Eeoc v. Wyoming, 460 U.S. 226 (1983)

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 reexamined 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I begin by analyzing the Commerce Clause rationale, for it was upon this power that Congress expressly relied when it originally enacted the Age Act in 1967, see 29 U.S.C. § 621, and when it extended its protections to state and local government employees, see H.R.Rep.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}

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 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 -- subject only to constitutional limits -- 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 workforce 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 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 -- such as law enforcement officers -- 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 sovereignty.

The third prong of the National League of Cities test is that the federal intrusion must impair the ability of the state to structure integral operations. Wyoming cites several ways in which the Age Act interferes with its ability to structure state services, and several amici inform us of additional difficulties, some economic, some not, that are engendered by the Act.

It is beyond dispute that the statute can give rise to increased employment costs caused by forced employment of older individuals. Since these employees tend to be at the upper end of the pay scale, the cost of their wages while they are still in the workforce is greater. And since most pension plans calculate retirement benefits on the basis of maximum salary or number of years of service, pension costs are greater when an older employee retires.{4} The employer is also forced to pay more for insuring the health of older employees because, as a group, they inevitably carry a higher-than-average risk of illness. See, e.g., Pollock, Gettman, & Meyer, Analysis of Physical Fitness and Coronary Heart Disease Risk of Dallas Area Police Officers, 20 J.Occup.Med. 393 (1978); N. Shock, Cardiac Performance and Age, in Cardiovascular Problems, Perspectives and Progress 3-24 (H. Russek ed.1976); J. Hall & J. Zwemer, Prospective Medicine (2d ed.1979). Since they are -- especially in law enforcement -- also more prone to on-the-job injuries, it is reasonable to conclude that the employer’s disability costs are increased. See generally, D. Gregg & V. Lucas, Life and Health Insurance Handbook (3d ed.1973); S. Huebner & K. Black, Life Insurance (10th ed.1982).

Noneconomic hardships are equally severe. Employers are prevented from hiring those physically best able to do the job. Since older workers occupy a disproportionate share of the upper-level and supervisory positions, a bar on mandatory retirement also impedes promotion opportunities. Lack of such opportunities tends to undermine younger employees’ incentive to strive for excellence, and impedes the state from fulfilling affirmative action objectives.

The Federal Government can hardly claim that the objectives of decreasing costs and increasing promotional opportunities are impermissible: many of the same goals are cited repeatedly to justify the "enclaves" of federal exceptions to the Age Act. For example, mandatory retirement is still the rule in the Armed Services, 10 U.S.C. § 1251 (1976 ed., Supp. V), and the Foreign Service, 22 U.S.C. § 4052 (1976 ed., Supp. V), despite passage of the Age Act. The House Committee on Armed Services continues, apparently, to think it essential to have a mechanism to assure that officers from positions of command are vigorous and free from infirmities generally associated with age. H.R.Rep. No. 961462, p. 8 (1980). Similarly, the House Committee on Post Office and Civil Service, while acknowledging the "unfairness of a mandatory retirement age," H.R.Rep. No. 96-992, pt. 2, p. 30 (1980), concluded that it remains necessary in the Foreign Service "for the maintenance of predictable career patterns," ibid., to prevent "unavailability for worldwide assignment," ibid., and to "restore the `flow’ [i.e., promotional opportunities] to the system," id. at 15. See also 5 U.S.C. § 335. It is difficult to grasp just how Congress reconciles that view with its legislation forcing the states to comply with rigid standards.

The Commission answers the State’s contentions by arguing that, even under the Age Act, it is possible to effectuate some of the State’s goals. According to appellant, adverse economic impact is mitigated by 29 U.S.C. § 623(f)(2) (1976 ed., Supp. V), which provides that an employer may

observe the terms of a bona fide employee benefit plan such as a retirement, pension, or insurance plan, which is not a subterfuge to evade the purposes of this chapter. . . .

