EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, APPELLANT V. WYOMING, ET AL. No. 81-554 In the Supreme Court of the United States October Term, 1981 On Appeal From the United States District Court for the District of Wyoming Brief for the Equal Employment Opportunity Commission PARTIES TO THE PROCEEDINGS BELOW Additional defendants in the district court were: Ed Herschler, individually and as Governor of the State of Wyoming and as ex officio member of the Wyoming Game and Fish Commmission; the State of Wyoming Game and Fish Department; Earl M. Thomas, individually and as Director of the State of Wyoming Game and Fish Department; John Anselmi, individually and as President of the State of Wyoming Game and Fish Commission; J. W. "Wes" Myers, individually and as Vice President of the State of Wyoming Game and Fish Commission; Verne Barton, Jr., individually and as a member of the State of Wyoming Game and Fish Commission; Dave Wheeler, individually and as a member of the State of Wyoming Game and Fish Commission; Alice Hayes, individually and a member of the State of Wyoming Game and Fish Commission; Fran Osborn, individually and as a member of the State of Wyoming Game and Fish Commission; Gene Bombi, individually and as a member of the State of Wyoming Game and Fish Commission; and the Wyoming Retirement System. TABLE OF CONTENTS Opinion below Jurisdiction Constitutional provisions and statutes involved Statement Summary of argument Argument: Application of the Age Discrimination in Employment Act to state and local government employees is an exercise of powers expressly delegated to Congress and is fully consistent with the Tenth Amendment A. The Act is a valid exercise of Congress' commerce power and does not contravene the Tenth Amendment B. As applied to state and local government employers, the Age Discrimination in Employment Act is appropriate -- legislation to enforce the Fourteenth Amendment Conclusion OPINION BELOW The opinion of the district court (J.S. App. 1a-13a) is reported at 514 F. Supp. 595. JURISDICTION The judgment of the district court (J.S. App. 14a-15a) was entered on May 22, 1981, and the notice of appeal (J.S. App. 16a-17a) was filed on June 19, 1981. The Court noted probable jurisdiction on January 11, 1982. The jurisdiction of this Court is invoked under 28 U.S.C. 1252. United States v. Darusmont, 449 U.S. 292, 293 (1981). CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED The relevant provisions of the Constitution, the Age Discrimination in Employment Act of 1967, 29 U.S.C. (& Supp. III) 621 et seq., and the Wyoming State Highway Patrol and Game and Fish Warden Retirement Act, Wyo. Stat. Section 31-3-101 et seq. (1977), are set forth at J.S. App. 18a-19a. QUESTION PRESENTED Whether Congress violated the Tenth Amendment when it amended Section 11(b) of the Age Discrimination in Employment Act of 1967, 29 U.S.C. 630(b), to include state and local government employers within the coverage of the Act. STATEMENT 1. The Age Discrimination in Employment Act of 1967, 29 U.S.C. (& Supp. III) 621 et seq., prohibits employers from discriminating on the basis of age against employees between the ages of 40 and 70 years by, inter alia, discharging them or requiring them to retire involuntarily. Sections 4(a)(1) and 12(a) of the Act, 29 U.S.C. (& Supp. III) 623(a)(1) and 631(a). The Act initially applied only to private employers. Pub. L. No. 90-202, Section 11(b), 81 Stat. 605. In 1974, Congress extended the prohibitions against age discrimination to federal, State and local government employers. Sections 11(b) and 15, 29 U.S.C. 630(b) and 633a. The Wyoming State Highway Patrol and Game and Fish Warden Retirement Act, Wyo. Stat. Section 31-3-101 et seq. (1977), permits the involuntary retirement of Wyoming Game and Fish Department employees as early as age 55 and imposes mandatory retirement at age 65 (Wyo. Stat. Section 31-3-107(c) and (d) (1977)). J.S. App. 5a-6a. Bill Crump was employed as a District Game Division supervisor by the Wyoming Game and Fish Department, but he was forced to retire at age 55. See J.S. App. 1a. Crump filed a charge of unlawful age discrimination with the Equal Employment Opportunity Commission (Amended Compl. Paragraph 9, at 3). /1/ After unsuccessfully attempting to resolve the matter informally (Amended Compl. Paragraph 10, at 3), the Commission filed this action in the United States District Court for the District of Wyoming, charging that the state's retirement policy violated the Age Discrimination in Employment Act. The Commission sought declaratory relief, as well as back pay and liquidated damages for persons adversely affected by the state retirement policy. Id. at 4-5. Appellees, the State of Wyoming and various individual state officials, moved to dismiss the complaint on the ground that, as applied to the states, the Act is unconstitutional. J.S. App.22. 2. The district court dismissed the complaint on the ground that Congress violated the Tenth Amendment when it extended coverage of the Act to prohibit age discrimination by state and local governments (J.S. App. 1a-13a). The court stated that in 1974 Congress had relied only on its power under the Commerce Clause (Article I, Section 8, Clause 3), and not on the Fourteenth Amendment, in amending the Act (J.S. App. 10a-11a). /2/ Citing this Court's decision in National League of Cities v. Usery, 426 U.S. 833 (1976), the court observed that application of the Act in this case would "affect" state operations in an area of traditional services (J.S. App. 12a). The district court rejected the argument that the state interest in managing personnel matters was outweighed by the national interest in prohibiting age discrimination in employment, noting Congress' "inconsistency" in permitting the involuntary retirement of certain federal law enforcement employees before age 70, while denying the states the power to adopt the same policy (J.S. App. 12a-13a). SUMMARY OF ARGUMENT The district court held that Congress violated the Tenth Amendment in 1974 by extending the protection of the Age Discrimination in Employment Act of 1967 to persons employed by state and local governments. Congress' action in extending to state employees the protection of federal legislation prohibiting arbitrary age discrimination is a valid exercise of Congress' power to regulate commerce and its power to adopt legislation appropriate to enforce the Fourteenth Amendment. 1. The Age Discrimination in Employment Act is a valid exercise of the commerce power. The Act simply prohibits arbitrary treatment of persons because of their ages. We may assume that the Wyoming Game and Fish Department operates in an area of traditional government functions, as that phrase is used in National League of Cities v. Usery, 426 U.S. 833 (1976). Nonetheless, the Act is valid. The power of state government to discriminate arbitrarily in employment on the basis of age is not a legitimate attribute of sovereignty, comparable to the power of a state to make fundamental employment decisions concerning minimum wages and hours. There is no basis for assuming that the state's ability to structure its operations or to provide services will be affected in the slightest by compliance with the Age Discrimination in Employment Act. Absent any evidence that the Act impairs functions essential to the separate and independent existence of the states, it does not conflict with the Tenth Amendment. National League of Cities v. Usery, supra, 426 U.S. at 852. Congress carefully considered the potential costs to employers of generally prohibiting mandatory retirement before age 70; moreover, the Act includes safeguards sufficient to protect the legitimate financial interests of employers. The federal interest in protecting individuals from arbitrary discrimination reflects substantial concerns pertinent to the commerce power and clearly outweighs the state's minimal interest in being free to discriminate arbitrarily, even with respect to employees hired to carry out traditional governmental functions. See National League of Cities v. Usery, supra, 426 U.S. at 852-853; id. at 856 (Blackmun, J., concurring). 