Congress' Commerce Power Does Not Include the Authority to Directly Displace the States' Freedom to Structure Integral Operations in Areas of Traditional Governmental Functions



Journal Title

Journal ISSN

Volume Title


Texas Tech Law Review


In National League of Cities v. Usery, various states and cities challenged the constitutionality of the 1974 amendments to the Fair Labor Standards Act (FLSA). Those amendments brought within the act's minimum wage and hour coverage all state employees except public office holders and various executive, administrative, and professional personnel. The Court held that the commerce power granted Congress by the Constitution does not include the authority to directly displace the states' sovereign freedom to structure integral operations, such as employer-employee relationships, in areas of traditional governmental functions. Now that the Court has developed a doctrine of state sovereignty to weigh in the states' favor, there is no reason that a balance test cannot work in the area of affirmative limitations to the federal commerce power. The solution is to utilize a balancing test but to protect it with articulable guidelines.



Fair Labor Standards Act, FLSA, Commerce power, Sovereign freedom, States’ rights, National League of Cities v. Usery, Case note


8 Tex. Tech L. Rev. 403