Equal Employment Opportunity Commission v. Wyoming
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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
v.
WYOMING ET AL.
Supreme Court of United States.
*227 Solicitor General Lee argued the cause for appellant. With him on the briefs were Deputy Solicitor General Wallace, George W. Jones, Michael J. Connolly, Philip B. Sklover, and Vella M. Fink.
Bruce A. Salzburg, Senior Assistant Attorney General of Wyoming, argued the cause for appellees. With him on the briefs was Steven F. Freudenthal, Attorney General.[*]
Briefs of amici curiae urging affirmance were filed for the State of Alabama et al. by Charles A. Graddick, Attorney General of Alabama, and Algert S. Agricola, Jr., Assistant Attorney General, Robert K. Corbin, Attorney General of Arizona, and Anthony B. Ching, Solicitor General, Michael J. Bowers, Attorney General of Georgia, and Gary R. Hurst, Assistant Attorney General, Tany S. Hong, Attorney General of Hawaii, Tyrone C. Fahner, Attorney General of Illinois, Linley E. Pearson, Attorney General of Indiana, and James F. Schmidt, Deputy Attorney General, William J. Guste, Jr., Attorney General of Louisiana, and Kendall L. Vick, Assistant Attorney General, Frank J. Kelly, Attorney General of Michigan, and Susan Peck Iannotti, Assistant Attorney General, John Ashcroft, Attorney General of Missouri, Louis J. Caruso, Solicitor General, and Preston Dean, Assistant Attorney General, Michael J. Greely, Attorney General of Montana, and F. Woodside Wright, Special Assistant Attorney General, Paul L. Douglas, Attorney General of Nebraska, and Bernard L. Packett, Assistant Attorney General, William J. Brown, Attorney General of Ohio, and James R. Rishel, Rufus L. Edmisten, Attorney General, of North Carolina, and Douglas A. Johnston, Assistant Attorney General, LeRoy S. Zimmerman, Attorney General of Pennsylvania, and Debra K. Wallet, Deputy Attorney General, William M. Leech, Jr., Attorney General of Tennessee, and Michael E. Terry, Deputy Attorney General, Mark White, Attorney General of Texas, and William O. Goodman, Assistant Attorney General, David L. Wilkinson, Attorney General of Utah, and Stephen G. Schwendiman, Assistant Attorney General, John J. Easton, Jr., Attorney General of Vermont, and Denise Johnson, Assistant Attorney General, and Jack Avery, Attorney General of Guam; for the State of California et al. by George Deukmejian, Attorney General of California, Willard A. Shank, Chief Assistant Attorney General, Richard D. Martland, Assistant Attorney General, and Mary C. Michel, Deputy Attorney General, and Charles A. Graddick, Attorney General of Alabama, and Algert S. Agricola, Jr., Assistant Attorney General; for the County of Marathon, Wisconsin, et al. by Charles C. Mulcahy, Michael R. Wherry, and William J. Mulligan; for the City of Baltimore by Benjamin L. Brown and Ambrose T. Hartman; and for the National Institute of Municipal Law Officers by James B. Brennan, Henry W. Underhill, Jr., Benjamin L. Brown, J. Lamar Shelley, Roy D. Bates, Roger F. Cutler, Alan J. Davis, John Dekker, Lee E. Holt, George F. Knox, Jr., Walter M. Powell, William H. Taube, John W. Witt, Max P. Zall, Conard B. Mattox, Jr., and Charles S. Rhyne.
*228 JUSTICE BRENNAN delivered the opinion of the Court.
Under the Age Discrimination in Employment Act of 1967, 81 Stat. 602, as amended, 29 U. S. C. 621 et seq. (1976 ed. and Supp. V) (ADEA or Act), it is unlawful for an employer *229 to discriminate against any employee or potential employee on the basis of age, except "where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business, or where the differentiation is based on reasonable factors other than age."[1] The question presented in this case is whether Congress acted constitutionally when, in 1974, it extended the definition of "employer" under 11(b) of the Act to include state and local governments. The United States District Court for the District of Wyoming, in an enforcement action brought by the Equal Employment Opportunity Commission (EEOC or Commission), held that, at least as applied to certain classes of state workers, the extension was unconstitutional. 514 F. Supp. 595 (1981). The Commission filed a direct appeal under 28 U. S. C. 1252, and we noted probable jurisdiction. 454 U. S. 1140 (1982). We now reverse.