2. The Age Discrimination in Employment Act is appropriate legislation to enforce the guarantee of equal protection of the laws. Section 5 of the Fourteenth Amendment permits Congress, for purposes of implementing the constitutional guarantee of equal protection of the laws, to intrude "into * * * spheres of autonomy previously reserved to the States," Fitzpatrick v. Bitzer, 427 U.S. 445, 455 (1976); congressional power under Section 5 is not restricted by the Tenth Amendment. City of Rome v. United States, 446 U.S. 156, 159 (1980). Congress concluded after extensive study that arbitrary age discrimination in employment, like discrimination on account of race, color, national origin, sex and religion, was a serious national problem requiring a legislative remedy. Congress' power under Section 5 is broader than the judicial enforcement power under Section 1 of the Fourteenth Amendment. Legislation reasonably regarded as necessary and proper to assure and give meaning and substance to the rights established in Section 1 is "appropriate" within the meaning of Section 5. The question of what remedial action is necessary to guarantee equal protection has repeatedly been recognized by this Court as a matter primarily for Congress' determination. See Katzenbach v. Morgan, 384 U.S. 641, 651 (1966); City of Rome v. United States, 446 U.S. 156, 176-178 (1980); Fullilove v. Klutznick, 448 U.S. 448, 483-484 (1980). ARGUMENT APPLICATION OF THE AGE DISCRIMINATION IN EMPLOYMENT ACT TO STATE AND LOCAL GOVERNMENT EMPLOYERS IS AN EXERCISE OF POWERS EXPRESSLY DELEGATED TO CONGRESS AND IS FULLY CONSISTENT WITH THE TENTH AMENDMENT A. The Act is a Valid Exercise of Congress' Commerce Power and does not Contravene the Tenth Amendment The "Commerce Clause is a grant of plenary authority to Congress." Hodel v. Virginia Surface Mining & Reclamation Association, Inc., No. 79-1538 (June 15, 1981), slip op. 9-10. As this Court recently reaffirmed, Congress' power to regulate commerce is "'complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution.'" Id. at 10, quoting Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 196 (1824). Neither appellees nor the district court disputes Congress' finding that "the existence * * * of arbitrary discrimination in employment because of age, burdens commerce and the free flow of goods in commerce" (Section 2(a)(4), 29 U.S.C. 621(a)(4)). Nor is there any question as to the reasonableness of the means Congress selected for addressing the problem. Rather, the district court held that enforcement of the Act against the state game and fish department, though plainly within the scope of the Commerce Clause, would violate the Tenth Amendment. The Tenth Amendment provides that "powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." See generally United States v. Darby, 312 U.S. 100, 124 (1941). In National League of Cities v. Usery, 426 U.S. 833 (1976), the Court held that the 1974 amendments to the Fair Labor Standards Act, which "extended the minimum wage and maximum hour provisions to almost all public employees employed by the States and by their various political subdivisions" (426 U.S. at 836), violated the Tenth Amendment because they "directly supplant(ed) the considered policy choices of the States' elected officials and administrators as to how they wish to structure pay scales in state employment" (id. at 848). In National League of Cities, the Court observed that the amendments sought "to regulate directly the activities of States as public employers" (426 U.S. at 841) and spoke "directly to the States qua States" (id. at 847). Finding that "(o)ne undoubted attribute of state sovereignty is the States' power to determine the wages which shall be paid to those whom they employ in order to carry out their governmental functions, what hours those persons will work, and what compensation will be provided where these employees may be called upon to work overtime" (id. at 845), the Court concluded that "the challenged amendments operate to directly displace the States' freedom to structure integral operations in areas of traditional governmental functions * * * " (id. at 852) and, moreover, "would impair the States' 'ability to function effectively in a federal system'" (ibid., quoting Fry v. United States, 421 U.S. 542, 547 n.7 (1975)) and intrude upon state "'functions essential to separate and independent existence'" (426 U.S. at 845, quoting Coyle v. Oklahoma, 221 U.S. 559, 580 (1911), and Lane County v. Oregon, 74 U.S. (7 Wall.) 71, 76 (1868)). The limitation on Congress' express power to regulate commerce that this Court found implicit in the Tenth Amendment is quite narrow. In Fry v. United States, 421 U.S. 542 (1975), the Court rejected a Tenth Amendment challenge to the Economic Stabilization Act of 1970, commerce clause legislation authorizing the President to regulate wage and salary increases for state and local government employees. The continuing vitality of Fry was specifically reaffirmed in National League of Cities. 426 U.S. at 852-853. It is apparent, therefore, that the Tenth Amendment does not preclude all commerce clause legislation affecting a state's power to deal with employees hired to carry out "traditional" or "integral" governmental functions. See also United Transportation Union v. Long Island R.R., No. 80-1925 (Mar. 24, 1982), slip op. 8, 9-12. Indeed, Justice Blackmun joined the opinion of the Court in National League of Cities only "(w)ith the understanding" (426 U.S. at 856) that it adopted "a balancing approach" (ibid.). As explained in Hodel v. Virginia Surface Mining & Reclamation Association, supra, slip op. 19-21, there are at least three prerequisites to establishing a Tenth Amendment violation of the sort found in National League of Cities (id. at 21; emphasis in original): (I)n order to succeed, a claim that congressional commerce power legislation is invalid under the reasoning of National League of Cities (426 U.S. 833) must satisfy each of three requirements. First, there must be a showing tha the challenged statute regulates the "States as States." Id., at 854. Second, the federal regulation must address matters that are indisputably "atrributes 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 functions." Id., at 852. /3/ We recognize that the Age Discrimination in Employment Act, as applied to the Wyoming Game and Fish Department, regulates governmental and not private activity, and that wildlife management can be said to be a traditional government function. However, none of the other legal or factual prerequisites is established here. First, arbitrary discrimination is not an attribute of state sovereignty. See Marshall v. A & M Consolidated Independent School District, 605 F.2d 186, 188 (5th Cir. 1979) (Wisdom, J.); Pearce v. Wichita County, 590 F.2d 128, 132 (5th Cir. 1979); Marshall v. City of Sheboygan, 577 F.2d 1, 6 (7th Cir. 1978); EEOC v. County of Calumet, 519 F. Supp. 195, 202 (E.D. Wis. 1981), appeal pending, No. 81-2120 (7th Cir., argued Jan. 1, 1982); Marshall v. Delaware River and Bay Authority, 471 F. Supp. 886 (D. Del. 1979); EEOC v. Florissant Valley Fire Protection District, 21 Fair Empl. Prac. Cas. 973, 975, 21 Empl. Prac. Dec. Paragraph 30,520, at 13,805 (E.D. Mo. 1979); Usery v. Board of Education, 421 F. Supp. 718, 719-720 (D. Utah 1976). The Age Discrimination in Employment Act does not interfere with the state's power to prescribe reasonable qualifications for those individuals to be employed to carry out state functions (Section 4(f)(1), 29 U.S.C. 623(f)(1)) or to discharge those individuals found unfit for state employment (Section 4(f)(3), 29 U.S.C. (Supp. III) 623(f)(3)). Nor does the Act interfere with the state's legitimate interest in retiring employees who are too old to perform adequately. Section 4(f)(1) of the Act specifically provides that "(i)t shall not be unlawful for an employer * * * to take any action otherwise prohibited * * * where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business * * * " (29 U.S.C. 623(f)(1)). /4/ The Act simply establishes the right of state government employees between the ages of 40 and 70 to be free from arbitrary or invidious discrimination. In cases involving the Equal Pay