EEOC v. WYOMING

Transcript: 

ORAL ARGUMENT OF REX E. LEE, ESQ. ON BEHALF OF THE APPELLANT

Chief Justice Burger: We will hear arguments next in EEOC against Wyoming.

General, I think you may proceed whenever you're ready.

Mr. Lee: Mr. Chief Justice, and may it please the Court:

The Age Discrimination in Employment Act prohibits the federal government, with some exceptions, from employment discrimination based on age, regardless of the employee's age; and prohibits other employers engaged in interstate commerce from such discrimination against employees between the ages of 40 and 70.

At issue in this case is the constitutionality of that provision of the 1974 amendment to that Act, which extended provisions to state and local government employees.

Bill Crump, who was employed as a district game supervisor by the Wyoming Game and Fish Department was forced to retire at age 55, pursuant to a Wyoming statute which, with some exceptions, requires the retirement of all Game and Fish Department employees at age 55.

Mr. Crump filed a charge of unlawful age discrimination with the Equal Employment Opportunity Commission, which in turn filed this action in the United States District Court for the District of Wyoming seeking declaratory relief, back pay and liquidated damages for persons adversely affected by the state's retirement policy.

The district court granted the state's motion to dismiss on 10th Amendment, National League of Cities and Towns versus Usery grounds.

Because the case comes to this Court in the posture of a granted motion to dismiss, there is no evidence in this record that either Bill Crump individually or Wyoming game wardens 55 years old as a group are, in fact, less fit to perform their duties because of the fact that they have turned 55.

Unidentified Justice: Do you recall, Mr. Solicitor General, whether in Murgia there was any subjective evidence with respect to capacity to perform the job?

Mr. Lee: I believe there was.

Unidentified Justice: In relation to the particular--

Mr. Lee: To Mr. Murgia.

Unidentified Justice: --or men under a particular age?

Mr. Lee: The evidence in that case, as I recall, was that there was a general deterioration of certain physical abilities that were related to capacity to perform as members of the uniformed police force.

And the evidence similarly was that as to Mr. Murgia, whatever his name was, that it had not happened in his case.

Congress's congressional authority to extend the Age Discrimination in Employment Act to state and local governments can be found in either of two separate sources; the Commerce clause and Section V of the 14th Amendment.

I will discuss each of them separately.

With regard to the Commerce clause, the issue is whether the state of Wyoming has satisfied each of the three hurdles plus the balancing test specified by this Court in National League of Cities and Towns versus Usery and Hodel versus Virginia Surface Mining.

It is common ground that the ADEA regulates the states as states.

But beyond that, Wyoming has not made its case and cannot.

The reasons, which are spelled out in more detail, can be best summarized and put in most helpful perspective by examining just what it is that Wyoming seeks to do with its mandatory retirement program, and the impact of Congress's statute on the achievement of that objective.

The state itself has identified its goal.

It is, and I'm quoting from the state's brief,

"To assure the physical preparedness of Wyoming game wardens to perform their duties. "

The only effect of the congressional requirement on that concededly proper state goal is to require a tighter fit between the goal and the means for achieving it.

There are two basic approaches to the problem of eliminating from the work force those whose age impedes effective performance.

The first is a presumptive group approach, in which all members of the class are automatically swept out, notwithstanding the fact that everyone recognizes, as was true in Murgia, that some members of that group are under no age disability.

The advantage of this concededly over-inclusive approach is that it's easier to administer, and the court held in Murgia that it satisfies the rational basis test.

The other approach is to determine on an individual basis those particular persons who are and those who are not less able to perform because of age.

The starting point for analysis is that Congress has not prohibited the group approach.

The ADEA permits the mandatory retirement of groups as groups, rather than individuals as individuals, which of course is always available to the state, so long as the state can show that in fact, age is a bona fide occupational qualification for the group to which the dragnet is to be applied.

The key element in proving a bona fide occupational qualification, according to the test that has been approved by almost all of the federal courts that have faced the issue, is proof that all or substantially all persons beyond the designated age are unable to perform the job safely and effectively.

Now, the sensible premise of this requirement is that if all or almost all the members of the group share the disability, then the group approach is appropriate to identify the disability.

Age is then a proxy for disability, because by hypothesis, it is shared by virtually all of the members of the group.

Therefore, under the ADEA, the state's very proper goal of weeding out the age-impaired from its work force can be achieved by either of two means.

One, a mandatory retirement program applicable to all members of the group if the state can show that, in fact, as to that group, the approach does identify the age-impaired with sufficient precision as to all members of the group.

Unidentified Justice: General Lee, the Congress of the United States itself has imposed a mandatory retirement age for similarly situated federal personnel, as I understand it.

Mr. Lee: Yes.

Unidentified Justice: Maybe that indicates to us that there is a BFOQ defense for the state as a matter of law.

Mr. Lee: I don't think so, Justice O'Connor.