I
Efforts in Congress to prohibit arbitrary age discrimination date back at least to the 1950's.[2] During floor debate over what was to become Title VII of the Civil Rights Act of 1964, amendments were offered in both the House and the Senate to ban discrimination on the basis of age as well as race, color, religion, sex, and national origin. These amendments were opposed at least in part on the basis that Congress did not yet have enough information to make a considered judgment about the nature of age discrimination, and each was ultimately defeated. 110 Cong. Rec. 2596-2599, 9911-9913, 13490-13492 (1964); EEOC, Legislative History of the Age Discrimination in Employment Act 5-14 (1981) (hereinafter Legislative History). Title VII did, however, *230 include a provision, 715, 78 Stat. 265 (since superseded by 10 of the Equal Employment Opportunity Act of 1972, 86 Stat. 111), which directed the Secretary of Labor to "make a full and complete study of the factors which might tend to result in discrimination in employment because of age and of the consequences of such discrimination on the economy and individuals affected," and to report the results of that study to Congress. That report was transmitted approximately one year later. Report of the Secretary of Labor, The Older American Worker: Age Discrimination in Employment (1965), Legislative History 16-41.
In 1966, Congress directed the Secretary of Labor to submit specific legislative proposals for prohibiting age discrimination. Fair Labor Standards Amendments of 1966, 606, 80 Stat. 845. The Secretary transmitted a draft bill in early 1967, see 113 Cong. Rec. 1377 (1967), and the President, in a message to Congress on older Americans, recommended its enactment and expressed serious concern about the problem of age discrimination, see Special Message to the Congress Proposing Programs for Older Americans, 1 Public Papers of the Presidents, Lyndon B. Johnson, 1967, pp. 32, 37 (1968). Congress undertook further study of its own, and Committees in both the House and the Senate conducted detailed hearings on the proposed legislation. See Age Discrimination in Employment: Hearings on S. 830 and S. 788 before the Subcommittee on Labor of the Senate Committee on Labor and Public Welfare, 90th Cong., 1st Sess. (1967); Age Discrimination in Employment: Hearings on H. R. 3651 et al. before the General Subcommittee on Labor of the House Committee on Education and Labor, 90th Cong., 1st Sess. (1967); see also Retirement and the Individual: Hearings before the Subcommittee on Retirement and the Individual of the Senate Special Committee on Aging, 90th Cong., 1st Sess. (1967).
The report of the Secretary of Labor, whose findings were confirmed throughout the extensive factfinding undertaken *231 by the Executive Branch and Congress, came to the following basic conclusions: (1) Many employers adopted specific age limitations in those States that had not prohibited them by their own antidiscrimination laws, although many other employers were able to operate successfully without them. (2) In the aggregate, these age limitations had a marked effect upon the employment of older workers. (3) Although age discrimination rarely was based on the sort of animus motivating some other forms of discrimination, it was based in large part on stereotypes unsupported by objective fact, and was often defended on grounds different from its actual causes. (4) Moreover, the available empirical evidence demonstrated that arbitrary age lines were in fact generally unfounded and that, as an overall matter, the performance of older workers was at least as good as that of younger workers. (5) Finally, arbitrary age discrimination was profoundly harmful in at least two ways. First, it deprived the national economy of the productive labor of millions of individuals and imposed on the governmental treasury substantially increased costs in unemployment insurance and federal Social Security benefits. Second, it inflicted on individual workers the economic and psychological injury accompanying the loss of the opportunity to engage in productive and satisfying occupations.