Act of 1963, 29 U.S.C. 206(d), the courts have consistently rejected state claims that the power to discriminate arbitraily on the basis of sex is an attribute of state sovereignty. E.g., Marshall v. A & M Consolidated Independent School District, 605 F.2d 186, 188 (5th Cir. 1979); Pearce v. Wichita County, 590 F.2d 128, 131-132 (5th Cir. 1979); Marshall v. City of Sheboygan, 577 F.2d 1, 6 (7th Cir. 1978). The rationale of these cases holding the Equal Pay Act to be a constitutional exercise of the commerce power is equally applicable to the Age Discrimination in Employment Act. Both statutes simply prohibit state and local government employers from arbitrarily discriminating against their employees. Compare Marshall v. Kent State University, 589 F.2d 255 (6th Cir. 1978) (holding the Equal Pay Act constitutional, as applied to state employer, under Section 5 of the Fourteenth Amendment); Marshall v. Owensboro-Daviess County Hospital, 581 F.2d 116, 118-120 (6th Cir. 1978) (same); Usery v. Charleston County School District, 558 F.2d 1169, 1170-1171 (4th Cir. 1977) (same); Usery v. Allegheny County Institution District, 544 F.2d 148, 154-156 (3d Cir. 1976), cert. denied, 430 U.S. 946 (1977) (same). Second, there is nothing in the record of this case that suggests that compliance with the modest requirements of the Age Discrimination in Employment Act will "directly impair" Wyoming's ability "to structure integral operations in areas of traditional governmental functions." The budgetary considerations noted in National League of Cities, where federal minimum wage requirements could have forced the restructuring of entire state government departments and required the elimination of entire functions (426 U.S. at 846-852), are absent in this case. Wyoming has not argued that application of the Age Discrimination in Employment Act will have any such adverse budgetary impact upon the states, and both the design of the Act and pertinent congressional findings indicate that it will not. /5/ If age is a "bona fide occupational qualification," a state employer is free to impose a mandatory retirement age; merely requiring a state to consider the facts relevant to such a dicision plainly does not impair the state's ability "to structure integral operations in areas of traditional governmental functions" in any sense comparable to the impairment this Court concluded would follow from the financial consequences of enforcing the statute at issue in National League of Cities. See, e.g., EEOC v. Elrod, No. 80-2810 (7th Cir. Mar. 16, 1982), slip op. 18-20; compare United Transportation Union v. Long Island R.R., supra, slip op. 8,9-12. Thus, the effect upon the states of the Age Discrimination in Employment Act's prohibition of arbitrary age-based discrimination is significantly more limited than the effect of the statute at issue in National League of Cities. There is no interference here with the states' ability to determine the wages, hours, qualifications, number, or functions of state employees; nor does the Act impair any other legitimate power necessary to the separate and independent existence of the states. Finally, under National League of Cities, even direct regulation of the states concerning matters that are attributes of sovereignty and impairing the states' ability to structure integral operations in areas of traditional state functions is permissible if the federal interest outweighs the state interest. As Hodel makes clear: Demonstrating that (the) three requirements (of National League of Cities) are met does not, however, 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. Slip op. 21 n.29 (citations omitted); see United Transportation Union v. Long Island R.R., supra slip op.5-6 n.9. Here, the state's interest is nothing more than the assertion of a prerogative to discriminate against its employees arbitrarily on the basis of age -- an interest no more substantial than the state would have in a prerogative to discriminate arbitrarily on the basis of race, color, sex, religion, or national origin. Such an interest, if it is legitimate at all, is surely minimal where, as here, federal law does not interfere with the state's prescription of reasonable job qualifications or of its employees' functions, compensation, and other terms and conditions of employment. By contrast to the minimal interest asserted by the state, both the original Act and its extension to government employees reflect substantial congressional concerns pertinent to the great purposes of the commerce power. The Act had its genesis in Section 715 of the Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 265, 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 to Congress the results of that study and such legislative recommendations as he determines advisable. /6/ That report, entitled The Older American Worker: Age Discrimination in Employment, was submitted to Congress on June 30, 1965 (Legis. Hist. ADEA 16-41). Among its findings were the following (The Older American Worker, supra, at 18, Legis. Hist. ADEA 35): The consequences of discrimination embrace a wide range of production loss, human hardship, and frustrations. This may well include the loss of important innovations in the fields of science and technology. * * * * * It is a fair estimate that a million man-years of productive time are unused each year because of unemployment of workers over 45; and vastly greater numbers of years are lost because of forced, compulsory, or automatic retirement. * * * * * A substantial portion of the unemployment insurance payments of $1 billion a year to workers 45 and over can be attributed to unemployment resulting in one way or another from the fact of the employee's age. Some of these payments, of course, would go to workers who are between jobs even under conditions of full employment; nonetheless, a large but incalculable proportion involves long-duration unemployment that reflects the difficulty which the older worker faces in attempting to find a new job. The Nation loses, furthermore, potential production in an amount at least two or three times the size of the unemployment insurance payments that might be attributable to discrimination. * * * * * Only a hypothetical calculation can be made of the potential contributions of those who have retired involuntarily. Such a calculation would easily yield several billion dollars a year on the assumption that the participation rate for males 65 and over (in either paid or voluntary activity) might rise to a point about halfway between the present labor force participation rate (28 percent) and the 1948 rate of 47 percent (less than half the participation rate for lower ages), and that earnings would not on the average exceed the amounts possible without reduction of OASDI benefits. The fact that about one-third of the men retiring under OASDI regarded their retirement as involuntary -- as previously indicated -- suggests that these assumptions may not be unreasonable. Moreover, the results of this calculation are similar to those of the late Professor Sumner Slichter who in 1952 estimated $3.8 billion in 1951 prices as a conservative measure of "present loss of production from retired workers." When the ADEA was enacted two years later, the Secretary's report was discussed in both the House and Senate reports. H.R. Rep. No. 805, supra, at 1-2, Legis. Hist. ADEA 74-75; S. Rep. No. 723, supra, at 1-2, Legis. Hist. ADEA 105-106. Those reports further quoted the President's message recommending the legislation as follows: "Hundreds of thousands, not yet old, not yet voluntarily retired, find themselves jobless because of arbitrary age discrimination. Despite our present low rate of unemployment, there has been a persistent average of 850,000 people age 45 and over who are unemployed. Today more than three-quarters of the billion dollars in unemployment insurance is paid each year to workers who are 45 and over. They comprise 27 percent of all the unemployed, and 40 percent of the long-term unemployed." /7/ It was against this background that Congress found and declared that "the existence * * * of arbitrary discrimination in employment because of age, burdens commerce and