Opinion

JUSTICE O'CONNOR, with whom JUSTICE POWELL and JUSTICE REHNQUIST join, dissenting.

The Court today surveys the battle scene of federalism and sounds a retreat. Like JUSTICE POWELL, I would prefer to hold the field and, at the very least, render a little aid to the wounded. I join JUSTICE POWELL's opinion. I also write separately to note my fundamental disagreement with the majority's views of federalism and the duty of this Court.

The Court overrules National League of Cities v. Usery, 426 U. S. 833 (1976), on the grounds that it is not "faithful to the role of federalism in a democratic society." Ante at 469 U. S. 546. "The essence of our federal system," the Court concludes,

is that, within the realm of authority left open to them under the Constitution, the States must be equally free to engage in any activity that their citizens choose for the common weal....

Ibid. National League of Cities is held to be inconsistent with this narrow view of federalism because it attempts to protect only those fundamental aspects of state sovereignty that are essential to the States' separate and independent existence, rather than protecting all state activities "equally."

In my view, federalism cannot be reduced to the weak "essence" distilled by the majority today. There is more to federalism than the nature of the constraints that can be imposed on the States in "the realm of authority left open to them by the Constitution." The central issue of federalism, of course, is whether any realm is left open to the States by the Constitution -whether any area remains in which a State may act free of federal interference. "The issue... is whether the federal system has any legal substance, any core of constitutional right that courts will enforce." C. Black, Perspectives in Constitutional Law 30 (1963). The true "essence" of federalism is that the States, as States, have legitimate interests which the National Government is bound to respect even though its laws are supreme. Younger v. Harris, 401 U. S. 37, 401 U. S. 44 (1971). If federalism so conceived and so carefully cultivated by the Framers of our Constitution is to remain meaningful, this Court cannot abdicate its constitutional responsibility to oversee the Federal Government's compliance with its duty to respect the legitimate interests of the States.

Due to the emergence of an integrated and industrialized national economy, this Court has been required to examine and review a breathtaking expansion of the powers of Congress. In doing so, the Court correctly perceived that the Framers of our Constitution intended Congress to have sufficient power to address national problems. But the Framers were not single-minded. The Constitution is animated by an array of intentions. EEOC v. Wyoming, 460 U. S. 226, 460 U. S. 265 -266 (1983) (POWELL, J., dissenting). Just as surely as the Framers envisioned a National Government capable of solving national problems, they also envisioned a republic whose vitality was assured by the diffusion of power not only among the branches of the Federal Government, but also between the Federal Government and the States. FERC v. Mississippi, 456 U. S. 742, 456 U. S. 790 (1982) (O'CONNOR, J., dissenting). In the 18th century, these intentions did not conflict, because technology had not yet converted every local problem into a national one. A conflict has now emerged, and the Court today retreats rather than reconcile the Constitution's dual concerns for federalism and an effective commerce power.

We would do well to recall the constitutional basis for federalism and the development of the commerce power which has come to displace it. The text of the Constitution does not define the precise scope of state authority other than to specify, in the Tenth Amendment, that the powers not delegated to the United States by the Constitution are reserved to the States. In the view of the Framers, however, this did not leave state authority weak or defenseless; the powers delegated to the United States, after all, were "few and defined." The Federalist No. 45, p. 313 (J. Cooke ed.1961). The Framers' comments indicate that the sphere of state activity was to be a significant one, as JUSTICE POWELL's opinion clearly demonstrates, ante at 469 U. S. 570 -572. The States were to retain authority over those local concerns of greatest relevance and importance to the people. The Federalist No. 17, pp. 106-108 (J. Cooke ed.1961). This division of authority, according to Madison, would produce efficient government and protect the rights of the people:

In a single republic, all the power surrendered by the people is submitted to the administration of a single government, and usurpations are guarded against by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence, a double security arises to the rights of the people. The different governments will controul each other at the same time that each will be controuled by itself.

The Federalist No. 51, pp. 350351 (J. Cooke ed.1961). See Nagel, Federalism as a Fundamental Value: National League of Cities in Perspective, 1981 S.Ct.Rev. 81, 88.

Of course, one of the "few and defined" powers delegated to the National Congress was the power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." U.S.Const., Art. I, § 8, cl. 3. The Framers perceived the interstate commerce power to be important but limited, and expected that it would be used primarily, if not exclusively, to remove interstate tariffs and to regulate maritime affairs and large-scale mercantile enterprise. See Abel, The Commerce Clause in the Constitutional Convention and in Contemporary Comment, 25 Minn.L.Rev. 432 (1941). This perception of a narrow commerce power is important not because it suggests that the commerce power should be as narrowly construed today. Rather, it explains why the Framers could believe the Constitution assured significant state authority even as it bestowed a range of powers, including the commerce power, on the Congress. In an era when interstate commerce represented a tiny fraction of economic activity and most goods and services were produced and consumed close to home, the interstate commerce power left a broad range of activities beyond the reach of Congress.