I reject the notion that this exception ameliorates the State’s problem to any significant extent. The reality is that, for Wyoming to benefit from this exception, it will have to enact new laws and develop new regulations to reduce its insurance coverage on older employees. Drafting and enacting these new laws is a burden Congress has no power to impose on the states. Second, it is doubtful that Wyoming could, as a practical matter, lower the health and disability insurance coverage on employees who fall under mandatory retirement laws. It is these employees who are, for the most part, in the most physically hazardous occupations, and thus most need protection. Stated another way, perhaps Crump would not want to keep his job if the State were unwilling to bear the economic risks of his injuries. Section 623(f)(2) is thus a shallow alternative to mandatory retirement.

Section 623(f)(1), the Commission’s answer to the problem of protecting the State’s ability to deliver its services effectively, provides no solution either. That section provides that mandatory early retirement is permissible "where age is a bona fide occupational qualification [BFOQ] reasonably necessary to the normal operation of the particular business. . . ." Although superficially, this section appears to offer the states a means for lessening the administrative burden of retiring unfit employees on a case-by-case basis, the exception does not work in practice. In the absence of statutory guidelines, the courts that have faced the question have -- in response to this appellant’s urgings -- established a high standard of what constitutes a bona fide occupational qualification. Typical seems to be the approach taken in Arritt v. Grisell, 567 F.2d 1267, 1271 (CA4 1977), requiring the employer to prove

(1) that the bfoq which it invokes is reasonably necessary to the essence of its business . . . and (2) that the employer has reasonable cause, i.e., a factual basis for believing that all or substantially all persons within the class . . . would be unable to perform safely and efficiently the duties of the job involved, or that it is impossible or impractical to deal with persons over the age limit on an individualized basis.

See also Usery v. Tamiami Trail Tours, Inc., 531 F.2d 224 (CA5 1976). Given the state of modern medicine, it is virtually impossible to prove that all persons within a class are unable to perform a particular job or that it is impossible to test employees on an individual basis, see, e.g., Johnson v. Mayor of Baltimore, 515 F.Supp. 1287, 1299 (Md.1981), cert. denied, 455 U.S. 944 (1982).

In the face of this track record, I find it impossible to say that § 623(f)(1) provides an adequate method for avoiding significant impairment to the state’s ability to structure its integral governmental operations.{5}

Since I am satisfied that the Age Act runs afoul of the three prongs of the National League of Cities test, I turn to the balancing test alluded to in JUSTICE BLACKMUN’s concurring opinion in National League of Cities, and in Hodel. The Commission argues that the federal interest in preventing unnecessary demands on the social security system and other maintenance programs, in protecting employees from arbitrary discrimination, and in eliminating unnecessary burdens on the free flow of commerce "is more than sufficient in the face of . . . Wyoming’s bald assertion of a prerogative to be arbitrary." Brief for Appellant 19.

It is simply not accurate to state that Wyoming is resting its challenge to the Age Act on a "sovereign" right to discriminate; as I read it, Wyoming is asserting a right to set standards to meet local needs. Nor do I believe that these largely theoretical benefits to the Federal Government outweigh the very real danger that a fire may burn out of control because the firefighters are not physically able to cope; or that a criminal may escape because a law enforcement officer’s reflexes are too slow to react swiftly enough to apprehend an offender; or that an officer may be injured or killed for want of capacity to defend himself. These factors may not be real to Congress, but it is not Congress’ responsibility to prevent them; they are nonetheless real to the states. I would hold that Commerce Clause powers are wholly insufficient to bar the states from dealing with or preventing these dangers in a rational manner. Wyoming’s solution is plainly a rational means.

II

Since it was ratified after the Tenth Amendment, the Fourteenth Amendment is not subject to the constraints discussed earlier in connection with the Commerce Clause. Indeed, it is well established that Congress may, under the powers bestowed by § 5, enact legislation affecting the states, Ex parte Virginia, 100 U.S. 339, 345 (1880); Fitzpatrick v. Bitzer, 427 U.S. 445 (1976). But this does not mean that Congress has been given a "blank check" to intrude into details of states’ governments at will. The Tenth Amendment was not, after all, repealed when the Fourteenth Amendment was ratified: it was merely limited. The question then becomes whether the Fourteenth Amendment operates to transfer from the states to the Federal Government the essentially local governmental function of deciding who will protect citizens from lawbreakers.