It is true that Congress, in its 1978 amendment, did consider the possibility of these little enclaves of federal employees whom it was leaving, who were still subject to mandatory requirements.

And there was a proposal at that time to eliminate all of those.

It is fairly apparent from the legislative history, as is spelled out from our brief statements by Representative Spellman and Representative Hawkins.

The reason that that was not done is that some of these enclaves applying to such people as CIA, air traffic controllers, law enforcement and fire fighters and some others, were subject to the jurisdiction, the primary jurisdiction of other committees and they did not want to trounce on their turf before giving them an opportunity to pass on that issue.

But insofar as the constitutional significance is concerned, here I submit is the only significance of the fact that Congress has not extended this rule yet to all federal employees.

Unidentified Justice: Do you recall the case involving the foreign service officers?

Mr. Lee: Vance versus Bradley, yes.

Unidentified Justice: There certainly there was a policy decision by the Congress of the United States that there was an inherent impediment on foreign service officers after reaching the age of 60.

Mr. Lee: That is correct.

Unidentified Justice: Doesn't that relate to the question Justice O'Connor put to you?

Mr. Lee: It certainly does.

And what that shows is that either Congress or any other legislative policy-making body, including the state of Wyoming or including the state of Massachusetts, may conclude by legislative action that mandatory retirement programs are constitutional, or at least that they are required in the interest of the achievement of some state objective.

And if that's all you have, then it passes constitutional muster.

That's Vance versus Bradley, and that's Murgia versus... that's Massachusetts Board of Retirement versus Murgia.

What you have in this case applicable to Wyoming is an additional element, and that is a supervening legislative judgment that in certain kinds of contexts the line should be drawn with greater precision, and for reasons that I will discuss, Congress also has the right to make that decision.

The only argument that can be made against it is that Congress has been under-inclusive, and particularly with respect to Congress's both Commerce clause judgments and also 14th Amendment judgments.

The under-inclusive argument simply has not met with much success.

The most that you can say is that Congress has been somewhat inconsistent, or at least that it has not yet taken the ultimate step that complete consistency might indicate it should.

But that is not sufficient basis to render it unconstitutional.

Unidentified Justice: How would compare the functions of a game warden with the functions of the officer involved in the Murgia and, I think, Feeney cases?

Or with an FBI agent?

Mr. Lee: Or with an FBI agent.

This... I think it would be difficult to imagine a case in which the case for mandatory retirement is less strong than it is in the case of Bill Crump, because he was not just a game warden; he was a game warden supervisor, which was basically a supervisory kind of responsibility.

And for that reason, I think that it does not rise to the same level as the foreign service employees in Vance, or the uniformed police in Murgia.

But that is not the controlling point.

The controlling point is that just as this Court very properly held in Murgia and Vance versus Bradley, that it does not violate the 14th Amendment for a policy-making body to adopt a mandatory retirement program.

And, just as for reasons that I will discuss, it is also constitutional for Congress, pursuant to its commerce and its 14th Amendment powers, to prescribe that in certain contexts to be identified by Congress more is required than the dragnet approach of the broad, overall inclusive approach is also constitutional.

The fact that Congress does both at the same time and that those exist side by side does not affect the constitutionality of either, because the constitutionality of both rests on separate grounds.

That is perhaps best illustrated when we turn to the comparison of the state and federal interests, the final inquiry that is specified by Hodel and Usery.

On the state's side, the state's objective in maintaining a physically fit game warden force is left intact by the ADEA.

The only requirement is that fitness itself must be the inquiry, and unlike the Fair Labor Standards Act, the ADEA does not prescribe to the states any level of expenditures.

The countervailing federal interest by contrast is weighty; it is threefold.

The first is prevention of unnecessary unemployment and lack of productive capacity in areas of endeavor affecting interstate commerce.

Congress had before it evidence which indicated that the magnitude of that loss of productive endeavor throughout the United States was on the order of several billion dollars a year.

The second is the prevention of unnecessary demands on the federal Social Security system.

And third and perhaps most important of all was the prevention of arbitrary discrimination.

Unidentified Justice: General Lee, supposing we just confine ourselves for the moment to the first ground, the interest in the work force, and Congress found that it would be, there's a shortage of jobs and it would be better to have younger men occupying these positions in the long run and that therefore, they imposed a mandatory retirement age of 55 for nationwide, game wardens, law enforcement people throughout the country.

Would that be constitutional?

Mr. Lee: I think it would be constitutional under Murgia.

Unidentified Justice: Wasn't that part of the theory in Congress in putting a limit on the foreign service officers so that there would be an inducement for younger people to get in the system and not have these over-aged men of 60 blocking their progress?

[Laughter]

Mr. Lee: That was a much more powerful argument to me a few years ago than it is right now.