The product of the process of factfinding and deliberation formally begun in 1964 was the Age Discrimination in Employment Act of 1967. The preamble to the Act emphasized both the individual and social costs of age discrimination.[3]*232 The provisions of the Act as relevant here prohibited various forms of age discrimination in employment, including the discharge of workers on the basis of their age. 4(a), 29 U. S. C. 623(a).[4] The protection of the Act was limited, however, to workers between the ages of 40 and 65, 12(a), 29 U. S. C. 631, raised to age 70 in 1978, Age Discrimination in Employment Act Amendments of 1978, 3(a), 92 Stat. 189. Moreover, in order to insure that employers were permitted *233 to use neutral criteria not directly dependant on age, and in recognition of the fact that even criteria that are based on age are occasionally justified, the Act provided that certain otherwise prohibited employment practices would not be unlawful "where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business, or where the differentiation is based on reasonable factors other than age." 4(f)(1), 29 U. S. C. 623(f)(1).
The ADEA, as originally passed in 1967, did not apply to the Federal Government, to the States or their political sub-divisions, or to employers with fewer than 25 employees. In a Report issued in 1973, a Senate Committee found this gap in coverage to be serious, and commented that "[t]here is . . . evidence that, like the corporate world, government managers also create an environment where young is somehow better than old." Senate Special Committee on Aging, Improving the Age Discrimination Law, 93d Cong., 1st Sess., 14 (Comm. Print 1973), Legislative History 231. In 1974, Congress extended the substantive prohibitions of the Act to employers having at least 20 workers, and to the Federal and State Governments.[5]
*234 II
Prior to the District Court decision in this case, every federal court that considered the question upheld the constitutionality of the 1974 extension of the Age Discrimination in Employment Act to state and local workers as an exercise of Congress' power under either the Commerce Clause or 5 of the Fourteenth Amendment.[6]
This case arose out of the involuntary retirement at age 55 of Bill Crump, a District Game Division supervisor for the Wyoming Game and Fish Department. Crump's dismissal was based on a Wyoming statute that conditions further employment for Game and Fish Wardens who reach the age of 55 on "the approval of [their] employer."[7] Crump filed a *235 complaint with the EEOC, alleging that the Game and Fish Department had violated the Age Discrimination in Employment Act. After conciliation efforts between the Commission and the Game and Fish Department failed, the Commission filed suit in the District Court for the District of Wyoming against the State and various of its officials seeking declaratory and injunctive relief, backpay, and liquidated damages on behalf of Mr. Crump and others similarly situated.
The District Court, upon a motion by the defendants, dismissed the suit. It held that the Age Discrimination in Employment Act violated the doctrine of Tenth Amendment immunity articulated in National League of Cities v. Usery, 426 U. S. 833 (1976), at least insofar as it regulated Wyoming's employment relationship with its game wardens and other law enforcement officials. 514 F. Supp., at 600. The District Court also held, citing Pennhurst State School and Hospital v. Halderman, 451 U. S. 1 (1981), that the application of the ADEA to the States could not be justified as an exercise of Congress' power under 5 of the Fourteenth Amendment because Congress did not explicitly state that it invoked that power in passing the 1974 amendments. 514 F. Supp., at 600.
III
The appellees have not claimed either in the District Court or in this Court that Congress exceeded the scope of its affirmative grant of power under the Commerce Clause[8] in enacting the ADEA. See generally National League of Cities v. Usery, supra, at 840-841; Heart of Atlanta Motel, Inc. v. *236 United States, 379 U. S. 241, 243-244 (1964). Rather, the District Court held and appellees argue that, at least with respect to state game wardens, application of the ADEA to the States is precluded by virtue of external constraints imposed on Congress' commerce powers by the Tenth Amendment.