the free flow of goods in commerce" (Section 2(a)(4), 29 U.S.C. 621(a)(4)). From this perspective, the 1974 extension of the Act to cover federal, state, and local employees is properly viewed as reflecting congressional recognition that the private sector cannot carry the entire responsibility for providing older workers in the nation's economy with productive employment opportunities. In introducing the bill to extend the Act, Senator Bentsen pointed out (118 Cong. Rec. 7745 (1972)) that "Government is the Nation's largest employer with over 10 million employees in State and local government and millions more at the Federal level" and that "Government has the greatest growth rate of any * * * sector of our society * * * ." See also EEOC v. Elrod, supra, slip op. 19-20. In sum, the federal interest (1) in protecting citizens of the United States and noncitizens employed by the states from arbitrary discrimination at the hands of the states, /8/ (2) in preventing unnecessary demands on the social security system and other income maintenance programs, /9/ and (3) in eliminating an unnecessary burden on the free flow of commerce is more than sufficient in the face of a Wyoming's bald assertion of a prerogative to be arbitrary. See EEOC v. Elrod, supra, slip op. 18-21; Aaron v. Davis, 424 F. Supp. 1238, 1241 (E.D. Ark. 1976); Usery v. Board of Education, supra, 421 F. Supp. at 720; see generally Staff of Select Comm. on Aging, 95th Cong., 1st Sess., Report on Mandatory Retirement: The Social and Human Cost of Enforced Idleness 32-37 (Comm. Print 1977), Legis. Hist. ADEA 341-346. /10/ Wyoming cannot show that the Age Discrimination in Employment Act addresses a matter that is "indisputably" an attribute of sovereignty or that compliance with the Act would directly impair its ability "to structure integral operations in areas of traditional governmental functions" (National League of Cities, supra, 426 U.S. at 850); therefore, its Tenth Amendment claim must fail. Even if the prerequisites for establishing a Tenth Amendment claim had been satisfied in this case, the federal interests at stake far outweigh Wyoming's minimal interests in arbitrarily discriminating against its employees on the basis of age. B. As Applied to State and Local Government Employers, the Age Discrimination in Employment Act is Appropriate Legislation to Enforce the Fourteenth Amendment Congressional power to legislate to enforce Section 1 of the Fourteenth Amendment is not limited by the Tenth Amendment. See Hodel v. Virginia Surface Mining & Reclamation Association, No. 79-1538 (June 15, 1981), slip op. 20-21 n.28; City of Rome v. United States, 446 U.S. 156, 179 (1980); Ex parte Virginia, 100 U.S. 339, 346 (1879); EEOC v. Elrod, No. 80-2810 (7th Cir. Mar. 16, 1982), slip op. 14-15. Blake v. City of Los Angeles, 595 F.2d 1367, 1373-1374 (9th Cir. 1979), cert. denied, 446 U.S. 928 (1980); United States v. City of Chicago, 573 F.2d 416, 422-424 (7th Cir. 1978); Usery v. Allegheny County Institution District 544 F.2d 148, 154-156 (3d Cir. 1976). See also Milliken v. Bradley, 433 U.S. 267, 291 (1977); Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976); National League of Cities v. Usery, 426 U.S. 833, 852 n.17 (1976). Having concluded that the Age Discrimination in Employment Act was in some sense (J.S. App. 11a; emphasis added) "passed only under the Commerce Power of Congress," the district court ignored the Equal Employment Opportunity Commission's argument that, as applied to the state, the Act was appropriate legislation to enforce the Fourteenth Amendment and therefore valid under Section 5 of that Amendment. Contrary to the district court's apparent assumption (see J.S. App. 11a), "(t)he question of the constitutionality of action taken by Congress does not depend on recitals of the power which it undertakes to exercise." Woods v. Miller Co., 333 U.S. 138, 144 (1948); see Katzenbach v. Morgan, 384 U.S. 641, 646-647 n.5, 652-656 (1966); Keller v. United States, 213 U.S. 138, 147 (1909); see generally Griffin v. Breckenridge, 403 U.S. 88, 104-107 (1971). Nothing in Article I of the Constitution requires Congress to generate legislative history, or to specify in any way the constitutional basis for its action, in order to enact valid legislation. And surely the meaning of the Constitution does not change depending on whether Congress specifies the "correct" basis for its action; the question of constitutionality is one of power to act, not theory. See, e.g., Marshall v. Owensboro-Daviess County Hospital, supra, 581 F.2d at 120; Usery v. Charleston County School District, supra, 558 F.2d at 1171; Usery v. Allegheny County Institution District, supra, 544 F.2d at 155. /11/ Moreover, although the legislative history of the Age Discrimination in Employment Act is not extensive, what evidence there is supports the conclusion that Congress understood that the 1974 extension of the Act to state and local government employers was supported by both the Commerce Clause and Section 5 of the Fourteenth Amendment. See Arritt v. Grisell, 567 F.2d 1267, 1270-1271 & n.11 (4th Cir. 1977); see generally EEOC v. County of Calumet, 519 F. Supp. 195, 198-200 (E.D. Wis. 1981). Congress first considered extending the Age Discrimination in Employment Act to cover state and local government employers in 1972, when it amended Title VII of the Civil Rights Act of 1964 to cover state and local government employers (Equal Employment Opportunity Act of 1972, Pub. L. No. 92-261, Section 2(f), 86 Stat. 103, 42 U.S.C. 2000e(f)). See 118 Cong. Rec. 7745-7746 (1972) (remarks of Sen. Bentsen), reprinted in U.S. Equal Employment Opportunity Commission, Legislative History of the Age Discrimination in Employment Act 205-206 (1981); S. Rep. No. 92-842, 92d Cong., 2d Sess. 45-46 (1972), Legis. Hist. ADEA 210-211. The amendments to Title VII, of course, were expressly based on both the Commerce Clause and Section 5 of the Fourteenth Amendment. See, e.g., S. Rep. No. 92-415, 92d Cong., 1st Sess. 10-11 (1971), reprinted in Staff of Senate Comm. on Labor and Public Welfare, 92d Cong., 2d Sess., Legislative History of the Equal Employment Opportunity Act of 1972 419-420 (Comm. Print 1972) ("Legis. Hist. Title VII"); H.R. Rep. No. 92-238, 92d Cong., 1st Sess. 19 (1971), Legis. Hist. Title VII 79; 118 Cong. Rec. 1839-1840 (1972), Legis. Hist. Title VII 1173-1174 (remarks of Sen. Javits); 118 Cong. Rec. 1815-1816 (1972), Legis. Hist. Title VII 1113-1115 (remarks of Sen. Williams). The members of the 92d Congress were therefore quite conscious of the breadth of their power to regulate state and local government pursuant to Section 5 of the Fourteenth Amendment. Further, in introducing the legislation that was ultimately enacted to extend coverage of the Age Discrimination in Employment Act to state and local government employees, Senator Bentsen specifically directed the attention of his colleagues to the recent amendments to Title VII, stating (118 Cong. Rec. 15895 (1972), Legis. Hist. ADEA 208): "I believe that the principles underlying these provisions in the EEOC bill are directly applicable to the Age Discrimination in Employment Act." /12/ Moreover, it is plain that Congress regarded arbitrary discrimination based on age as "invidious" and comparable to discrimination based on race, sex, religion, or national origin. In approving the extension of the Age Discrimination in Employment Act to cover state and local government employers, both the House and Senate Committees quoted with approval the following passage from the President's statement recommending the legislation: "Discrimination based on age -- what some people call 'age-ism' -- can be as great an evil in our society as discrimination based on race or religion or any other characteristic which ignores a person's unique status as an individual and treats him or her as a member of some arbitrarily-defined group. Especially in the employment field, discrimination based on age is cruel and self-defeating; it destroys the spirit of those who want to work and it denies the Nation the contribution they could make if they were working." S. Rep. No. 93-690, 93d Cong., 2d Sess. 55 (1974), Legis. Hist. ADEA 251; H.R. Rep. No. 93-913, 93d Cong., 2d Sess. 40 (1974), Legis. Hist. ADEA 254. The frequent comparisons in the legislative history of the Act between discrimination based on age and discrimination based on race, sex, religion, and national origin tend to confirm this view. /13/ Given this perception of the nature of the prohibitions of the Age Discrimination in Employment Act, it is likely that Congress believed, as we do, that the 1974 amendments to the Act were quite plainly supported by Section 5 of the Fourteenth Amendment. See also H.R. Rep. No. 92-238, supra, at 19, Legis. Hist. Title VII 79 (emphasis added): "The Constitution has recognized that it is inimical to the democratic form of government to allow the existence of discrimination in those bureaucratic systems which most directly affect the daily interactions of this Nation's citizens. The clear intention of the Constitution, embodied in the Thirteenth and Fourteenth Amendments, is to prohibit all forms of discrimination." Compare Cleveland Board of Education v. LaFleur, 414 U.S. 632, 659-660 (1974) (Rehnquist, J., dissenting). 