Unidentified Justice: General Lee, in amplification of Justice Stevens' question, supposing that Congress imposed a mandatory retirement age of 50, feeling that it really wanted to get the younger people up there, and Wyoming came with a showing that half of its game wardens were over 50, and therefore, it really was impairing its right to structure its own employment system?

That would be a fair amount closer to the application of the Fair Labor Standards Act.

Mr. Lee: I think it would be a fair amount closer, yes, because it does... while Hodel said that economic impact alone is not sufficient, it certainly is relevant.

And at least you would have an economic impact at that point.

I think the point, Justice Stevens, and Chief Justice Burger, in answer to both of your questions is this.

That these are difficult policy questions.

And they are questions that can be resolved either by the group approach or by the individual approach, and they can be resolved either by the policy that says we need to have more young people in the work force, or by saying we need to preserve the productivity of the older and the more experienced persons.

But Congress can make the judgment either way, and similarly, it can make the judgment and say we're going to take it one step at a time, and we're only going to identify part of the people to whom our policy is going to extend at a time.

Unidentified Justice: But earlier, you said the case was really one of drawing the line with greater precision.

It seems to me the question is, rather, Congress has decided who shall be drawing the line.

Because they say the EEOC shall draw the line, not the state of Wyoming.

Mr. Lee: Well, that's true, that is correct.

But it's consistent with the policy.

That is simply fleshing in the BFOQ, which in turn was set by Congress.

Unidentified Justice: General Lee,--

--Doesn't this action of Congress in the position you're taking reject the concept that is associated with Justice Brandeis that the state should be allowed to have wide latitude in experimenting with various programs?

They might find, for example, that in Florida after a period of time the game wardens and police officers would last longer than they would in the rigorous climate of Wyoming.

Isn't that the whole concept of Brandeis?

Mr. Lee: That's a good point, Mr. Chief Justice, and it does very little if any violence at all to that concept which I fully support, for this reason.

It permits Florida to reach one judgment and Wyoming to reach another with respect to what is a bona fide occupational qualification.

All that Congress has done is to say that you've got to have a more accurate measure for what is the disability than age itself.

That you've got to act on something that's more solidly based than just stereotypes and hunches.

Unidentified Justice: From your description, Congress was a good deal more stringent than that, if the principle of the BFOC is that all or substantially all have to be disabled from performing.

That's a very difficult requirement for any state to show.

So it seems to me that Congress has virtually outlawed any sort of a mandatory retirement age.

Under the ADEA would it be permissible for, say, Wyoming or some other state to say we think that we want to take it on a more individualized basis, but we also think that as you go past 55, you run more of a risk.

So although we require physicals every two years for people under 55, we're going to require physicals every six months for people over 55?

Or would the EEOC say that's age discrimination?

Mr. Lee: I don't know what the EEOC would say, but I would say that it's an acceptable procedure.

Unidentified Justice: Well, that doesn't mean the EEOC wouldn't say it's age discrimination.

Mr. Lee: I agree with that.

Following up on that point, and the extent to which Congress can make these judgments, Bill Crump is a citizen of Wyoming.

Unidentified Justice: Are you personally acquainted with him that you refer to him by name all the time, or is it just kind of an argument tool?

Mr. Lee: Just kind of an argument tool.

[Laughter]

Mr. Crump is not only a citizen of Wyoming; he is also a citizen of the United States.

And the United States has a legitimate interest which is rooted in Congress's Section V 14th Amendment power to insure that if he and other like him are to be removed against their will from the work force for which they have been trained, which they know best, at an age in life which may well represent the point which may be the peak of their professional careers, then at the very least, the state must show that it is acting on something more solid than just anecdotes and stereotypes.

And that brings us to the second source of Congress's authority to pass this statute, which is Section V.

Unidentified Justice: Do you mean by that, Mr. Solicitor General, that Congress was acting on a stereotype with respect to foreign service officers, FBI agents, military people, where they have arbitrary retirement ages, all of them down the line?

Is that a stereotype or is that a considered judgment in how to manage their responsibilities?

Mr. Lee: I don't know.

All I do know is that under this Court's decision in Vance versus Bradley, the court is willing to assume that since that fell within their authority to enact, it was proper for them to make that judgment.

In South Carolina versus Katzenbach, Congress's prohibition against the use of literacy tests was upheld, notwithstanding the fact of this Court's earlier holding that literacy tests themselves do not violate the Constitution.

The principle is that while Congress may not define constitutional rights, it can pass legislation appropriate for the purpose of more effectively enforcing constitutional rights which have been identified by this Court.

This case is identical to South Carolina versus Katzenbach in this respect.

Murgia and Vance versus Bradley make clear that the equal protection clause protects against age discrimination, and Congress has taken steps to enforce that general guarantee.

Unidentified Justice: What statement did Murgia make about the Constitution protecting against age discrimination?