A
National League of Cities v. Usery struck down Congress' attempt to extend the wage and hour provisions of the Fair Labor Standards Act to state and local governments. National League of Cities was grounded on a concern that the imposition of certain federal regulations on state governments might, if left unchecked, "allow `the National Government [to] devour the essentials of state sovereignty,' " 426 U. S., at 855 (quoting Maryland v. Wirtz, 392 U. S. 183, 205 (1968) (Douglas, J., dissenting)). It therefore drew from the Tenth Amendment an "affirmative limitation on the exercise of [congressional power under the Commerce Clause] akin to other commerce power affirmative limitations contained in the Constitution." 426 U. S., at 841. The principle of immunity articulated in National League of Cities is a functional doctrine, however, whose ultimate purpose is not to create a sacred province of state autonomy, but to ensure that the unique benefits of a federal system in which the States enjoy a " `separate and independent existence,' " id., at 845 (quoting Lane County v. Oregon, 7 Wall. 71, 76 (1869)), not be lost through undue federal interference in certain core state functions. See FERC v. Mississippi, 456 U. S. 742, 765-766 (1982); United Transportation Union v. Long Island R. Co., 455 U. S. 678, 686-687 (1982); Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U. S. 264, 286-288 (1981).[9]
Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., supra, summarized the hurdles that confront any claim *237 that a state or local governmental unit should be immune from an otherwise legitimate exercise of the federal power to regulate commerce:
"[I]n order to succeed, a claim that congressional commerce power legislation is invalid under the reasoning of National League of Cities must satisfy each of three requirements. First, there must be a showing that the challenged statute regulates the `States as States.' Second, the federal regulation must address matters that are indisputably `attribute[s] of state sovereignty.' And third, it must be apparent that the States' compliance with the federal law would directly impair their ability `to structure integral operations in areas of traditional governmental functions.' " 452 U. S., at 287-288 (citations omitted; emphasis in original).
Moreover,
"Demonstrating that these three requirements are met does not . . . guarantee that a Tenth Amendment challenge to congressional commerce power action will succeed. There are situations in which the nature of the federal interest advanced may be such that it justifies state submission." Id., at 288, n. 29 (citations omitted).
See also United Transportation Union v. Long Island R. Co., supra, at 684, and n. 9. The first requirement ÔÇö that the challenged federal statute regulate the "States as States" ÔÇö is plainly met in this case.[10] The second requirement ÔÇö that *238 the federal statute address an "undoubted attribute of state sovereignty" ÔÇö poses significantly more difficulties.[11] We need not definitively resolve this issue, however, nor do we have any occasion to reach the final balancing step of the inquiry described in Hodel,[12] for we are convinced that, even if Wyoming's decision to impose forced retirement on *239 its game wardens does involve the exercise of an attribute of state sovereignty, the Age Discrimination in Employment Act does not "directly impair" the State's ability to "structure integral operations in areas of traditional governmental functions."
B
The management of state parks is clearly a traditional state function. National League of Cities, 426 U. S., at 851. As we have already emphasized, however, the purpose of the doctrine of immunity articulated in National League of Cities was to protect States from federal intrusions that might threaten their "separate and independent existence." Ibid. Our decision as to whether the federal law at issue here directly impairs the States' ability to structure their integral operations must therefore depend, as it did in National League of Cities itself, on considerations of degree. See id., at 845, 852; FERC v. Mississippi, 456 U. S., at 769-770. We conclude that the degree of federal intrusion in this case is sufficiently less serious than it was in National League of Cities so as to make it unnecessary for us to override Congress' express choice to extend its regulatory authority to the States.
In this case, appellees claim no substantial stake in their retirement policy other than "assur[ing] the physical preparedness of Wyoming game wardens to perform their duties." Brief for Appellees 18.[13] Under the ADEA, however, the State may still, at the very least, assess the fitness of its game wardens and dismiss those wardens whom it reasonably finds to be unfit. Put another way, the Act requires the State to achieve its goals in a more individualized and careful manner than would otherwise be the case, but it does not require the State to abandon those goals, or to abandon the public policy decisions underlying them. FERC v. Mississippi, supra, at 771; cf. n. 11, supra.
*240 Perhaps more important, appellees remain free under the ADEA to continue to do precisely what they are doing now, if they can demonstrate that age is a "bona fide occupational qualification" for the job of game warden. See supra, at 232-233. Thus, in distinct contrast to the situation in National League of Cities, supra, at 848, even the State's discretion to achieve its goals in the way it thinks best is not being overridden entirely, but is merely being tested against a reasonable federal standard.
Finally, the Court's concern in National League of Cities was not only with the effect of the federal regulatory scheme on the particular decisions it was purporting to regulate, but also with the potential impact of that scheme on the States' ability to structure operations and set priorities over a wide range of decisions. 426 U. S., at 849-850.[14] Indeed, National League of Cities spelled out in some detail how application of the federal wage and hour statute to the States threatened a virtual chain reaction of substantial and almost certainly unintended consequential effects on state decisionmaking. Id., at 846-852. Nothing in this case, however, portends anything like the same wide-ranging and profound threat to the structure of state governance.