1. Section 1 of the Fourteenth Amendment provides that no state shall enact any laws that "deny to any person within its jurisdiction the equal protection of the laws," and Section 5 gives Congress "power to enforce, by appropriate legislation, the provisions of (the Fourteenth Amendment)." Like the necessary and proper clause (United States Constitution, Article 1, Section 8, clause 18), the enforcement clauses of the Civil War Amendments are broad affirmative grants of legislative power: Whatever legislation is appropriate, that is, adapted to carry out the objects the amendments have in view, whatever tends to enforce submission to the prohibitions they contain, and to secure to all persons the enjoyment of perfect equality of civil rights and the equal protection of the laws against State denial or invasion, if not prohibited, is brought within the domain of congressional power. Ex parte Virginia, 100 U.S. 339, 345-346 (1879). Accord: City of Rome v. United States, 446 U.S. 156, 177 (1980); Katzenbach v. Morgan, 384 U.S. 641, 650-651 (1966); South Carolina v. Katzenbach, 383 U.S. 301, 324-327 (1966). Thus, as this Court has repeatedly held, Congress' power to legislate pursuant to the enforcement clauses of the Civil War Amendments is not limited to providing remedies for violations of the substantive provisions of those amendments. See, e.g., City of Rome v. United States, supra, 446 U.S. at 173-178; Oregon v. Mitchell, 400 U.S. 112, 133-134 (Black, J.), 233-236 (Brennan, White, Marshall, JJ.), 283-284 (Stewart, J.), 216 (Harlan, J.), 144-147 (Douglas, J.) (1970); /14/ Katzenbach v. Morgan, supra, 384 U.S. at 648; South Carolina v. Katzenbach, supra, 383 U.S. at 333-334. Under Section 5 of the Fourteenth Amendment Congress may enact any law reasonably deemed necessary and proper to assure and give meaning and substance to the rights established in Section 1. For example, Congress may adopt prophylactic rules prohibiting conduct that does not violate Section 1, if such rules might reasonably be regarded as necessary to prevent conduct that would violate Section 1 or to make meaningful the rights assured in Section 1 of the Fourteenth Amendment. Katzenbach v. Morgan, supra, 384 U.S. at 652-653; see City of Rome v. United States, supra, 446 U.S. at 177; Oregon v. Mitchell, supra, 400 U.S. at 216 (Harlan, J.); cf. Griffin v. Breckenridge, 403 U.S. 88, 104-105 (1971); Jones v. Alfred H. Mayer Co., 392 U.S. 409, 437-444 (1968). Congress may also prescribe action that is not constitutionally required if it is reasonably regarded as necessary to redress past misconduct. See Fullilove v. Klutznick, 448 U.S. 448, 476-478 (Burger, C.J.), 503-504 (Powell, J., concurring) (1980). And, of course, Congress may provide remedies for violations of the substantive provisions of Section 1. E.g., Ex parte Virginia supra. Thus, while the Equal Protection Clause does not prohibit a state's use of an employment test that has a racially disproportionate impact (Washington v. Davis, 426 U.S. 229 (1976)) or a veterans' employment preference that has a disproportionate impact on persons of one sex (Massachusetts v. Feeney, 434 U.S. 884 (1977)) or a mandatory retirement age of 50 for uniformed police officers (Massachusetts Board of Retirement v. Murgia, 427 U.S. 307 (1976)), Section 5 of the Fourteenth Amendment empowers Congress to prohibit the use of such devices if prohibition would constitute "appropriate legislation" to enforce the provisions of the Equal Protection Clause. Such a prohibition would be "appropriate legislation" under Section 5 if (1) it reasonably "may be regarded as an enactment to enforce the Equal Protection Clause" (Katzenbach v. Morgan, supra, 384 U.S. at 651); (2) it "is 'plainly adapted to that end'" (ibid.); and (3) it "is not prohibited by but is consistent with 'the letter and spirit of the constitution'" (ibid.). We think it too plain to require argument that legislation prohibiting the use of employment tests that have the effect of discriminating against racial minorities or women would constitute "appropriate legislation" to enforce the Equal Protection Clause of the Fourteenth Amendment. Cf. Griggs v. Duke Power Co., 401 U.S. 424 (1971). We think it equally plain that legislation prohibiting arbitrary age discrimination is no less "appropriate." Appellees have expressed a contrary view (Mot. to Aff. at 7-9); we therefore elaborate. 2. The Equal Protection Clause of the Fourteenth Amendment promises that all persons similarly situated will be similarly treated by their government; the Equal Protection Clause assures that a state government will distinguish among those within its jurisdiction only upon reasonable grounds having some relationship to the goals to be achieved. See, e.g., Logan v. Zimmerman Brush Co., No. 80-5950 (Feb. 24, 1982), slip op. 16-20 (plurality opinion); slip op. 2 (Powell, J.); Weber v. Aetna Casualty & Surety Co., 406 U.S. 164 (1972); Reed v. Reed, 404 U.S. 71 (1971); Reynolds v. Sims, 377 U.S. 533 (1964). Drawing lines between groups of individuals -- i.e. selecting the relevant classifying feature -- is essentially a legislative function. See, e.g., Schweiker v. Wilson 450 U.S. 221, 234-235 (1981); United States R.R. Retirement Board v. Fritz, 449 U.S. 166, 179 (1980). As this Court noted in Massachusetts Board of Retirement v. Murgia, supra, 427 U.S. at 314, the rational-basis standard for evaluating Equal Protection claims "reflect(s) the Court's awareness that the drawing of lines that create distinctions is peculiarly a legislative task and an unavoidable one." See generally Louisville Gas Co. v. Coleman, 277 U.S. 32, 41 (1928) (Holmes, J., dissenting). That "the line might have been drawn differently * * * is a matter for legislative, rather than judicial, consideration." United States R.R. Retirement Board v. Fritz, supra, 449 U.S. at 179. Thus unless the legislative classification is wholly arbitrary, there is generally no basis for a court to invalidate legislation under the Equal Protection Clause. City of New Orleans v. Dukes, 427 U.S. 297, 303-304 (1976). The institutional limitations that generally constrain the judiciary to employ such a "relaxed standard" (Massachusetts Board of Retirement v. Murgia, supra, 427 U.S. at 314) in evaluating claims based on the Equal Protection Caluse are, by definition, inapplicable to Congress. They provide no basis for restricting Congress' power to legislate to enforce the rights created by the Equal Protection Clause of the Fourteenth Amendment under Section 5. A mandatory retirement statute that did not rationally further any legitimate state purpose would violate the Equal Protection Clause, even as measured against the relaxed standard the courts must use. Compare Logan v. Zimmerman Brush Co., supra, slip op. 15-20 (plurality opinion), slip op. 2 (Powell, J.), with Massachusetts Board of Retirement v. Murgia, supra, 427 U.S. at 314-316. /15/ The Age Discrimination in Employment Act simply requires a closer fit between the state's goals and the means used to reach them. If "youth" is a "bona fide occupational