Mr. Lee: It is simply an inference, Justice Rehnquist, from the fact that the court rejected age as a suspect classification, it rejected employment as a fundamental right, and then went on to find that there was a rational basis, all of which is consistent with if the court had, in fact, held that age is not protected by the equal protection clause, all of that analysis would have been surplusage.

Therefore, I say that necessarily the holding is built on the premise that age is protected by the... or, is included within the 14th Amendment.

Unidentified Justice: Do you find that a very satisfying analysis?

Mr. Lee: Oh, indeed, I do.

Unidentified Justice: Doesn't that merely say that age... you assume for purposes of a decision that it's protected, and then go ahead and make the analysis.

Mr. Lee: The court did not say in so many words that age... but if there is any doubt on that,... and may I add that the dozen or so lower federal courts that have considered the issue, the same premise is built in... I see no reason that age should not be protected.

This Court has said that the legal protection clause prohibits all forms of discrimination, and indeed, it should.

And certainly, the argument can be made that there is no crueler form of discrimination thin discrimination based on age precisely because... there comes a point at which it is rational as to all people, but because of that fact, it is more easy to erect the stereotypes in the age context than perhaps any other.

Unidentified Justice: Did I understand you to say, Mr. Solicitor General, that if Congress enacted the statute requiring retirement of all federal law enforcement officers to retire at age 55, that that would be valid?

Mr. Lee: Well, yes.

While that issue is not before the Court,--

Unidentified Justice: Wouldn't that be equally discriminatory?

Mr. Lee: --No, I think that is squarely covered by... it may be discriminatory in the sense that it draws classifications in the sense that virtually any statute passed by any legislature is discriminatory, but it passes the rational basis test, and that's Murgia and Vance versus Bradley.

Unidentified Justice: You were talking about discrimination against the people in this case who are compelled to retire at 55.

It would seem to me that the federal employees would similarly be discriminated against.

Mr. Lee: Indeed, that argument can be made.

And the answer to it is, as this Court has clarified on many occasions, that the under-inclusiveness argument simply is a very weak one in the equal protection context, and that Congress can take it one step at a time.

Congress may conclude, either on the one hand that its policies that it wishes to enact are achieved by mandatory retirement programs, or it can make the opposite conclusion.

Now, in this case as to some people it has made one of those conclusions, and as to other people it has made others.

But that does not detract from the fact that it has the power to do each.

And the most that can be said is that it has been under-inclusive.

There was the proposal that was put before Congress in 1978 to do the job completely, to take care of both federal and state all in one fell swoop.

Because largely of the overlapping jurisdiction and the committee problem, Congress elected not to do that at that time.

But it has the authority to do either, and it also follows, in my view, that it has the authority to do both simultaneously, side by side.

Unidentified Justice: Do you suppose Congress was experimenting on the states collectively in this area?

Mr. Lee: Experimenting in the sense... to the extent that it's experimenting, it's doing it both ways.

It imposes on itself, on the federal government, a more stringent requirement insofar as the age limitations are concerned.

The cap is off insofar as federal employees are concerned.

The Act prohibits all age discrimination to the federal government, and to the states, there are no exceptions except the exceptions... well, the exceptions as to the state are age exceptions, between the ages of 40 and 70.

Over 70, under 40, the state is subject only to those strictures that are imposed by this Court's decision in the Murgia case.

The final issue that I'd like to deal with just briefly is the state's argument, and one that the district court followed, that the 14th Amendment... that Congress cannot exercise its 14th Amendment power without saying so, and saying so rather explicitly.

That, I submit, is an erroneous argument for two reasons.

One is that we believe that Congress did intend to exercise its 14th Amendment powers.

That is a view that is shared by the overwhelming majority of lower federal courts.

Probably the best observation is in the Seventh Circuit's opinion in Calumet that the dominant feature of the legislative history was a concern that embedded and inaccurate stereotypes were producing irrational employment decisions.

That is the language of equal protection for prohibition of discriminatory conduct and not of commerce.

But even if we're wrong on that issue, the premise of the state's argument is itself in error.

The Constitution requires passage by two Houses of Congress and signature by the President.

It also requires that Congress action be authorized by some constitutional provision.

It does not require that Congress identify what that provision is.

That is a judicial function and not a legislative function.

The function of legislative history where it exists is to ascertain congressional intent.

It is not to determine whether Congress knows as much as this Court knows about constitutional law.

The district court has, in effect, held that if Congress does elect to provide legislative history for the purpose of clarifying substantive meaning, which it need not do at all, the price that Congress pays for that clarification is to put its statute at constitutional risk.

This Court's decision in Pennhurst is not to the contrary; this Court's decision in Pennhurts properly read also includes only an inquiry into congressional intent and not to require that Congress receive a passing grade on its constitutional law exam.

I would like to reserve the rest of my time for rebuttal.

Chief Justice Burger: Very well.

Mr. Salzburg?