The most tangible consequential effect identified in National League of Cities was financial: forcing the States to pay their workers a minimum wage and an overtime rate would leave them with less money for other vital state programs. The test of such financial effect as drawn in National League of Cities does not depend, however, on "particularized assessments of actual impact," which may vary from State to State and time to time, but on a more generalized inquiry, essentially legal rather than factual, into the direct and obvious effect of the federal legislation on the ability of the States to allocate their resources. Id., at 851-852; see *241 Hodel, 452 U. S., at 292, n. 33. In this case, we cannot conclude from the nature of the ADEA that it will have either a direct or an obvious negative effect on state finances. Older workers with seniority may tend to get paid more than younger workers without seniority, and may by their continued employment accrue increased benefits when they do retire. But these increased costs, even if they were not largely speculative in their own right, might very well be outweighed by a number of other factors: Those same older workers, as long as they remain employed, will not have to be paid any pension benefits at all, and will continue to contribute to the pension fund. And, when they do retire, they will likely, as an actuarial matter, receive benefits for fewer years than workers who retire early.[15] Admittedly, as some of the amici point out, the costs of certain state health and other benefit plans would increase if they were automatically extended to older workers now forced to retire at an early age. But Congress, in passing the ADEA, included a provision specifically disclaiming a construction of the Act which would require that the health and similar benefits received by older workers *242 be in all respects identical to those received by younger workers. ADEA 4(f)(2), 29 U. S. C. 623(f)(2) (1976 ed. and Supp. V).[16]
The second consequential effect identified in National League of Cities was on the States' ability to use their employment relationship with their citizens as a tool for pursuing social and economic policies beyond their immediate managerial goals. See, e. g., 426 U. S., at 848 (offering jobs at below the minimum wage to persons who do not possess "minimum employment requirements"). Appellees, however, have claimed no such purposes for Wyoming's involuntary retirement statute. Moreover, whatever broader social or economic purposes could be imagined for this particular Wyoming statute would not, we are convinced, bring with them either the breadth or the importance of the state policies identified in National League of Cities.[17]
*243 IV
The extension of the ADEA to cover state and local governments, both on its face and as applied in this case, was a valid exercise of Congress' powers under the Commerce Clause. We need not decide whether it could also be upheld as an exercise of Congress' powers under 5 of the Fourteenth Amendment.[18] The judgment of the District Court is *244A reversed, and the case is remanded for further proceedings consistent with this opinion.
So ordered.
*244B JUSTICE STEVENS, concurring.
While I join the Court's opinion, a complete explanation of my appraisal of the case requires these additional comments about the larger perspective in which I view the underlying issues.
I
In final analysis, we are construing the scope of the power granted to Congress by the Commerce Clause of the Constitution. It is important to remember that this Clause was the Framers' response to the central problem that gave rise to the Constitution itself. As I have previously noted, Justice Rutledge described the origins and purpose of the Commerce Clause in these words:
"If any liberties may be held more basic than others, they are the great and indispensable democratic freedoms secured by the First Amendment. But it was not *245 to assure them that the Constitution was framed and adopted. Only later were they added, by popular demand. It was rather to secure freedom of trade, to break down the barriers to its free flow, that the Annapolis Convention was called, only to adjourn with a view to Philadelphia. Thus the generating source of the Constitution lay in the rising volume of restraints upon commerce which the Confederation could not check. These were the proximate cause of our national existence down to today.
"As evils are wont to do, they dictated the character and scope of their own remedy. This lay specifically in the commerce clause. No prohibition of trade barriers as among the states could have been effective of its own force or by trade agreements. It had become apparent that such treaties were too difficult to negotiate and the process of securing them was too complex for this method to give the needed relief. Power adequate to make and enforce the prohibition was required. Hence, the necessity for creating an entirely new scheme of government.
