Why Public Sector Unions: Are Federal Labor Laws Applicable To States As States?
One of the unexplored issues (at least in my internet travels) regarding the importance of public sector unions is the issue of whether federal labor laws can be applied to States and their subdivisions. One of the principal arguments, I would posit, for the critical importance of public sector unions is the strong possibility that federal labor laws do not apply to States (and their subdivisions) as States. That is, to States as employers. Absent federal standards, public sector employees, more so than even private sector employees, strongly rely on their unions to guarantee their rights. In order to flesh out this proposition, a review of the pertinent case law is in order.
In 1976, relying on principles of federalism, the Supreme Court, in National League of Cities v. Usery, declared that federal labor laws can not apply to the States as employers:
The original Fair Labor Standards Act passed in 1938 specifically excluded the States and their political subdivisions from its coverage. [n6] In 1974, however, Congress enacted the most recent of a series of broadening amendments to the Act. By these amendments, Congress has extended the minimum wage and maximum hour provisions to almost all public employees employed by the States and by their various political subdivisions. Appellants in these cases include individual cities and States, the National League of Cities, and the National Governors' Conference; [n7] they brought an action in the District [p837] Court for the District of Columbia which challenged the validity of the 1974 amendments. They asserted, in effect, that, when Congress sought to apply the Fair Labor Standards Act provisions virtually across the board to employees of state and municipal governments it "infringed a constitutional prohibition" running in favor of the States as states. The gist of their complaint was not that the conditions of employment of such public employees were beyond the scope of the commerce power had those employees been employed in the private sector, but that the established constitutional doctrine of intergovernmental immunity consistently recognized in a long series of our cases affirmatively prevented the exercise of this authority in the manner which Congress chose in the 1974 amendments. [. . .] Our examination of the effect of the 1974 amendments, as sought to be extended to the States and their political subdivisions, satisfies us that both the minimum wage and the maximum hour provisions will impermissibly interfere with the integral governmental functions of these bodies. [. . .] This exercise of congressional authority does not comport with the federal system of government embodied in the Constitution. We hold that, insofar as the challenged amendments operate to directly displace the States' freedom to structure integral operations in areas of traditional governmental functions, they are not within the authority granted Congress by Art. I, § 8, cl. 3
Subsequently, Usery was limited by Garcia v. San Antonio Transportation Authority:
The Court was confronted with the Usery precedent. Writing for a Court split 5-4, Justice Blackmun wrote:
The present controversy concerns the extent to which SAMTA may be subjected to the minimum wage and overtime requirements of the FLSA. When the FLSA was enacted in 1938, its wage and overtime provisions did not apply to local mass transit employees or, indeed, to employees of state and local governments. §§ 3(d), 13(a)(9), 52 Stat. 1060, 1067. In 1961, Congress extended minimum wage coverage to employees of any private mass transit carrier whose annual gross revenue was not less than $1 million. Fair Labor Standards Amendments of 1961, §§ 2(c), 9, 75 Stat. 65, 71. Five years later, Congress extended FLSA coverage to state and local government employees for the first time by withdrawing the minimum wage and overtime exemptions from public hospitals, schools, and mass transit carriers whose rates and services were subject to state regulation. Fair Labor Standards Amendments of 1966, §§ 102(a) and (b), 80 Stat. 831. At the same time, Congress eliminated the overtime exemption for all mass transit employees other than drivers, operators, and conductors. § 206(c), 80 Stat. 836. The application of the FLSA to public schools and hospitals was ruled to be within Congress' power under the Commerce Clause. Maryland v. Wirtz, 392 U.S. 183 (1968).
The FLSA obligations of public mass transit systems like SATS were expanded in 1974 when Congress provided for the progressive repeal of the surviving overtime exemption for mass transit employees. Fair Labor Standards Amendments of 1974, § 21(b), 88 Stat. 68. Congress simultaneously brought the States and their subdivisions further within the ambit of the FLSA by extending FLSA coverage to virtually all state and local government employees. §§ 6(a)(1) and (6), 88 Stat. 58, 60, 29 U.S.C. §§ 203(d) and (x). SATS complied with the FLSA's overtime requirements until 1976, when this Court, in National League of Cities, overruled Maryland v. Wirtz and held that the FLSA could not be [p534] applied constitutionally to the "traditional governmental functions" of state and local governments. Four months after National League of Cities was handed down, SATS informed its employees that the decision relieved SATS of its overtime obligations under the FLSA. [n3]
Any constitutional exemption from the requirements of the FLSA therefore must rest on SAMTA's status as a governmental entity, rather than on the "local" nature of its operations. The prerequisites for governmental immunity under National League of Cities were summarized by this Court in Hodel, supra. Under that summary, four conditions must be satisfied before a state activity may be deemed immune from a particular federal regulation under the Commerce Clause. First, it is said that the federal statute at issue must regulate "the ‘states as States.'" Second, the statute must "address matters that are indisputably ‘attribute[s] of state sovereignty.'" Third, state compliance with the federal obligation must "directly impair [the States'] ability ‘to structure integral operations in areas of traditional governmental functions.'" Finally, the relation of state and federal interests must not be such that "the nature of the federal interest . . . justifies state submission." 452 U.S. at 287-288, and n. 29, quoting National League of Cities, 426 U.S. at 845, 852, 854. [p538]
The controversy in the present cases has focused on the third Hodel requirement -- that the challenged federal statute trench on "traditional governmental functions." [. . .] We therefore now reject, as unsound in principle and unworkable in practice, a rule of state immunity from federal regulation that turns on a judicial appraisal of whether a [p547] particular governmental function is "integral" or "traditional." Any such rule leads to inconsistent results at the same time that it disserves principles of democratic self-governance, and it breeds inconsistency precisely because it is divorced from those principles. If there are to be limits on the Federal Government's power to interfere with state functions -- as undoubtedly there are -- we must look elsewhere to find them. We accordingly return to the underlying issue that confronted this Court in National League of Cities -- the manner in which the Constitution insulates States from the reach of Congress' power under the Commerce Clause.
The Court enunciated the following standard:
the Framers chose to rely on a federal system in which special restraints on federal power over the States inhered principally in the workings of the National Government itself, rather than in discrete limitations on the objects of federal authority. State sovereign interests, then, are more properly protected by procedural safeguards inherent in the structure of the federal system than by judicially created limitations on federal power. The effectiveness of the federal political process in preserving the States' interests is apparent even today in the course of federal legislation. On the one hand, the States have been able to direct a substantial proportion of federal revenues into their own treasuries in the form of general and program-specific grants in aid.
In short, Garcia said that the political process is all the protection required for federalism purposes. While this seems accurate in reality, subsequent courts have flatly rejected this idea (see, e.g. Printz, Lopez, Seminole Tribe, Alden).That Garcia survives, at least in name, is more likely due to the fact that Congress has largely backed away from imposing regulations on state and local governmental employee relationships.
With that background, the importance of public sector unions becomes patent. If federal laws can not, as I posit the current Supreme Court would state, require that that states abide by federal labor laws (minimum wage, work week restrictions, child labor laws even), then who can defend these policies? Public sector unions, that's who.
Yes, it is true that the political process at the state and local level can also serve this purpose. But consider how well that is working in say, Wisconsin. Or Ohio. Or Florida. Or even New York. If I worked in the public sector, I would not have much confidence in the political process.
I would be fighting for, not only my union, but all public sector unions. After all, if first they come for the teachers, and you do nothing, then they will come for you.
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