ORAL ARGUMENT OF BRUCE A. SALZBURG, ESQ. ON BEHALF OF THE APPELLEES

Mr. Salzburg: Mr. Chief Justice, and may it please the Court:

Wyoming enforces a mandatory retirement policy for two classes of individuals.

They are both covered by the same Act.

It is the Act that is here challenged by the EEOC.

The Act covers Wyoming's highway patrol officers, and it covers those game and fish wardens for the state of Wyoming who are also full-time law enforcement officers.

It does not, as the Solicitor General suggests, cover most game and fish employees.

So we are talking, first of all, about Wyoming's treatment of its law enforcement officers, and only its law enforcement officers.

The Solicitor General predicates his argument on the premise that what we are concerned with here today is arbitrary discrimination.

Wyoming suggests that this is not arbitrary discrimination at all; that this is activity by a state which is a reasonable classification based upon age, and that therefore, the question for the Court's determination is simply whether or not the 10th Amendment to the United States Constitution, which embodies our constitutional federalism, reserves to the state of Wyoming the right to treat its law enforcement officers and to make fundamental employment decisions in exactly the same fashion that the United States Congress exercises its employment decisions with regard to federal law enforcement officers.

The position of the state of Wyoming is that under the Commerce clause, that Congress has no power to regulate the states in this fashion.

Moreover, if the Court should reach the question of whether or not Congress has any power under Section V of the 14th Amendment, that that power is insufficient as well.

The requirements for determining whether or not this is an appropriate exercise of Congress's commerce power, of course, were set down by this Court in National League of Cities versus Usery.

The tests are three.

The first, the Act must regulate the states as states.

That test is conceded by the Solicitor General in this case.

The second is that the Act must address a matter which is indisputedly a matter of state sovereignty.

We have some argument there.

The Solicitor General posits--

Unidentified Justice: There was a third one.

Are you going to get to that?

Mr. Salzburg: --Yes, Your Honor.

The Solicitor General posits that the attribute of state sovereignty which Wyoming here seeks to protect is the ability to discriminate arbitrarily.

Your Honors, the state of Wyoming suggests no such thing.

We do not here suggest that it is appropriate for any state to arbitrarily discriminate against any employee on the basis of age or any other classification.

The attribute of state sovereignty which we seek to protect is the ability of the legislature of the state of Wyoming to make fundamental employment decisions.

The Constitution does not vest the Congress, nor does the Constitution vest the federal courts with the ability to make employment decisions concerning who shall be a law enforcement officer in the state of Wyoming.

Unidentified Justice: Mr. Salzburg, supposing that Wyoming had a law that said all game wardens shall be men?

Could the federal government prohibit that?

Mr. Salzburg: Your Honor, Wyoming could not have such a law because sex discrimination is unconstitutional in this context.

Understand that in this case, although the Solicitor General chooses to call this arbitrary discrimination, what we have here is clearly not arbitrary discrimination.

The Solicitor General does not argue... no one in this case argues... that what Wyoming has done here violates the Constitution.

The distinction between what Wyoming has done is that this conduct is constitutionally permissible; whereas, a statute which presumed to discriminate on the basis of sex would clearly be unconstitutional.

Wyoming has no reserved right under the 10th Amendment to violate the Constitution.

Wyoming does have a right that is embodied in the 10th Amendment to make its own fundamental decisions.

This Court recognized last term in FER versus Mississippi that perhaps the quintessential attribute of state sovereignty is the ability to make decisions in areas--

Unidentified Justice: Isn't the only issue here the 10th Amendment issue?

Mr. Salzburg: --Your Honor, we submit that the only issue here is the 10th Amendment issue.

Because lower courts and Solicitor General have argued--

Unidentified Justice: Suppose we reversed the judgment that the Act is unconstitutional on 10th Amendment grounds?

If we decide that the decision was wrong, that's all we would do, isn't it?

There may be some more left to the case.

Mr. Salzburg: --Yes, Your Honor.

Unidentified Justice: Why do we have to go on to issues that were never decided below?

Mr. Salzburg: In this particular case, it seems to me clear that the Court would not have to.

But we might be right back here, no matter what.

Unidentified Justice: That may be, but the only question raised in the papers and argued in the briefs is the 10th Amendment.

Mr. Salzburg: Well, Your Honor, we certainly raise the same arguments that we raised before the district court.

Because the district court did not get past the 10th Amendment issue--

Unidentified Justice: You're respondent here, I take it.

Mr. Salzburg: --We are appellant, Your Honor.

Excuse me, Appellee.

Unidentified Justice: Appellee.

And you described the question as a single question; whether the Age Discrimination Act is unconstitutional on 10th Amendment grounds.

That's the only question that's here.

It's the only question the government presented.

Mr. Salzburg: The third test of National League of Cities versus Usery is whether or not the regulation interferes with the ability of the state to structure integral operations of traditional state functions.

