminished to
the extent of the grants of power to the federal government in the
Constitution. The power of a state to fix intrastate railroad rates
must yield to the power of the national government when their
regulation is appropriate to the regulation of interstate
297 U.S. at 297 U. S. 184
But this familiar doctrine of The Shreveport Rate Cases,
234 U. S. 342
(1914), that, under the Supremacy
Page 421 U. S. 552
Clause, even intrastate commerce which affects interstate
commerce is subject to Congress' overriding authority to regulate
commerce, is not a full answer to the claim of a State that it may
not be regulated as a State. Neither California in that case,
Maryland in Wirtz,
nor Ohio in this case, questions that
Congress may preempt state regulatory authority in areas where both
bodies are otherwise competent to act. But this well recognized
principle of the Supremacy Clause is traditionally associated with
federal regulation of persons or enterprises, rather than with
federal regulation of the State itself, and it is difficult to
understand how it supports the proposition that the States are
without a constitutional counterweight which can limit Congress'
exercise against them of its commerce power.
The Court in California went on to consider the analogy of
constitutional immunity of state instrumentalities from federal
taxation, but rejected it as "not illuminating." 297 U. at
297 U. S. 184
Apparently conceding that, if the principles relating to tax
immunity were applied, the State would prevail, the Court rejected
their relevance, saying:
"But there is no such limitation upon the plenary power to
regulate commerce. The state can no more deny the power if its
exercise has been authorized by Congress than can an
at 297 U. S. 185
The italicized statement seems to me demonstrably wrong, and I
believe it is recognized as being wrong by the Court's opinion
today, with its reference to the fact that the Tenth Amendment "is
not without significance." Ante
at 421 U. S. 547
n. 7. In explaining why it is wrong, it is useful to explore
further the situation of an individual confronted with Commerce
Clause regulation. Such an individual who attacks an Act of
Congress on the ground
Page 421 U. S. 553
that it is not within congressional authority under the Commerce
Clause asserts only a claim of lack of legislative power. Under
cases such as The Shreveport Rate Cases, supra,
Wickard v. Filburn, 317 U. S. 111
(1942), and Heart of Atlanta Motel, Inc. v. United States,
379 U. S. 241
(1964), this individual's claim is ordinarily very difficult to
sustain. But an individual who attacks an Act of Congress,
justified under the Commerce Clause, on the ground that it
infringes his rights under, say, the First or Fifth Amendment, is
asserting an affirmative constitutional defense of his own, one
which can limit the exercise of power which is otherwise expressly
delegated to Congress. That the latter claim is of greater force,
and may succeed when the former will fail, is well established.
See, e.g., Leary v. United States, 395 U. S.
(1969); United States v. Jackson,
390 U. S. 570
(1968); United States v. Cardiff, 344 U.
(1952); Tot v. United States,
319 U. S. 463
In this case, as well as in Wirtz
and United States
the State is not simply asserting an absence of
congressional legislative authority, but rather is asserting an
affirmative constitutional right, inherent in its capacity as a
State, to be free from such congressionally asserted authority.
Whether such a claim on the part of a State should prevail against
congressional authority is quite a different question, but it is
surely no answer to the claim to say that a "state can no more deny
the power if its exercise has been authorized by Congress than can
an individual." United States v. California, supra,
297 U. S. 185
Such an answer is simply a denial of the inherent affirmative
constitutional limitation on congressional power which I believe
the States possess.
It is not apparent to me why a State's immunity from the plenary
authority of the National Government to tax, United States v.
Butler, 297 U. S. 1
Page 421 U. S. 554
have been thought by the California court to be any higher on
the scale of constitutional values than is a State's claim to be
free from the imposition of Congress' plenary authority under the
Commerce Clause. Especially is this true because the immunity from
taxation has no explicit constitutional source, and appears to rest
solely on a concept of constitutional federalism which should
likewise limit federal power under the Commerce Clause. Indeed, if
history and precedent offered no guide, I would think, as a matter
of logic, that it would be less of an encumbrance upon a State to
pay a nondiscriminatory tax imposed by the Federal Government than
it would be to comply with nondiscriminatory regulation enacted by
that Government. Where the Federal Government seeks only revenue
from the State, the State may provide the revenue and make up the
difference where it chooses among its sources of revenue or demands
for expenditure. But where the Federal Government seeks not merely
to collect revenue as such, but to require the State to pay out its
moneys to individuals at particular rates, not merely state
revenues, but also state policy choices suffer.