". . . So by a stroke as bold as it proved successful, they founded a nation, although they had set out only to find a way to reduce trade restrictions. So also they solved the particular problem causative of their historic action, by introducing the commerce clause in the new structure of power." W. Rutledge, A Declaration of Legal Faith 25-26 (1947), quoted in United States v. Stasczuk, 517 F. 2d 53, 58 (CA7) (en banc), cert. denied, 423 U. S. 837 (1975).[1]
*246 There have been occasions when the Court has given a miserly construction to the Commerce Clause.[2] But as the needs of a dynamic and constantly expanding national economy have changed, this Court has construed the Commerce Clause to reflect the intent of the Framers of the Constitution ÔÇö to confer a power on the National Government adequate *247 to discharge its central mission. In this process the Court has repeatedly repudiated cases that had narrowly construed the Clause.[3] The development of judicial doctrine has accommodated the transition from a purely local, to a regional, and ultimately to a national economy.[4] Today, of course, our economy is merely a part of an international mechanism no single nation could possibly regulate.
In the statutes challenged in this case and in National League of Cities v. Usery, 426 U. S. 833 (1976), Congress exercised its power to regulate the American labor market. There was a time when this Court would have denied that Congress had any such power,[5] but that chapter in our judicial *248 history has long been closed.[6] Today, there should be universal agreement on the proposition that Congress has ample power to regulate the terms and conditions of employment throughout the economy. Because of the interdependence of the segments of the economy and the importance and magnitude of government employment, a comprehensive congressional policy to regulate the labor market may require coverage of both public and private sectors to be effective.
Congress may not, of course, transcend specific limitations on its exercise of the commerce power that are imposed by other provisions of the Constitution. But there is no limitation in the text of the Constitution that is even arguably applicable to this case. The only basis for questioning the federal statute at issue here is the pure judicial fiat found in this Court's opinion in National League of Cities v. Usery. Neither the Tenth Amendment,[7] nor any other provision of the Constitution, affords any support for that judicially constructed limitation on the scope of the federal power granted to Congress by the Commerce Clause.[8] In my opinion, that *249 decision must be placed in the same category as United States v. E. C. Knight Co., 156 U. S. 1 (1895), Hammer v. Dagenhart, 247 U. S. 251 (1918), and Carter v. Carter Coal Co., 298 U. S. 238 (1936) ÔÇö cases whose subsequent rejection is now universally regarded as proper. I think it so plain that National League of Cities not only was incorrectly decided, but also is inconsistent with the central purpose of the Constitution itself, that it is not entitled to the deference that *250 the doctrine of stare decisis ordinarily commands for this Court's precedents. Notwithstanding my respect for that doctrine, I believe that the law would be well served by a prompt rejection of National League of Cities' modern embodiment of the spirit of the Articles of Confederation.
II
My conviction that Congress had ample power to enact this statute, as well as the statute at issue in National League of Cities, is unrelated to my views about the merits of either piece of legislation. As I intimated in my dissent in that case, I believe that federal regulation that enhances the minimum price of labor inevitably reduces the number of jobs available to people who are ready, willing, and able to engage in productive work ÔÇö and thereby aggravates rather than ameliorates our unemployment problems. I also believe, contrary to the popular view, that the burdens imposed on the national economy by legislative prohibitions against mandatory retirement on account of age exceed the potential benefits. My personal views on such matters are, however, totally irrelevant to the judicial task I am obligated to perform. There is nothing novel about this point ÔÇö it has been made repeatedly by more learned and more experienced judges.[9] But it is important to emphasize this obvious limit on the proper exercise of judicial power, one that is sometimes overlooked by those who criticize our work product.
The question in this case is purely one of constitutional power. In exercising its power to regulate the national market for the services of individuals ÔÇö either by prescribing the minimum price for such services or by prohibiting employment discrimination on account of age ÔÇö may Congress regulate both the public sector and the private sector of that market, *251 or must it confine its regulation to the private sector? If the power is to be adequate to enable the National Government to perform its central mission, that question can have only one answer.
CHIEF JUSTICE BURGER, with whom JUSTICE POWELL, JUSTICE REHNQUIST, and JUSTICE O'CONNOR join, dissenting.
