National League of Cities v. Usery : the Supreme Court and contemporary federalism

The purpose of this thesis is to analyze the development of American federalism in three cases arising under the Fair Labor Standards Act. This objective is pursued by an examination of oral arguments and appellant briefs as well as the opinions of the Supreme Court. By this method it is possible to isolate the predominate theories of federalism in United States v. Darby, Maryland v. Wirtz, and National League of Cities v. Usery. The focus is on the Usery case and its significance in the Court's effort to redefine the parameters of the federal system.

From Gibbons v. Ogden through United States v. Darby and Maryland v. Wirtz, the trend of constitutional interpretation has enhanced the power of the National government to regulate interstate commerce. Consequently, many observers accepted the view that the reserved powers of the states were negligible and that the states had become little more than administrative departments of the National government. The majority opinion in National League of Cities v. Usery represents an attempt to reevaluate the power relationship between the National government and state governments in the federal system.

In Maryland v. Wirtz and National League of Cities v. Usery the arguments of counsel are practically identical. Appellants in both cases maintain that the Federal government could not regulate state employees under the commerce power due to considerations of federalism. The Government, on the other hand, asserted the plenary nature of the power of Congress under the commerce clause and maintained that the states were not exempt from an otherwise valid regulation of commerce. The outcome of Usery, however, was diametrically opposed to, and in fact overruled, Wirtz.

Other factors might have been relevant in the switch in the Supreme Court's position in the eight years between Wirtz and Usery. In the 1970's there has been a reversal of the trend toward National dominance prevalent in the preceding three decades. The change in Court personnel has reflected this trend. As a coordinate branch of government, the Supreme Court is exposed to often-subtle political and economic pressures. Thus, a change in the political and economic environment might also have been influential.

At this writing (August 1978) it is still too early to assess the impact of the Usery decision on the nature of federalism. Cases and commentary in the aftermath of Usery indicate that it will probably be construed narrowly. The Burger Court, however, seems to be willing to give greater latitude to state initiatives and to be solicitous of a wider range of cooperative effort among all levels of government. Reflecting this inclination, the Usery case might be viewed as an attempt to revitalize federalism by asserting that the states must once again become viable partners within the system.