The outer reaches of congressional power under the Civil War Amendments have always been uncertain. One factor is, however, clear: Congress may act only where a violation lurks. The flaw in the Commission’s analysis is that, in this instance, no one -- not the Court, not the Congress{6} -- has determined that mandatory retirement plans violate any rights protected by these Amendments. We cannot say that the Judiciary made this determination, for we have considered the constitutionality of mandatory retirement schemes twice, in Massachusetts Board of Retirement v. Murgia, 427 U.S. 307 (1976), for state police, and Vance v. Bradley, 440 U.S. 93 (1979), for Foreign Service officers; we rejected both equal protection challenges. In both instances, we arrived at our conclusion by examining, arguendo, the retirement schemes under the rational basis standard. It was not necessary that we be convinced that equal protection guarantees extend to classes defined by age because governmental employment is not a fundamental right and those who are mandatorily retired are not a suspect class.

In Murgia, we found that early retirement of policemen was justified by the states’ objective of "protect[ing] the public by assuring physical preparedness of its uniformed police," 427 U.S. at 314; in Bradley, we held that early retirement of Foreign Service personnel was justified by Congress’ perception of a need to assure "opportunities for promotion would be available" and "the high quality of those occupying positions critical to the conduct of our foreign relations," and in order to "minimiz[e] the risk of less than superior performance by reason of poor health or loss of vitality," 440 U.S. at 101 and 103-104. Congress was simply using a rational means for solving a practical governmental problem within its constitutional jurisdiction.

Were we asked to review the constitutionality of the Wyoming State Highway Patrol and Game and Fish Warden Retirement Act, we would reach a result consistent with Bradley and Murgia. Like Congress dealing with military personnel, FBI agents, and Foreign Service officers, the State of Wyoming has an interest in the physical ability of its highway patrol and game and fish wardens. It is within Wyoming’s authority to motivate personnel to high performance by assuring opportunities for advancement; Wyoming reasonably considers safety conditions on its highways and game preserves critical to the wellbeing of its citizenry. In short, it cannot be said that, in applying the Age Act to the states, Congress has acted to enforce equal protection guarantees as they have been defined by this Court.

Nor can appellant claim that Congress has used the powers we recognized in City of Rome v. United States, 446 U.S. 156, 176-177 (1980); Oregon v. Mitchell, 400 U.S. 112 (1970); Jones v. Alfred H. Mayer Co., 392 U.S. 409, 437-444 (1968); South Carolina v. Katzenbach, 383 U.S. 301 (1966); and Katzenbach v. Morgan, 384 U.S. 641 (1966), to enact legislation that prohibits conduct not in itself unconstitutional because it considered the prohibition necessary to guard against encroachment of guaranteed rights or to rectify past discrimination. There has been no finding, as there was in South Carolina v. Katzenbach, supra, at 309, that the abrogated state law infringed on rights identified by this Court.{7} Nor did Congress use, as it did in Katzenbach v. Morgan, supra, at 656, its "specially informed legislative competence" to decide that the state law it invalidated was too intrusive on federal rights to be an appropriate means to achieve the ends sought by the state. Instead, the Age Act can be sustained only if we assume first, that Congress can define rights wholly independently of our case law, and second, that Congress has done so here. I agree with neither proposition. Allowing Congress to protect constitutional rights statutorily that it has independently defined fundamentally alters our scheme of government. Although the South Carolina v. Katzenbach line of cases may be read to allow Congress a degree of flexibility in deciding what the Fourteenth Amendment safeguards, I have always read Oregon v. Mitchell as finally imposing a limitation on the extent to which Congress may substitute its own judgment for that of the states and assume this Court’s "role of final arbiter," Mitchell, supra, at 205 (Harlan, J., concurring in part and dissenting in part). Mitchell, after all, involved legislation in the area of suffrage, where Congress had special competence and special reasons to limit the powers of the states. It is significant, however, that, while we there sustained the portions of the Voting Rights Act Amendments of 1970 lowering the minimum age of voters from 21 to 18 in federal elections, barring literacy tests in state and federal elections, and prohibiting states from disqualifying voters in Presidential elections for failure to meet state residency requirements, a majority of the Mitchell Court did not agree to allow Congress to alter voting requirements in state elections. We struck that portion of the Voting Rights Act because we thought it a "plain fact of history" that Congress lacked this power, see 400 U.S. at 125 and 294 (Black and Stewart, JJ.); id. at 154-215 (Harlan, J.); and because we thought that the Fourteenth Amendment was not a license to "overstep the letter or spirit of any constitutional restriction," id. at 287 (Stewart, J.).