The problem that we wish to bring to the Court's attention is that the interference that is presented by this Act is the most severe interference that could possibly be made by Congress.

Congress is attempting to instruct the states on who its game and fish wardens will be.

Congress is saying, in essence, if the construction of the EEOC is correct, that Wyoming... we would not retain this particular individual solely because he is 55.

However, you must retain him, even though he is 55.

Or in the alternative, go into a federal court and justify the rationality of your decision.

Unidentified Justice: General Salzburg, this isn't as intrusive, is it, as making the Fair Labor Standards Act applicable, where in effect, the government would have been telling Wyoming what to pay to every single state employee?

This is just shearing off a few at the further end of the age spectrum and saying them you may have to treat somewhat differently than you want to.

Mr. Salzburg: Your Honor, it's more intrusive.

The reason is because we would submit it's not merely telling us how much to pay; it's telling us who will deliver the essential governmental services that the state of Wyoming has a right to deliver to its citizens.

It is saying you will have police officers who are over a certain age after the state legislature has made a decision that is properly vested in the state legislature under the Constitution that those individuals will not deliver the state police services to the people in the state of Wyoming.

In that regard, this is far more intrusive than the case was in National League of Cities versus Usery.

The integral operations of any state system, of any state function, of any traditional state function, it seems to Wyoming depends integrally on who delivers the function itself.

The Solicitor General suggests that the existence of the bona fide occupational qualification vindicates the state's ability to make these sorts of decisions, so long as the state is able to show a rational basis for the decision.

That ignores what the BFOQ does.

First, the BFOQ turns equal protection analysis... and I speak of equal protection analysis because it's impossible to talk about reasonable classifications even in the commerce sense without talking about equal protection... the reason that BFOQ does not suffice is twofold.

First, the BFOQ defense forces the state of Wyoming to justify its admittedly constitutional conduct to a federal court.

Again, no one in the case suggests that what Wyoming has done by requiring our law enforcement officers to retire is unconstitutional.

That is because everyone recognizes that this Court's decision in Mass. versus Murgia would control.

Nonetheless, the Congress, through the enactment of the BFOQ defense, is the only method for the state of Wyoming to vindicate its constitutional conduct.

It forces Wyoming to go into court and bear an unconstitutional burden; unconstitutional in the sense that it requires far more for the vindication of its constitutional conduct than this Court would require.

Unidentified Justice: Mr. Salzburg, do you think it's open to us to decide that Wyoming has established a BFOQ defense as a matter of law because of the congressional enactment exempting its own law enforcement personnel from application of the Act?

Mr. Salzburg: It is clear from the legislative history, Your Honor, that the Congress treats its own law enforcement officers as being presumptively entitled to a bona fide occupational qualification.

It seems, therefore, to me to be clear that the court could decide as a matter of law that Wyoming is entitled to the same BFOQ as a matter of law--

Unidentified Justice: Would that solve your problem?

Mr. Salzburg: --It would certainly solve our problem in this case, Your Honor.

Unidentified Justice: What would be the theory on which we would reach such a decision?

Mr. Salzburg: The theory is, Your Honor, that there is no constitutionally significant difference in the facts between the federal government's across-the-board requirement for its law enforcement officers... and understand that it's not little enclaves.

The legislative history which supports the reduction in 1974 of the mandatory retirement age for federal law enforcement officers indicates that they were talking about 41,600 individuals in the federal service.

We're not talking about something that's nominal.

The point is that if it is possible to find that law enforcement as a generic term would entitle a state or the federal government to a BFOQ in age discrimination matters, it shouldn't be any different for the federal government than it is for the states.

Unidentified Justice: Well, certainly we wouldn't do it as a matter of congressional intent, then, because there's no indication that I can find that Congress intended age to be an automatic BFOQ in the case where it was applying the ADEA to states.

Mr. Salzburg: No, Your Honor.

There are many references in the briefs and the legislative history to statements made that the Congress, when it enacted the BFOQ defense, was recognizing that there were certain physically strenuous occupations that the states control, including law enforcement occupations, fire fighter occupations and those sorts of things, which the BFOQ was specifically designed to protect.

The problem occurs because this Court's test in terms of the states protecting its constitutional right to make fundamental employment decisions is one of mere rationality.

The BFOQ, on the other hand, as you recognized in the Solicitor General's argument, imposes quite a different burden.

The burden is all or substantially all employees above a certain age are incapable of performing the functions, and moreover, that it is impossible or impractical to test individually for the particular factor that you are trying to determine, such that age is the only reasonable qualifier.

Unidentified Justice: Do you take the position that all enforcement officers are the same?

Mr. Salzburg: All law enforcement officers?

Unidentified Justice: Yes, please don't take that position.

Mr. Salzburg: No, Your Honor.

Unidentified Justice: Which I think you are saying.

Mr. Salzburg: No, Your Honor.

I'm saying--

Unidentified Justice: I don't know of any two police forces in any two states that are the same.

