928                                    ARIZONA LAW REVIEW                                   [Vol. 31


restraints on Congress' power under the Commerce Clause were contained in the federal political process rather than in the judicial process.119 Quoting Chief Justice Marshall's opinion in Gibbons v. Ogden, Justice Brennan grounded his conclusion in the concept that Congress is composed of elected representatives from the states and, therefore, the conscience of those representatives and the influence of their constituents should be its only guide.120 Criticizing Brennan's reasoning, Justice Rehnquist, writing for the majority, contended that the passage of the seventeenth amendment deprived the state governments of their representation in the federal political process.121




Although National League of Cities restricted the reach of the Commerce Clause by exempting "traditional government functions" from congressional acts, several cases following National League of Cities seemed to ignore the limitation.  For example, in Hodel v. Virginia Surface Mining and Reclamation Association, Inc., 122 the states challenged the constitutionality of the Surface Mining Control and Reclamation Act of 1977.  This Act directly affected government functions by requiring states to meet certain minimum standards if they chose to use their own program to monitor and control surface mining or, if they failed to meet the minimum federal standards, to adopt federal programs.  The states argued that the threat of federal usurpation of their roles would coerce them into enforcing the Act and, ultimately, had the effect of regulating the states as states.123 The Court held that the federal government could impose minimum standards on the states and concluded that displacement of state programs was a valid exercise of federal authority under the Commerce Clause, notwithstanding the tenth amendment.124

Following Hodel, the Court excluded state proprietary functions125 and the operation of railroads126 from "traditional government functions" and, in 1983, the Supreme Court upheld the application of the Commerce Clause to all state functions to prevent age discrimination.127 Two years later, in 1985, Garcia gave the Court the opportunity to review National League of Cities and its exemption for "traditional government functions."




In Garcia, the San Antonio Metropolitan Transit Authority (SAMTA) disputed a Department of Labor's opinion which stated that its public mass-transit activities were not "traditional government functions" and, therefore,

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119. Id. at 857 (Brennan, J., dissenting).

120. Id. (federal senators are no longer dependant on state legislators for reelection).

121. Id. at 841 n.l2.

122. 452 U.S. 264(1981).

123. Id. at 275.

124. Id. at 283-93.

125. Jefferson County Pharmaceutical Ass'n, Inc. v. Abbott Laboratories, 460 U.S. 150 (1983).

126. United Transp. Union v. Long Island R.R. Co., 455 U.S. 678 (1982).

127. E.E.O.C. v. Wyoming, 460 U.S. 226 (1983).

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