In the decades since ratification of the Constitution, interstate economic activity has steadily expanded. Industrialization, coupled with advances in transportation and communications, has created a national economy in which virtually every activity occurring within the borders of a State plays a part. The expansion and integration of the national economy brought with it a coordinate expansion in the scope of national problems. This Court has been increasingly generous in its interpretation of the commerce power of Congress, primarily to assure that the National Government would be able to deal with national economic problems. Most significantly, the Court in NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1 (1937), and United States v. Darby, 312 U. S. 100 (1941), rejected its previous interpretations of the commerce power which had stymied New Deal legislation. Jones & Laughlin and Darby embraced the notion that Congress can regulate intrastate activities that affect interstate commerce as surely as it can regulate interstate commerce directly. Subsequent decisions indicate that Congress, in order to regulate an activity, needs only a rational basis for a finding that the activity affects interstate commerce. See Heart of Atlanta Motel, Inc. v. United States, 379 U. S. 241, 379 U. S. 258 (1964). Even if a particular individual's activity has no perceptible interstate effect, it can be reached by Congress through regulation of that class of activity in general as long as that class, considered as a whole, affects interstate commerce. Fry v. United States, 421 U. S. 542 (1975); Perez v. United States, 402 U. S. 146 (1971).

Incidental to this expansion of the commerce power, Congress has been given an ability it lacked prior to the emergence of an integrated national economy. Because virtually every state activity, like virtually every activity of a private individual, arguably "affects" interstate commerce, Congress can now supplant the States from the significant sphere of activities envisioned for them by the Framers. It is in this context that recent changes in the workings of Congress, such as the direct election of Senators and the expanded influence of national interest groups, see ante at 469 U. S. 544, n. 9 (POWELL, J., dissenting), become relevant. These changes may well have lessened the weight Congress gives to the legitimate interests of States as States. As a result, there is now a real risk that Congress will gradually erase the diffusion of power between State and Nation on which the Framers based their faith in the efficiency and vitality of our Republic.

It would be erroneous, however, to conclude that the Supreme Court was blind to the threat to federalism when it expanded the commerce power. The Court based the expansion on the authority of Congress, through the Necessary and Proper Clause, "to resort to all means for the exercise of a granted power which are appropriate and plainly adapted to the permitted end." United States v. Darby, supra, at 312 U. S. 124. It is through this reasoning that an intrastate activity "affecting" interstate commerce can be reached through the commerce power. Thus, in United States v. Wrightwood Dairy Co., 315 U. S. 110, 315 U. S. 119 (1942), the Court stated:

The commerce power is not confined in its exercise to the regulation of commerce among the states. It extends to those activities intrastate which so affect interstate commerce, or the exertion of the power of Congress over it, as to make regulation of them appropriate means to the attainment of a legitimate end, the effective execution of the granted power to regulate interstate commerce. See McCulloch v. Maryland, 4 Wheat. 316, 17 U. S. 421....

United States v. Wrightwood Dairy Co. was heavily relied upon by Wickard v. Filburn, 317 U. S. 111, 317 U. S. 124 (1942), and the reasoning of these cases underlies every recent decision concerning the reach of Congress to activities affecting interstate commerce. See, e.g., Fry v. United States, supra, at 421 U. S. 547 ; Perez v. United States, supra, at 402 U. S. 151 -152; Heart of Atlanta Motel, Inc. v. United States, supra, at 379 U. S. 258 -259.

It is worth recalling the cited passage in McCulloch v. Maryland, 4 Wheat. 316, 17 U. S. 421 (1819), that lies at the source of the recent expansion of the commerce power. "Let the end be legitimate, let it be within the scope of the constitution," Chief Justice Marshall said,

and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.

(Emphasis added.) The spirit of the Tenth Amendment, of course, is that the States will retain their integrity in a system in which the laws of the United States are nevertheless supreme. Fry v. United States, supra, at 547, n. 7.

It is not enough that the "end be legitimate;" the means to that end chosen by Congress must not contravene the spirit of the Constitution. Thus, many of this Court's decisions acknowledge that the means by which national power is exercised must take into account concerns for state autonomy. See, e.g., Fry v. United States, supra, at 421 U. S. 547, n. 7; New York v. United States, 326 U. S. 572, 326 U. S. 586 -587 (1946) (Stone, C.J., concurring); NLRB v. Jones & Laughlin Steel Corp., supra, at 301 U. S. 37 ("Undoubtedly, the scope of this [commerce] power must be considered in the light of our dual system of government, and may not be extended so as to embrace effects upon interstate commerce so indirect and remote that to embrace them, in view of our complex society, would effectually obliterate the distinction between what is national and what is local and create a completely centralized government"); Santa Cruz Fruit Packing Co. v. NLRB, 303 U. S. 453, 303 U. S. 466 -467 (1938). See also Sandalow, Constitutional Interpretation, 79 Mich.L.Rev. 1033, 1055 (1981) ("The question, always, is whether the exercise of power is consistent with the entire Constitution, a question that can be answered only by taking into account, so far as they are relevant, all of the values to which the Constitution -as interpreted over time gives expression"). For example, Congress might rationally conclude that the location a State chooses for its capital may affect interstate commerce, but the Court has suggested that Congress would nevertheless be barred from dictating that location because such an exercise of a delegated power would undermine the state sovereignty inherent in the Tenth Amendment. Coyle v. Oklahoma, 221 U. S. 559, 221 U. S. 565 (1911). Similarly, Congress, in the exercise of its taxing and spending powers, can protect federal savings and loan associations, but if it chooses to do so by the means of converting quasi-public state savings and loan associations into federal associations, the Court has held that it contravenes the reserved powers of the States because the conversion is not a reasonably necessary exercise of power to reach the desired end. Hopkins Federal Savings & Loan Assn. v. Cleary, 296 U. S. 315 (1935). The operative language of these cases varies, but the underlying principle is consistent: state autonomy is a relevant factor in assessing the means by which Congress exercises its powers.