The Court decides today that Congress may dictate to the states, and their political subdivisions, detailed standards governing the selection of state employees, including those charged with protecting people and homes from crimes and fires. Although the opinion reads the Constitution to allow Congress to usurp this fundamental state function, I have re-examined that document and I fail to see where it grants to the National Government the power to impose such strictures on the states either expressly or by implication. Those strictures are not required by any holding of this Court, and it is not wholly without significance that Congress has not placed similar limits on itself in the exercise of its own sovereign powers. Accordingly, I would hold the Age Discrimination in Employment Act (Age Act) unconstitutional as applied to the states, and affirm the judgment of the District Court.
I
I begin by analyzing the Commerce Clause rationale, for it was upon this power that Congress expressly relied when it originally enacted the Age Act in 1967, see 29 U. S. C. 621, and when it extended its protections to state and local government employees, see H. R. Rep. No. 93-913, pp. 1-2 (1974).[1]
*252 We have had several occasions in recent years to investigate the scope of congressional authority to legislate under the Commerce Clause, see, e. g., National League of Cities v. Usery, 426 U. S. 833 (1976); Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U. S. 264 (1981); United Transportation Union v. Long Island R. Co., 455 U. S. 678 (1982). The wisdom to be drawn from these cases is that Congress' authority under the Commerce Clause is restricted by the protections afforded the states by the Tenth Amendment. To decide whether a particular enactment has improperly intruded into Tenth Amendment rights, we have adopted a three-prong test:
"First, there must be a showing that the challenged statute regulates the `States as States.' [National League of Cities, 426 U. S.], at 854. Second, the federal regulation must address matters that are indisputably `attribute[s] of state sovereignty.' Id., at 845. And third, it must be apparent that the States' compliance with the federal law would directly impair their ability `to structure integral operations in areas of traditional governmental functions.' Id., at 852." Hodel, 452 U. S., at 287-288.
For statutes that meet each prong of this test, a final inquiry must be made to decide whether "the federal interest advanced [is] such that it justifies state submission." Id., at 288, n. 29, citing Fry v. United States, 421 U. S. 542 (1975); National League of Cities, supra, at 856 (BLACKMUN, J., concurring).
We need not pause on the first prong of this test, for the legislation is indisputably aimed at regulating the states in their capacity as states, 29 U. S. C. 630(b). The Commission argues, however, that the legislation does not run counter to the other two prongs of the test. Turning then to prong two, whether the Age Act addresses matters that are "attributes of state sovereignty," we may assume that in enacting the Wyoming State Highway Patrol and Game and *253 Fish Warden Retirement Act, Wyo. Stat. 31-3-101 et seq. (1977 and Supp. 1982), Wyoming sought to assure the physical preparedness of its game wardens and others who enforce its laws. Tr. of Oral Arg. 5. This goal is surely an attribute of sovereignty, for parks and recreation services were identified in National League of Cities, supra, at 851, as traditional state activities protected by the Tenth Amendment. Even more important, it is the essence of state power to choose ÔÇö subject only to constitutional limits ÔÇö who is to be part of the state government. Cf. Oregon v. Mitchell, 400 U. S. 112, 123 (1970) (Black, J.). If poachers destroy the fish and game reserves of Wyoming, it is not to the Congress that people are going to complain, but to state and local authorities who will have to justify their actions in selecting wardens. Since it is the State that bears the responsibility for delivering the services, it is clearly an attribute of state sovereignty to choose who will perform these duties.
To decide whether a challenged activity is an attribute of sovereignty, it is instructive to inquire whether other government entities have attempted to enact similar legislation. A finding that other governmental units have passed mandatory retirement laws, although not conclusive, is persuasive evidence that such laws are traditional methods for insuring an efficient work force for certain governmental functions. My research indicates that more than one-half the states have retirement laws that, like the Wyoming State Highway Patrol and Game and Fish Warden Retirement Act, violate the Age Act.[2] More important, Congress, while mandating *254 compliance in the states, carefully preserved its own freedom to select employees on any basis it chooses. Although the Age Act was expressly made to apply to the National Government, 29 U. S. C. 633a (1976 ed. and Supp. V), exceptions were built into the enactment. Certain categories of federal employment ÔÇö such as law enforcement officers ÔÇö were explicitly excluded, and in addition, the statute provides that "[r]easonable exemptions to the provisions of this section may be established by the [Civil Service] Commission."[3] 29 U. S. C. 633a(b). I conclude that defining the qualifications of employees is an essential of sovere