They're about as different as you can get.

Mr. Salzburg: --Let me say it this way, Your Honor,--

Unidentified Justice: How are you going to get to that point?

Mr. Salzburg: --The record, as the Solicitor General points out, consists only of a complaint.

And of course, since the complaint was dismissed, the factual allegations of the complaint are deemed to be true.

However, that doesn't mean that our record is devoid of evidence about what these people do.

The court can judicially notice the statutes in the state of Wyoming which set certain of the requirements for Wyoming game and fish wardens who are law enforcement officers.

They include generally, the enforcement of the game and fish violations.

That's poaching, license violations, the taking of an elk out of season.

It is not, it seems to me, a very severe leaving of the record to take the next step by implication and understand that those violations do not occur, by and large, on the streets of Cheyenne, Wyoming but rather, occur during hunting season in areas where hunting occurs.

So it's clear enough from this record that the court can determine that the duties that are set by Wyoming statute for these particular law enforcement officers are strenuous indeed.

Now, the lower courts have avoided the 10th Amendment constitutional challenge, and found that rather than this statute being an exercise of the 10th Amendment... excuse me, of the commerce power... they have assumed that Congress used its Section V power under the 14th Amendment.

The Solicitor General states that this Court's ruling last year in Pennhurst cannot apply to this case simply because it is clear from this statute that the Congress intended to regulate the states.

We submit that that is not the question to ask.

The question that was decided in Pennhurst is whether absent an indication of... absent an express statement of an intent to enforce Section V of 14, courts should not lightly assume that Congress, in fact, did that.

We are not requiring or asking this Court to require that Congress adopt legislative history.

We clearly cannot do that.

We're not asking the Court to do that.

We are simply asking the Court to follow what seems to us to be a very clear statement of the rule in Pennhurst, and find that there is no reason to go to the 14th Amendment analysis, because Congress never once expressed any intent that that's what it wished to enforce.

The legislative history that the Solicitor General relies on in making his conclusion, it seems to us, is simply insufficient to reach the question.

There are certainly vague allusions to discrimination; there are statements in the legislative history which state that the effects of age discrimination are as bad as the effects of racial discrimination or discriminations based upon sex, and we don't dispute that.

But to say that the effects of age discrimination are as bad as the effects of racial discrimination or discriminations based upon sex is not to say that the Congress is therefore using its Section V enforcement power in order to--

Unidentified Justice: May I just ask you... it really is the second half of your opponent's argument.

Supposing the statute said pursuant to the powers vested by Section V of the 14th Amendment, Congress hereby adopts the following law, and they re-enacted the law.

Would that be a difference case?

Mr. Salzburg: --It would certainly be a different case, Your Honor, with respect to whether or not it's proper for the court to assume that the Section V power exists.

It would be no different in the result.

Unidentified Justice: Does the scope of their power depend on what they say at the outset of the statute?

Mr. Salzburg: No, Your Honor.

Clearly not.

Unidentified Justice: Then can't we assume that they did, in effect, say that, and still have the same problem that you won't argue?

Mr. Salzburg: I am saying this, Your Honor, that if you use Pennhurst, you never reach the second question.

If you find that Pennhurst is no bar, then you reach the second question but the result is the same.

Because we believe that the 14th Amendment power is also insufficient to regulate the states in this manner.

Unidentified Justice: Now, why is that?

Is that because discrimination on account of age is simply not... it would never be subject to the 14th Amendment?

Mr. Salzburg: No, Your Honor, I need to clarify that because my argument has apparently been misapprehended.

Our position is this.

The 14th Amendment enforcement power grants the Congress very broad power to enforce the provisions of the amendment itself.

This Court has held many times that that power is plenary within the terms of the grant.

Our position is that ADEA is not appropriate legislation to enforce the 14th Amendment simply because what the state has done here... and I need to limit myself to the application in this case... what the state has done here is not a constitutional violation.

Now, the 14th Amendment grants to Congress basically three powers.

Of course, it grants the Congress the ability to prohibit conduct which in and of itself would violate the equal protection clause.

Further, it also grants to Congress the ability to pass legislation which remedies the current effects of past constitutional violations.

And finally, it grants to Congress the power to enact legislation which prohibits conduct which the Congress finds would present a risk of future discriminations, future constitutional violations.

In this case, we have none of those situations, and the Congress recognized that.

The Congress in its legislative history immediately prior to passing its law prohibiting mandatory retirements said if the courts are not going to declare this conduct unconstitutional, we must act to make it illegal.

We say fine and good.

The Congress has the power to make mandatory retirement illegal under the commerce clause.

But the Congress has no power to address an evil pursuant to the 14th Amendment which is not contemplated by the amendment itself.

Now,--

Unidentified Justice: Isn't your broader position that the states have never delegated to the federal government the authority to tell them how to run the state government in terms of its employment?