For me, this same reasoning leads inevitably to the conclusion that Congress lacked power to apply the Age Act to the states. There is no hint in the body of the Constitution ratified in 1789 or in the relevant Amendments that every classification based on age is outlawed. Yet there is much in the Constitution and the relevant Amendments to indicate that states retain sovereign powers not expressly surrendered, and these surely include the power to choose the employees they feel are best able to serve and protect their citizens.{8}

And even were we to assume, arguendo, that Congress could redefine the Fourteenth Amendment, I would still reject the power of Congress to impose the Age Act on the states when Congress, in the same year that the Age Act was extended to the states, passed mandatory retirement legislation of its own, Pub.L. 93-350, 88 Stat. 356, codified at 5 U.S.C. § 8335, for law enforcement officers and firefighters. Over eight years have elapsed since the Age Act was extended to the states, yet early retirement is still required of federal air traffic controllers, 5 U.S.C. § 8335(a) (1976 ed., Supp. V), federal law enforcement officers, § 8335(b), federal firefighters, ibid., employees of the Panama Canal Commission and the Alaska Railroad, § 8335(c), members of the Foreign Service, 22 U.S.C. § 4052 (1976 ed., Supp. V), and members of the Armed Services, 10 U.S.C. § 1251 (1976 ed., Supp. V).

III

I believe I have demonstrated that neither the Constitution nor any of its Amendments have transferred from the states to the Federal Government the essentially local function of establishing standards for choosing state employees. The Framers did not give Congress the power to decide local employment standards, because they wisely realized that, as a body, Congress lacked the means to analyze the factors that bear on this decision, such as the diversity of occupational risks, climate, geography, and demography. Since local conditions generally determine how a job should be performed, and who should perform it, the authority and responsibility for making employment decisions must be in the hands of local governments, subject only to those restrictions unmistakably contemplated by the Fourteenth Amendment. Intrusion by Congress into this area can lead only to ill-informed decisionmaking.

And even if Congress had infinite factfinding means at its disposal, conditions in various parts of the country are too diverse to be susceptible to a uniformly applicable solution. Wyoming is a State with large sparsely populated areas, where law enforcement often requires substantial physical stamina; the same conditions are not always encountered by law enforcement officers in Rhode Island, which has far less land area, no mountains, and no wilderness. Problems confronting law enforcement officers in Alaska or Maine may be unlike those encountered in Hawaii and Florida. Barring states from making employment decisions tailored to meet specific local needs undermines the flexibility that has long allowed industrial states to live under the same flag as rural states, and small, densely populated states to coexist with large, sparsely populated ones.

The reserved powers of the states and Justice Brandeis’ classic conception of the states as laboratories, New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting), are turned on their heads when national, rather than state, governments assert the authority to make decisions on the age standard of state law enforcement officers. Flexibility for experimentation not only permits each state to find the best solutions to its own problems, it is the means by which each state may profit from the experiences and activities of all the rest. Nothing in the Constitution permits Congress to force the states into a Procrustean national mold that takes no account of local needs and conditions. That is the antithesis of what the authors of the Constitution contemplated for our federal system.

1. The Age Act was extended to the states along with the Fair Labor Standards Act. Pub.L. 93-259, § 28, 88 Stat. 74. Extension of the FLSA was declared unconstitutional in National League of Cities v. Usery, 426 U.S. 833 (1976).