Much of the law of intergovernmental tax immunity to which the
Court referred in United States v. California, supra,
gone the way of all flesh, and the scope of the then-prevalent
doctrine that the Federal Government might not impose a tax on an
"instrumentality" of a State was shortly modified. See Graves
v. New York ex rel. O'Keefe, 306 U. S. 466
(1939), which made clear that today's Congress may impose an income
tax on state employees. [Footnote
] Several years after the Graves
Page 421 U. S. 555
however, the Court had occasion to discuss the question of
intergovernmental tax immunity in New York v. United
States, 326 U. S. 572
(1946). There was no opinion for the Court; Mr. Justice
Frankfurter, joined by Mr. Justice Rutledge, delivered the judgment
of the Court and an opinion stating that, with limited exceptions,
the federal taxing power could be imposed on a State so long as it
was not exercised in a discriminatory manner. But a majority of the
Court refused to adopt this formulation of the test. Mr. Chief
Justice Stone, who was the author of the Court's opinion in
United States v. California, supra,
spoke for himself and
Justices Reed, Murphy, and Burton in stating that
"we are not prepared to say that the national government may
constitutionally lay a nondiscriminatory tax on every class of
property and activities of States and individuals alike."
326 U.S. at 326 U. S. 586
MR. JUSTICE DOUGLAS, joined by Mr. Justice Black, dissented
outright, and thought that the authority of Congress to tax
revenues obtained by New York from the business of selling its
mineral water could not
Page 421 U. S. 556
be constitutionally sustained. Thus, six Members of the Court,
as it was then constituted, thought that the principles of
federalism reflected in the Tenth Amendment to the Constitution did
not stop with merely prohibiting Congress from discriminating
between States and other taxable entities in the exercise of its
In his concurring opinion, Mr. Chief Justice Stone expressed the
matter as follows:
"[A] federal tax which is not discriminatory as to the subject
matter may nevertheless so affect the State, merely because it is a
State that is being taxed, as to interfere unduly with the State's
performance of its sovereign functions of government. The
counterpart of such undue interference has been recognized since
Marshall's day as the implied immunity of each of the dual
sovereignties of our constitutional system from taxation by the
other. . . ."
". . . [I]t is plain that there may be nondiscriminatory taxes
which, when laid on a State, would nevertheless impair the
sovereign status of the State quite as much as a like tax imposed
by a State on property or activities of the national government.
Mayo v. United States, 319 U. S. 441
, 319 U. S.
-448. This is not because the tax can be regarded as
discriminatory, but because a sovereign government is the taxpayer,
and the tax, even though nondiscriminatory, may be regarded as
infringing its sovereignty."
326 U.S. at 326 U. S.
The Court's decision in Hans v. Louisiana, 134 U. S.
(1890), offers impressive authority for the principle
that the States as such were regarded by the Framers of the
Constitution as partaking of many attributes of sovereignty quite
apart from the provisions of the Tenth Amendment. The familiar
history of this Court's
Page 421 U. S. 557
decision in Chisholm v.
2 Dall. 419 (1793), and the subsequent
reaction which gave rise to the enactment of the Eleventh
Amendment, has been told and retold. Monaco v.
Mississippi, 292 U. S. 313
292 U. S.
-325 (1934); Edelman v. Jordan, 415 U.
, 415 U. S.
-662 (1974). But the Eleventh Amendment, by its
terms, forbade the federal courts only to entertain suits by the
citizens of one State against another State. Hans v.
involved a suit by citizens of Louisiana against
Louisiana, and was therefore not within the literal language of the
Eleventh Amendment. Nevertheless this Court, after canvassing the
understanding of the Framers of the Constitution and the
controversial decision in Chisholm,
that such an action would not lie, saying:
"It is not necessary that we should enter upon an examination of
the reason or expediency of the rule which exempts a sovereign
State from prosecution in a court of justice at the suit of
individuals. This is fully discussed by writers on public law. It
is enough for us to declare its existence."
134 U.S. at 134 U. S. 21
As it was not the Eleventh Amendment, by its terms, which
justified the result in Hans,
it is not the Tenth
Amendment, by its terms, that prohibits congressional action which
sets a mandatory ceiling on the wages of all state employees. Both
Amendments are simply examples of the understanding of those who
drafted and ratified the Constitution that the States were
sovereign in many respects, and that, although their legislative
authority could be superseded by Congress in many areas where
Congress was competent to act, Congress was nonetheless not free to
deal with a State as if it were just another individual or business
enterprise subject to regulation.