qualification reasonably necessary to the normal operation of the particular business" (Section 4(f)(1), 29 U.S.C. 623(f)(1)), the state may use age as a criterion for employment or retire employees who are older than the relevant age. What the Act forbids, however, are arbitrary distinctions based on stereotyped assumptions rather than analysis or determinations based on individual merit. Compare Los Angeles Department of Water & Power v. Manhart, 435 U.S. 702, 707-710 (1978). /16/ After extensive study of age discrimination in employment, Congress made explicit findings concerning the existence of substantial arbitrary discrimination and the pressing need for legislation (Section 2, 29 U.S.C. 621; emphasis added): (a) The Congress hereby finds and declares that -- (1) in the face of rising productivity and affluence, older workers find themselves disadvantaged in their efforts to retain employment, and especially to retain employment, and especially to regain employment when displaced from jobs; (2) the setting of arbitrary age limits regardless of potential for job performance has become a common practice, and certain otherwise desirable practices may work to the disadvantage of older persons; (3) the incidence of unemployment, especially long-term unemployment with resultant deterioration of skill, morale, and employer acceptability is, relative to the younger ages, high among older workers; their numbers are great and growing; and their employment problems grave; (4) the existence in industries affecting commerce, of arbitrary discrimination in employment because of age, burdens commerce and the free flow of goods in commerce. (b) It is therefore the purpose of this chapter to promote employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment; to help employers and workers find ways of meeting problems arising from the impact of age on employment. Having found that the establishment of "arbitrary age limits" had become "common practice" among employers with tragic consequences for older workers, Congress broadly prohibited age discrimination against any individual between the ages of 40 and 65 (later raised to 70), unless the employer could show that "youth" was a bona fide occupational qualification reasonably necessary to the normal operation of the business (Section 4, 29 U.S.C. (& Supp. III) 623). Of course, as this Court observed in Massachusetts Board of Retirement v. Murgia, supra, 427 U.S. at 315, "physical ability generally declines with age." It does not follow, however, that his general truth can support mandatory retirement at any particular age or in any particular kind of job. For example, age 55 but not 50 might be a justifiable retirement age for a firefighter; neither may be appropriate for a fire department administrator. See EEOC v. City of St. Paul, 500 F. Supp. 1135 (D. Minn. 1981), aff'd, No. 81-1037 (8th Cir. Mar. 2, 1982). The evidence before Congress in 1967 indicated, however, that in too many cases employers prescribed age limitations that were purely arbitrary, based on nothing more substantial than the general truth that physical ability declines with age and assumptions about the significance of that fact. See, e.g., Secretary, United States Department of Labor, The Older American Worker: Age Discrimination in Employment 7-8 (1965), Legis. Hist. ADEA 24-25. As the Secretary of Labor concluded in his report to Congress in 1965, "(t)here is persistent and widespread use of age limits in hiring that in a great many cases can be attributed only to arbitrary discrimination against older workers on the basis of age and regardless of ability." The Older American Worker, supra, at 27, Legis. Hist. ADEA 37. Congress' decision to prohibit all discrimination on the basis of age against individuals between 40 and 65 years of age but to permit employers to justify the use of age as an employment criterion was in part a response to this widespread use of arbitrary age limits based on assumptions too readily accepted. Given the serious consequences for the individual and the minimal burden on the employer, Congress' action was plainly adapted to preventing arbitrary discrimination based on age. The Act is consistent with both the letter and spirit of the Constitution. /17/ Appellees contend that the Age Discrimination in Employment Act is not "appropriate legislation" to "enforce" the Equal Protection Clause of the Fourteenth Amendment because it (Mot. to Aff. at 8-9) "in effect, authorize(d) the states to discriminate against employees who are younger than 40, or older than 70," apparently suggesting that the Act is, therefore, inconsistent with the Equal Protection component of the Fifth Amendment Due Process Clause. The short answer is that the Act does not authorize discrimination on the basis of age at any age or deprive any individual of rights he otherwise would have; it simply does not prohibit age discrimination against an individual who is younger than 40 or older than 70. See, e.g., Katzenbach v. Morgan, supra, 384 U.S. at 657; EEOC v. County of Calumet, supra, 519 F. Supp. at 201-202 n.4. It is, of course, within the legislative discretion to address only those manifestations of a problem that seem especially acute, or otherwise to proceed one step at a time. See, e.g., Dandridge v. Williams, 397 U.S. 471 (1970); Williamson v. Lee Optical Co., 348 U.S. 483 (1955). /18/ Thus, the Age Discrimination in Employment Act is "appropriate legislation" to enforce the Fourteenth Amendment because (1) it is an enactment "to enforce" the Equal Protection Clause of that provision; (2) it is plainly adapted to that end; and (3) it does not offend any provision of the Constitution. The lower courts that have considered the issue are, accordingly, in general agreement that Congress' 1974 extension of the Act to protect state and local government employees against age discrimination is "appropriate legislation" to enforce the Fourteenth Amendment. See EEOC v. Elrod, No. 80-2810 (7th Cir. Mar. 16, 1982), slip op. 3-15; Arritt v. Grisell, 567 F.2d 1267, 1271 (4th Cir. 1977); Adams v. James, 526 F. Supp. 80, 84 (M.D. Ala. 1981); EEOC v. County of Calumet, supra, 519 F. Supp. at 196-200; Johnson v. Mayor of Baltimore, 515 F. Supp. 1287, 1292 (D. Md. 1981); Carpenter v. Pennsylvania Liquor Control Board, 508 F. Supp. 148, 149 (E.D. Pa. 1981); Marshall v. Delaware River and Bay authority, 471 F. Supp. 886, 891-892 (D. Del. 1979); Remmick v. Barnes County, 435 F. Supp. 914, 916 (D.N.D. 1977); Aaron v. Davis, 424 F. Supp. 1238, 1241 (E.D. Ark. 1976); Usery v. Board of Education, 421 F. Supp. 718, 720-721 (D. Utah 1976). Contra, Taylor v. Department of Fish and Game, 523 F. Supp. 514 (D. Mont. 1981). Accordingly, Section 5 of the Fourteenth Amendment and, for reasons previously discussed, the Commerce Clause each independently supports the constitutionality of the Act as here applied. CONCLUSION The judgment of the district court should be reversed. Respectfully submitted. REX E. LEE Solicitor General LAWRENCE G. WALLACE Deputy Solicitor General GEORGE W. JONES Assistant to the Solicitor General MICHAEL J. CONNOLLY General Counsel PHILIP B. SKLOVER Associate General Counsel VELLA M. FINK Assistant General Counsel KENNETH BURCHFIEL Attorney Equal Employment Opportunity Commission APRIL 1982 /1/ The Commission is the agency charged with enforcing the Act. See Section 2 of Reorg. Plan No. 1 of 1978, 92 Stat. 3781. /2/ In support of their motion to dismiss, appellees argued that the Act, "even if passed under the Fourteenth Amendment, cannot apply here where there is no impermissible violation of that amendment's equal protection provisions" (J.S. App. 2a). Because it concluded that Congress had relied only upon the Commerce Clause in extending the Act to state and local governments, the district court did not address this issue. /3/ In United Transportation Union v. Long Island R.R., supra, the Court applied the "three-prong test" set out in Hodel, and rejected a claim that application of the Railway Labor Act (45 U.S.C. 151 et seq.) to a state-owned railroad violated the Tenth Amendment. /4/ With respect to the bona fide occupational qualification standard, the Senate Committee