Judicial activism occurs when judges write subjective policy preferences into the law rather than apply the law impartially according to its original meaning. As such, activism does not mean the mere act of striking down a law.
In a 5-4 decision, the Supreme Court ruled that the Commerce Clause empowers the federal government to regulate the terms of employment of state workers. This case upheld the minimum wage requirement of the Fair Labor Standards Act (FLSA), as applied to state governments. This reversed National League of Cities v. Usery (1976), in which the Court ruled that imposing a minimum wage requirement on state governments violated the Tenth Amendment.
This opinion strains the text of the Commerce Clause to the point of breaking in order to uphold the application of federal regulation to conduct that is not interstate. In a decision by Justice Blackmun, the Court abuses precedent by reinforcing the grave errors of Wickard, reasoning that state and local government wage policies, while intrastate in nature, substantially affect interstate commerce. Thus, they can be preempted by the federal government.
Here, the damage to the Constitution is twofold: the Court both abuses the Commerce Clause and renders the Tenth Amendment a nullity. In Usery, the Court concluded that wage policy for state employees was a “traditional government function” protected by the Tenth Amendment. But under Garcia, states are at the mercy of the federal government, even when exercising powers that have traditionally been theirs.
Court & Reporter NumberSupreme Court, 469 U.S. 528
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