National League of Cities v. Usery

Justice Blackmun concurred with the Court, though he expressed reservations: "I am not untroubled," he wrote, "by certain possible implications of the Court's opinion . . . but it seems to me that it adopts a balancing approach, and does not outlaw federal power in areas such as environmental protection, where the federal interest is demonstrably greater" than that of the states. He did not, he wrote, "read the opinion so despairingly as does my Brother Brennan."

The latter offered a sharp dissent, in which Justices Marshall and White joined. Using much of the same material that the Court had cited in its ruling, Brennan found quite a different interpretation. He cited Justice John Marshall, including the latter's opinion in Gibbons, as opposing attempts to curtail Congress's commerce power. Just as the Court had found a lengthy tradition of respect for state authority, Brennan found the same history of honor for the power of Congress.

To Brennan, the meaning of the Tenth Amendment with regard to state commerce power was much less profound than it was to the rest of the Court. "My Brethren do not successfully obscure today's patent usurpation of the role reserved for the political process," he wrote, "by their purported discovery in the Constitution of a restraint derived from sovereignty of the States on Congress' exercise of the commerce power." He cited the Court's observation in United States v. Darby that "the amendment states but a truism that all is retained which has not been surrendered." In this view, the amendment was not saying anything of great import. Rather, it was simply indicating, to make an analogy, that the portion of the glass that is not full is empty--all powers not delegated are reserved.

Brennan concluded by disagreeing with the Court's holding on nearly every item cited, including Fry, Wirtz, and the financial burdens imposed on the states under the FLSA. Given the fact that the 1977 budget recommended the disbursement of $60.5 billion in federal assistance to the states, the largest estimate of cost submitted by the appellants--$1 billion--"pales in comparison." In conclusion, Brennan wrote that "We are left with a catastrophic judicial body blow at Congress' power under the Commerce Clause." There was in this, he held, "an ominous portent of disruption of our constitutional structure."

Justice Stevens also offered a dissenting opinion, though his disagreement was much less dramatic. He thought it was wrong to say that "the Federal Government may not interfere with a sovereign State's inherent right to pay a substandard wage to the janitor at the state capitol" when it could impose all manner of other requirements on the state and the janitor, including "[forbidding] him from burning too much soft coal in the capitol furnace, from dumping untreated refuse in an adjacent waterway . . . or from driving either [his] truck or the Governor's limousine over 55 miles an hour." This did not mean he disagreed with the basic viewpoint of the appellants, he indicated, but "my disagreement with the wisdom of this legislation may not . . . affect my judgment with respect to its validity."