on Human Resources explained, S. Rep. No. 95-493, 95th Cong., 1st Sess. 10-11 (1977), reprinted in U.S. Equal Employment Opportunity Commission, Legislative History of the Age Discrimination in Employment Act 443-444 (1981) ("Legis. Hist. ADEA"): The committee intends to make clear that under this legislation an employer would not be required to retain anyone who is not qualified to perform a particular job. For example, in certain types of particularly arduous law enforcement activity, there may be a factual basis for believing that substantially all employees above a specified age would be unable to continue to perform safely and efficiently the duties of their particular jobs, and it may be impossible or impractical to determine through medical examinations, periodic reviews of current job performance and other objective tests the employees' capacity or ability to continue to perform the jobs safely and efficiently. See also 123 Cong. Rec. 34296 (remarks of Sen. Williams), 34319 (1977) (remarks of Sen. Javits), Legis. Hist. ADEA 483, 506; 113 Cong. Rec. 34747 (1967) (remarks of Rep. Dent), Legis. Hist. ADEA 158. See generally Stewart v. Smith, No. 80-1340 (D.C. Cir. Mar. 9, 1982), slip op. 12 n.26. Wyoming has not asserted that the mandatory retirement provision at issue in this case is a bona fide occupational qualification within the meaning of Section 4(f)(1). Indeed, that the state retirement statute specifically contemplates that individual fish and game employees may be permitted to continue working on a year-to-year basis until age 65 is some indication that the age 55 standard is not a bona fide occupational qualification. See generally Johnson v. Mayor of Baltimore, 515 F. Supp. 1287, 1296-1301 (D. Md. 1981), cert. denied, No. 81-1112 (Feb. 22, 1982). /5/ In the district court, Wyoming merely argued that Congress had intruded into an area that was traditionally the domain of the states. See Br. in Support of Mot. to Dismiss at 8. In view of the State's failure to make any showing of adverse economic impact, and the fact that the Act does not require the retention of any employee who is unable to perform his or her job, or prohibit nondiscriminatory reductions in force, there is no basis whatsoever for the district court's assertion that "the State could be saddled with greater economic responsibilities in keeping its law enforcement personnel on its payrolls and additional 10 years" (J.S. App. 12a). Moreover, Section 4(f)(2) of the Act (29 U.S.C. (Supp. III) 623(f)(2)), which provides that an employer may observe the terms of "bona fide employee benefit plan(s) such as * * * retirement, pension, or insurance plan(s) * * * ," was specifically intended to eliminate the only significant adverse financial consequence for employers that could result from the Act's proscription of arbitrary age discrimination. See generally Alford v. City of Lubbock, 664 F.2d 1263, 1269-1270 (5th Cir. 1982); 44 Fed. Reg. 30648-30649 (1979). As Senator Javits explained in 1967 (113 Cong. Rec. 31255 (1967), Legis. Hist. ADEA 146): The meaning of this provision is as follows: An employer will not be compelled under this section to afford to older workers exactly the same pension, retirement, or insurance benefits as he affords to younger workers. See ibid. (remarks of Sen. Yarborough); 113 Cong. Rec. 34727 (1967) (remarks of Rep. Daniels); H.R. Rep. No. 805, 90th Cong., 1st Sess. 4 (1967), Legis. Hist. ADEA 77; S. Rep. No. 723, 90th Cong., 1st Sess. 4 (1967), Legis. Hist. ADEA 108; H.R. Rep. No. 95-527 (Pt. 1), 95th Cong., 1st Sess. 26-27 (1977), Legis. Hist. ADEA 386-387; S. Rep. No. 95-493, 95th Cong., 1st Sess. 9-10 (1977), Legis. Hist. ADEA 442-443; 123 Cong. Rec. 34295 (1977) (remarks of Sen. Williams), Legis. Hist. ADEA 482; 124 Cong. Rec. 8218-8219 (1978) (remarks of Sen. Javits), Legis. Hist. ADEA 539-540; see also Age Discrimination in Employment: Hearings on S. 830 and S. 788 Before the Subcomm. on Labor of the Senate Comm. on Labor and Public Welfare, 90th Cong., 1st Sess. 27-30, 53, 106-107 (1967). More specifically, in extending the protections of the Act to employees older than 65, Congress carefully considered the potential economic consequences and concluded that employers would not be subjected to significant additional costs: The argument that pension and other employee benefit plan costs would increase if the act's upper age limit is increased has not been substantiated. S. Rep. No. 95-493, supra, at 5, Legis. Hist. ADEA 438; see id. at 14-16, Legis. Hist. ADEA 447-449. See also 123 Cong. Rec. 34295 (remarks of Sen. Williams), 34297 (1977) (remarks of Sen. Javits), Legis. Hist. ADEA 482, 484; 124 Cong. Rec. 7881 (remarks of Rep. Hawkins), 8218-8219 (1978) (remarks of Sen. Javits). /6/ See note 16, infra. A more detailed recounting of the Act's origins is set forth in EEOC v. Elrod, supra, slip op. 7 n.3. /7/ See 113 Cong. Rec. 34741 (1967) (remarks of Rep. Perkins), Legis. Hist. ADEA 152; 113 Cong. Rec. 34744 (1967) (remarks of Rep. Hawkins), Legis. Hist. ADEA 155; 113 Cong. Rec. 34745 (1967) (remarks of Rep. Eilberg), Legis. Hist. ADEA 156; 113 Cong. Rec. 34746 (1967) (remarks of Rep. Dent), Legis. Hist. ADEA 157; 113 Cong. Rec. 34749 (1967) (remarks of Rep. Randall), Legis. Hist. ADEA 160; 113 Cong. Rec. 34752 (1967) (remarks of Rep. Dwyer), Legis. Hist. ADEA 163. /8/ See note 13, infra; Staff of Select Comm. on Aging, 95th Cong., 1st Sess., Report on Mandatory Retirement: The Social and Human Cost on Enforced Idleness 22-23 (Comm. Print 1977), Legis. Hist. ADEA 331-332. /9/ See, e.g., Staff of Select Comm. on Aging, 95th Cong., 1st sess., Report on Mandatory Retirement: The Social and Human Cost of Enforced Idleness 46-47 (Comm. Print 1977) (views of Rep. Biaggi), Legis. Hist. ADEA 355-356; 123 Cong. Rec. 29015 (1977) (remarks of Rep. Zeferetti), Legis. Hist. ADEA 412; 123 Cong. Rec. 30567 (1977) (remarks of Rep. McKinney), Legis. Hist. ADEA 426; 123 Cong. Rec. 30571 (1977) (Remarks of Rep. Rooney), Legis. Hist. ADEA 430; 123 Cong. Rec. 30572 (1977) (remarks of Rep. Leggett), Legis. Hist. ADEA 438; 123 Cong. Rec. 34294 (1977) (remarks of Sen. Williams), Legis. Hist. ADEA 481; S. Rep. No. 95-493, supra, at 4, Legis. Hist. ADEA 437. /10/ Under the Act, there is no mandatory retirement age for most federal employees. The district court deemed it significant, however, that Congress preserved mandatory retirement provisions for certain federal law enforcement personnel (see 5 U.S.C. (Supp. IV) 8335). That exemption was the product of an agreement to provide the committees with jurisdiction over the retirement programs at issue the opportunity to review the mandatory retirement provisions. See Vance v. Bradley, 440 U.S. 93, 97 n.12 (1979). During consideration of the 1978 amendments to the Act in the House, Representative Spellman offered an amendment on behalf of the House Post Office and Civil Service Committee (123 Cong. Rec. 30556 (1977), Legis. Hist. ADEA 415): to continue in effect those mandatory retirement provisions which are applicable to specific civil service occupations such as air traffic controller, law enforcement officer and firefighter. Also, this amendment will leave intact the existing retirement provisions applicable to Foreign Service personnal (sic) and employees of the Central Intellignece Agency. * * * * * I hasten to point out that this amendment does not indicate opposition perse (sic) to elimination of mandatory retirement for air traffic controllers, firefighters, and other specific occupations. However, since most of these mandatory retirement provisions are part of liberalized retirement programs, our committee believes that such provisions should not be repealed until the individual retirement programs have been reexamined. As Representative Hawkins states in agreeing to the amendment (ibid.): By this action we are reaffirming the mandatory retirement ages in the statutes applicable to these positions. The sole purpose of this agreement is to afford the committees the opportunity to review these statutes. Consequently, Congress' failure to eliminate mandatory retirement provisions affecting federal law enforcement personnel provides no basis for