Mr. Salzburg: --That's exactly right, Your Honor.

And this Court held as much in National League of Cities versus Usery.

The analysis was limited to the Congress's commerce power, and that was precisely the holding of the case; that the 10th Amendment is an affirmative bar to the exercise of congressional power under the commerce clause, which is otherwise appropriate.

No one said that the Congress could not have enacted federal minimum wage laws under the commerce power because it clearly had that power to regulate interstate commerce in that fashion.

However, when it came to regulating the states, the 10th Amendment was an affirmative limitation on Congress's ability to do so.

Unidentified Justice: Do you think that before the 14th Amendment, the states could have discriminated against women on police forces?

Mr. Salzburg: It's a difficult question to speculate about, Your Honor.

Unidentified Justice: At any rate, after the 14th Amendment they could not.

Mr. Salzburg: Clearly not.

Because the 10th Amendment, again, is no bar to congressional action which prohibits a state constitutional violation.

The state does not reserve to itself any power to act unconstitutionally.

Finally, Your Honor, I need to discuss the problem of the closer fit.

The Solicitor General's argument is that Congress, notwithstanding this Court's ruling in Massachusetts Board of Retirement versus Murgia, has the power to require a closer fit between the goals which the state may legitimately have, and the means which the state chooses to get there.

As applied in this case, that argument leads to the conclusion that the Congress has the power to overrule this Court on questions of constitutional law.

The Congress has no--

Unidentified Justice: Again, do you think the issue here is whether the Wyoming regulation or statute... it's a regulation, isn't it?

Mr. Salzburg: --Pardon me?

The statute itself is what is being challenged.

Unidentified Justice: But the imposition of the age requirement was by regulation, wasn't it, under this statute?

Mr. Salzburg: No, Your Honor.

The statute authorizes--

Unidentified Justice: Well, in any event, what is the statute or regulation?

The issue here isn't whether it violates the Age Discrimination Act, is it?

That isn't the issue here.

The issue here is whether the Age Discrimination Act is constitutional.

Mr. Salzburg: --That's correct, Your Honor.

Unidentified Justice: Are you just responding about the closer fit because the Solicitor General has argued an issue that isn't here?

Mr. Salzburg: Your Honor, the Solicitor General presents the closer fit argument as justification for the constitutionality of the Act.

I wish to address the argument to demonstrate that his conclusion is wrong that the Act cannot be... that Congress has no such power to constitutionally require a fit beyond what this Court has required in determining equal protection cases, if in fact this was an exercise of any equal protection enforcement power.

Your Honors, for the reasons that I've just stated, we would respectfully request that the decision of the state of Wyoming to retire its law enforcement officers be affirmed.

Chief Justice Burger: Do you have anything further, Mr. Solicitor General?

ORAL ARGUMENT OF REX E. LEE, ESQ. ON BEHALF OF THE APPELLEES -- Rebuttal

Mr. Lee: Just a couple of matters, Mr. Chief Justice.

First, with regard to Mr. Salzburg's final argument, it's exactly the same argument that New York made in Morgan.

New York in the Morgan case argued that its English language requirement could not be prohibited by Congress because the Constitution did not require it.

And that's exactly... and the significance of Morgan is that it gives Congress the authority to go beyond when all that Congress is doing is to identify means of enforcing those constitutional rights that have been already identified by this Court.

With regard to EEOC and... this is one instance, Justice Rehnquist, in which I guessed right as to what EEOC would do... there are opinions, apparently, in both the Department of Labor and EEOC that more frequent physical examinations for older employees is not violative of the ADEA.

With regard to the question of whether Congress has, in effect, concluded that there is a BFOQ for law enforcement, that is not the approach.

And indeed, if it were it would excuse privately employed security guards covered by the ADEA.

Rather, Congress's approach has simply been to go not as far as it might.

With regard to the states, it has not prohibited age discrimination under age 40 or over age 70, and with regard to the federal government, it has not yet applied to all federal employees.

Unidentified Justice: Well, there are a number of federal employees who are not subject to as stringent limitations on retirement as the state of Wyoming's will be, isn't that true?

Mr. Lee: That is correct.

As I say, it is an under-inclusiveness argument.

Finally, let me take Justice Stevens' question one step further.

Congress reenacts and says that it's acting pursuant to the 14th Amendment.

The same result obtains, I submit, if Congress reenacts and says absolutely nothing.

There is no constitutional requirement that Congress either provide legislative history or specify the constitutional basis for what it has done.

In this case, the determinative fact is that there is a constitutional basis, and Congress exercised that constitutional basis.

Whether it was smart enough to know that that is what it was doing or not is for this Court to determine.

For this reason, the Judgment of the District Court of the Wyoming should be reversed.

Chief Justice Burger: Thank you, gentlemen, the case is submitted.

Unidentified Justice: The Honorable Court is now adjourned until tomorrow at 10:00.