I would hold that the activity of the State of California
Page 421 U. S. 558
in operating a railroad was so unlike the traditional
governmental activities of a State that Congress could subject it
to the Federal Safety Appliance Act. But the operation of schools,
hospitals, and like facilities involved in Maryland v.
is an activity sufficiently closely allied with
traditional state functions that the wages paid by the State to
employees of such facilities should be beyond Congress' commerce
authority. Such a distinction would undoubtedly present gray areas
to be marked out on a case-by-case basis, as is true in applying
any number of other constitutional principles. But today's case, in
which across-the-board wage and salary ceilings are sustained with
respect to virtually all state employees, is clearly on the
forbidden side of that line. [Footnote
] Congress may well, in time of declared war, have
extraordinary authority to regulate activities in the national
interest which could not be reached by the commerce power alone.
Cf. Yakus v. United States, 321 U.
Page 421 U. S. 559
(1944). Congress may well be empowered under the legislative
authority granted to it by the Fourteenth and Fifteenth Amendments
to the Constitution to impose significant restrictions on what
would otherwise be thought state prerogatives. South Carolina
v. Katzenbach, 383 U. S. 301
(1966). But I do not believe that the Commerce Clause alone is
sufficient to sustain the broad and sweeping federal regulation of
the maximum salaries which Ohio may pay its employees, nor do I
believe that the showing of national emergency made here is
sufficient to make this case one in which congressional authority
may be derived from sources other than the Commerce Clause.
The overruling of a case such as Maryland v. Wirtz
quite obviously should not be lightly undertaken. But we have the
authority of Mr. Chief Justice Taney, dissenting, in
7 How. 283, 48 U. S. 470
(1849); of Mr. Justice Brandeis, dissenting, in Burnet v.
Coronado Oil & Gas Co., 285 U. S. 393
285 U. S. 405
(1932); and of MR. JUSTICE DOUGLAS, dissenting, in New York v.
326 U.S. at 326 U. S.
-591, for the proposition that important decisions of
constitutional law are not subject to the same command of stare
as are decisions of statutory questions. Surely there
can be no more fundamental constitutional question than that of the
intention of the Framers of the Constitution as to how authority
should be allocated between the National and State Governments. I
believe that reexamination of the issue decided in Maryland v.
would lead us to the conclusion that the judgment of the
Temporary Emergency Court of Appeals in this case should be
It may seem but a short step from Congress' requiring the
employee of a State to pay a percentage of his salary to the
Federal Government in the form of an income tax, on the one hand,
to Congress' using its Commerce Clause authority to direct the
State to pay its employees no more than a certain amount of money
in the form of salaries and wages. But rough similarities in
practical effect do not necessarily lead to similar holdings on the
question of constitutional power. Where Congress taxes the income
of a state employee, its command is addressed to the employee alone
after he has performed his work for the State and received his pay
therefor. Under the regulations which the Court upholds today, the
State of Ohio is itself told that it may not pay more than
specified amounts to its various employees. Though the economic
effect of the two measures on the State may be, in some respects,
similar, the fact that the command of Congress operates directly
upon the State in the latter situation is of significance in a
system of constitutional federalism such as ours. The Court in
Helvering v. Gerhardt, 304 U. S. 405
304 U. S. 424
(1938), was careful to distinguish between the imposition of a
federal income tax on the New York Port Authority, a question which
it reserved, and such a tax upon an employee of the Authority, a
question which it decided in favor of taxability.
As noted earlier in this dissent, the Government contends that
United States v. California, 297 U.
(1936), makes it impossible to distinguish
on the basis that the employees in that case were
performing primarily "proprietary" functions. California may
certainly be read as rejecting not only this distinction, but also
any other among activities conducted by a State, and as enunciating
a rule that all state activities may be regulated by Congress. But
such a sweeping doctrine is rejected even by the Court's present
opinion, which, if it means what it says, must concede that a line
will have to be drawn somewhere. It is conceivable that the
traditional distinction between "governmental" and "proprietary"
activities might in some form prove useful in such linedrawing. The
distinction suggested in New York v. United States,
326 U. S. 572
(1946), between activities traditionally undertaken by the State
and other activities, might also be of service, although it too was
specifically rejected in California. See
at 297 U. S. 185
Here, of course, it is unnecessary to engage in the business of
linedrawing, since the regulation in question sweeps within its
ambit virtually all state employees regardless of their tasks.