This principle requires the Court to enforce affirmative limits on federal regulation of the States to complement the judicially crafted expansion of the interstate commerce power. National League of Cities v. Usery represented an attempt to define such limits. The Court today rejects National League of Cities and washes its hands of all efforts to protect the States. In the process, the Court opines that unwarranted federal encroachments on state authority are and will remain " horrible possibilities that never happen in the real world.'" Ante at 469 U. S. 556, quoting New York v. United States, supra, at 326 U. S. 583 (opinion of Frankfurter, J.). There is ample reason to believe to the contrary.

The last two decades have seen an unprecedented growth of federal regulatory activity, as the majority itself acknowledges. Ante at 469 U. S. 544 -545, n. 10. In 1954, one could still speak of a "burden of persuasion on those favoring national intervention" in asserting that

National action has... always been regarded as exceptional in our polity, an intrusion to be justified by some necessity, the special, rather than the ordinary case.

Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 Colum.L.Rev. 543, 544-545 (1954). Today, as federal legislation and coercive grant programs have expanded to embrace innumerable activities that were once viewed as local, the burden of persuasion has surely shifted, and the extraordinary has become ordinary. See Engdahl, Sense and Nonsense About State Immunity, 2 Constitutional Commentary 93 (1985). For example, recently the Federal Government has, with this Court's blessing, undertaken to tell the States the age at which they can retire their law enforcement officers, and the regulatory standards, procedures, and even the agenda which their utilities commissions must consider and follow. See EEOC v. Wyoming, 460 U. S. 226 (1983); FERC v. Mississippi, 456 U. S. 742 (1982). The political process has not protected against these encroachments on state activities, even though they directly impinge on a State's ability to make and enforce its laws. With the abandonment of National League of Cities, all that stands between the remaining essentials of state sovereignty and Congress is the latter's underdeveloped capacity for self-restraint.

The problems of federalism in an integrated national economy are capable of more responsible resolution than holding that the States as States retain no status apart from that which Congress chooses to let them retain. The proper resolution, I suggest, lies in weighing state autonomy as a factor in the balance when interpreting the means by which Congress can exercise its authority on the States as States. It is insufficient, in assessing the validity of congressional regulation of a State pursuant to the commerce power, to ask only whether the same regulation would be valid if enforced against a private party. That reasoning, embodied in the majority opinion, is inconsistent with the spirit of our Constitution. It remains relevant that a State is being regulated, as National League of Cities and every recent case have recognized. See EEOC v. Wyoming, supra; Transportation Union v. Long Island R. Co., 455 U. S. 678, 455 U. S. 684 (1982); Hodel v. Virginia Surface Mining & Recl. Assn., 452 U. S. 264, 452 U. S. 287 -288 (1981); National League of Cities, 426 U.S. at 426 U. S. 841 -846. As far as the Constitution is concerned, a State should not be equated with any private litigant. Cf. Nevada v. Hall, 440 U. S. 410, 440 U. S. 428 (1979) (BLACKMUN, J., dissenting) (criticizing the ability of a state court to treat a sister State no differently than a private litigant). Instead, the autonomy of a State is an essential component of federalism. If state autonomy is ignored in assessing the means by which Congress regulates matters affecting commerce, then federalism becomes irrelevant simply because the set of activities remaining beyond the reach of such a commerce power "may well be negligible." Ante at 469 U. S. 545.

It has been difficult for this Court to craft bright lines defining the scope of the state autonomy protected by National League of Cities. Such difficulty is to be expected whenever constitutional concerns as important as federalism and the effectiveness of the commerce power come into conflict. Regardless of the difficulty, it is and will remain the duty of this Court to reconcile these concerns in the final instance. That the Court shuns the task today by appealing to the "essence of federalism" can provide scant comfort to those who believe our federal system requires something more than a unitary, centralized government. I would not shirk the duty acknowledged by National League of Cities and its progeny, and I share JUSTICE REHNQUIST's belief that this Court will, in time, again assume its constitutional responsibility.

I respectfully dissent.