discounting the significance of the federal interest in prohibiting arbitrary age discrimination. /11/ Pennhurst State School and Hospital v. Halderman, 451 U.S. 1 (1981) is not to the contrary. The Court there held that Section 111 of the Developmentally Disabled Assistance and Bill of Rights Act of 1975 (42 U.S.C. (& Supp. III) 6010) created no substantive rights enforceable by the mentally retarded. In rejecting the contention that the Act was adopted pursuant to Section 5 of the Fourteenth Amendment rather than the spending power and was therefore applicable to all states, whether or not they received financial assistance under the Act, the Court noted that "we should not quickly attribute to Congress an unstated intent to act under its authority to enforce the Fourteenth Amendment" because "such legislation imposes congressional policy on a State involuntarily and because it often intrudes on traditional state authority" (451 U.S. at 16). See id. at 35 (White, J., dissenting in part). This principle is a guide to statutory construction, but it has no application in a case such as this where Congress' intention to impose its policy on the states is clear. EEOC v. Elrod, supra, slip op. 13-14 n.8. In such circumstances, Congress must be presumed to have acted pursuant to whatever authority it had to act. Compare Railway Labor Executives' Association v. Gibbons, No. 80-415 (Mar. 2, 1982), slip op. 10-11. /12/ Senator Bentsen's proposal was included in the Fair Labor Standards Amendment of 1972 as reported by the Senate Committee on Labor and Public Welfare (S. Rep. No. 92-842, 92d Cong., 2d Sess. 45-46, 93-94 (1972), reprinted in part, Legis. Hist. ADEA 210-211), but Congress adjourned before the legislation was enacted. See S. Rep. No. 93-147, 93d Cong., 1st Sess. 103-104 (1972). An identical provision was approved by the Senate Committee on Labor and Public Welfare in 1973 (S. Rep. No. 93-300, 93d Cong., 1st Sess. 56-57, 107-108 (1973) (reprinted in part, Legis. Hist. ADEA 246-247) and was enacted without change in 1974, S. Rep. No. 93-690, 93d Cong., 2d Sess. 55-56 (1974), Legis. Hist. ADEA 251-252; H.R. Rep. No. 93-913, 93d Cong., 2d Sess. 16, 40-41 (1974), reprinted in part, Legis. Hist. ADEA 254-255; Pub. L. No. 93-259, Section 28(a), 88 Stat. 74; see generally S. Rep. No. 93-846, 93d Cong., 2d Sess. 112-113 (1974). /13/ See, e.g., 110 Cong. Rec. 2597 (1964) (remarks of Rep. Pucinski), Legis. Hist. ADEA 6; 113 Cong. Rec. 31256-31257 (1967) (remarks of Sen. Young), Legis. Hist. ADEA 147-148; 113 Cong. Rec. 34742 (1967) (remarks of Rep. Burke), Legis. Hist. ADEA 153; 113 Cong. Rec. 34744 (1967) (remarks of Rep. Kelly), Legis. Hist. ADEA 155; 113 Cong. Rec. 34746 (1967) (remarks of Rep. Olsen), Legis. Hist. ADEA 157; 118 Cong. Rec. 15895 (1972) (remarks of Sen. Bentsen), Legis. Hist. ADEA 208; 123 Cong. Rec. 29004-29005 (1977) (remarks of Rep. Findley), Legis. Hist. ADEA 401-402; 123 Cong. Rec. 29009 (1977) (remarks of Rep. Pepper), Legis. Hist. ADEA 406; 123 Cong. Rec. 29011 (1977) (remarks of Rep. Cohen), Legis. Hist. ADEA 408; 123 Cong. Rec. 29014(1977) (remarks by Rep. Waxman), Legis.Hist. ADEA 411; 123 Cong. Rec. 30557(1977) (remarks by Rep. Hillis), Legis.Hist. ADEA 416; 123 Cong. Rec. 30563(1977) (remarks by Rep. Pepper), Legis.Hist. ADEA 422; 123 Cong. Rec. 30566 (1977) (remarks of Rep. McKinney), Legis. Hist. ADEA 425; S. Rep. No. 95-493, 95th Cong., 1st Sess. 3 (1977), Legis. Hist. ADEA 436; S. Rep. No. 95-493, supra, at 34, Legis. Hist. ADEA 467 (additional views); see also Staff of Select Comm. on Aging, 95th Cong., 1st Sess., Report on Mandatory Retirement: The Social and Human Cost of Enforced Idleness vii, 38 (Comm. Print 1977), Legis. Hist. ADEA 309, 347. See also note 16, infra. /14/ There was no opinion for the Court in Oregon v. Mitchell. Nevertheless, the Court unanimously upheld Congress' five-year ban on the use of literacy tests in state and national elections, although literacy tests are not per se invalid under Section 1 of the Fifteenth Amendment, Lassiter v. Northampton County Board of Elections, 360 U.S. 45 (1959). Justice Douglas relied on Section 5 of the Fourteenth Amendment; the other eight Members of the Court relied on Section 2 of the Fifteenth Amendment. /15/ Of course, nothing in Murgia suggests that classifications based on age are totally beyond the purview of Section 1 of the Fourteenth Amendment. See also note 17, infra. It would, for example, clearly be unconstitutional for a state to impose capital punishment for traffic offenses on persons aged 45 and over, while imposing only fines on younger persons for the same offenses. /16/ In this respect, the Age Discrimination in Employment Act is similar to Title VII of the Civil Rights Act of 1964. Indeed, as the Fifth Circuit has noted, "(w)ith a few minor exceptions the prohibitions of (the Age Discrimination in Employment Act) are in terms identical to those of Title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.) except that 'age' has been substituted for 'race, color, religion, sex, or national origin.'" Hodgson v. First Federal Savings & Loan Association, 455 F.2d 818, 820 (1972) (Tuttle, J.) (footnote omitted); see Lorillard v. Pons, 434 U.S. 575, 584 (1978); EEOC v. Elrod, supra, slip op. 10. Congress first considered enacting legislation to prohibit age-based discrimination during the legislative process that culminated in the enactment of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. See Civil Rights: Hearings Before Subcomm. No. 5 of the House Comm. on the Judiciary, 88th Cong., 1st Sess., Pt. III, 2282-2290, 2298 (1963); H.R. Rep. No. 914, 88th Cong., 1st Sess. 15 (1963); 110 Cong. Rec. 2596-2599, 9911-9913, 13490-13492 (1964), Legis. Hist. ADEA 5-8, 9-11, 12-14. Because of its concern that the particular problems associated with age discrimination should be explored more fully (e.g., 110 Cong. Rec. 2596-2597 (1964) (remarks of Rep. Celler), Legis. Hist. ADEA 5-6), Congress directed the Secretary of Labor to study the issue prior to enactment of any such legislation (Civil Rights Act of 1964, Pub. L. No. 88-352, Title VII, Section 715, 78 Stat. 265). See pages 15-17, supra. /17/ Contrary to appellees' apparent assertion, Oregon v. Mitchell, 400 U.S. 112 (1970), provides no support for the proposition that (Mot. to Aff. at 8) "classifications based upon age do not fall within the Equal Protection Clause" or that such classifications are per se inappropriate subjects for legislation under Section 5 of the Fourteenth Amendment. A majority of the Court voted to invalidate Congress' attempt to lower the voting age in state elections from 21 to 18, but no one suggested that any classification based on age is outside the scope of the Equal Protection Clause or that such a classification is necessarily an inappropriate subject for Section 5 legislation. Justice Black took the position that the Constitution reserved to the states the power to establish voter qualifications in state and local elections and, unless necessary to remedy racial discrimination, Congress could not interfere with the states' exercise of that power. See 400 U.S. at 130. Justice Harlan voted to invalidate the legislation because, in his view, the Fourteenth Amendment simply did not encompass "political rights" or, more specifically, the right to vote and, therefore, Congress had no power to legislate with respect to voter qualifications pursuant to Section 5. 400 U.S. at 154-200. Justice Stewart, writing for himself, Chief Justice Burger, and Justice Blackmun, agreed with Justice Black that the Constitution reserves to the states the power to set voter qualifications, including reasonable age limitations, and concluded that, unlike the situation presented in Katzenbach v. Morgan, 384 U.S. 641 (1966), there was no basis for regarding reduction of the minimum voting age to 18 as necessary to prevent invidious discrimination of any sort. 400 U.S. at 293-296. Outside the electoral context, classifications based on age are subject to the same scrutiny under the Fourteenth Amendment as are other legislative classifications. See note 15, supra. /18/ No other constitutional objection to the Act has been suggested.