2. See, e.g., Ala.Code § 36-27-16(a)(1)(e) (Supp.1982) (police; age 60); Ark.Stat.Ann. § 42-455 (1977) (police; 65); Cal.Gov’t Code Ann. § 20980 (West 1980) (highway patrol; 60); Del.Code Ann., Tit. 11, § 8323 (1979) (police; 55); Idaho Code § 50-1514(a) (Supp.1981) (police; 65); Ill.Rev.Stat., ch. 24, ¶ 10-2.1-17 (1979) (police and firemen; 65); Ind.Code § 36-8-3.5-20 (1981) (police and firemen; 65); Iowa Code § 97B.46(3) (Supp.1982-1983) (peace officers and firefighters; 65); Kan.Stat.Ann. § 74-4975(b) (1980) (patrolmen; 60); La.Rev.Stat.Ann. § 42-691 (West Supp.1983) (law enforcement personnel and firefighters; 65); Md.Ann.Code, Art. 88B, § 53(1)(c) (1979) (police; 60); Mass.Gen.Laws Ann., ch. 32, § 69(d) (West 1966) and § 83A(d) (Supp.1982-1983) (police; 65); Mich.Comp.Laws Ann. § 38.556(1)(c) (Supp.1982) (police and firemen; 65); Minn.Stat. § 423.075(1) (Supp.1983) (police and firemen; 65); Miss.Code Ann. § 25-13-11 (Supp.1982) (highway patrol; 55) and § 21-29-245 (Supp.1982) (police and firemen; 60); Mo.Ann.Stat. § 104.010 and § 104.080 (Vernon Supp.1983) (highway patrol; 60); Mont.Code Ann. § 19-6-504 (1981) (highway patrol; 60) and § 19-9-801 (1981) (police; 65); Neb.Rev.Stat. § 81-2025(2) (1981) (patrolmen; 60); N.Y.Retire. & Soc.Sec.Law § 381-b(e) (McKinney Supp.1982-1983) (police; 65); N.D.Cent.Code § 39-03.1-18 (1980) (highway patrol; 60); Ohio Rev.Code Ann. § 5505.16 (Supp.1982) (highway patrol; 55); Okla.Stat., Tit. 47, § 2-305A (Supp.1982-1983) (police; 60); Ore.Rev.Stat. § 237.129(1) (1981) (police and firemen; 60); Pa.Stat.Ann., Tit. 71, § 65(d) (Purdon Supp.1982-1983) (police; 60); R.I.Gen.Laws § 45-21.2-5 (1980) (police and firemen; 65); S.C.Code § 9-1-1535 (Supp.1982) (conservation officers; 65); Tenn.Code Ann. § 8-36-205(1) (1980) (police; 60 or 65); Tex.Rev.Civ.Stat.Ann., Art. 6423g-1, § 11(d) (Vernon Supp.1982-1983) (police; 65); Vt.Stat.Ann., Tit. 3, § 459(a)(2) (Supp.1982) (police; 55); Wash.Rev.Code § 43.43.250(1) (1981) (state patrol; 60); W.Va.Code § 8-22-25(d) (Supp.1982) (police and firemen; 65); Wis.Stat. § 41.02(23) (1979-1980) (police and firemen; 55); Wyo.Stat. § 15-5-307(a) (Supp.1982) (police; 60). See also App. to Brief for National Institute of Municipal Law Enforcement Officers as Amicus Curiae 1a-7a, citing 160 municipalities that have laws violating the Age Act.

3. This function was later transferred to the Equal Employment Opportunity Commission, see § 2 of the Reorg.Plan No. 1 of 1978, 3 CFR 321 (1979), 92 Stat. 3781, 5 U.S.C.App. 426 (1976 ed., Supp. V).

4. This problem is exacerbated by the special retirement schemes often used in connection with mandatory early retirement laws. In Wyoming, for example, state employees who are not subject to early retirement contribute less per month towards retirement than those in occupations where early retirement is required. So long as the early retirement laws are in effect, this system is actuarily sound, because the employees who will spend less years at work pay into the system more rapidly. Simple invalidation of the early retirement system would work an inequity by requiring these workers to contribute more towards retirement than other state employees. Brief for Appellees 12, n. 5. Of course, Wyoming could revamp its pension system to correct this problem. Forcing the State to do so is another example of the adverse impact wrought by the Age Act.

5. In addition, states that choose to invoke the BFOQ exception expose themselves to lawsuits requiring them to defend their choices. Defense of lawsuits is a costly and time-consuming endeavor that is, in itself, a burden impermissible for Congress to impose on the states.

6. The ability of Congress to define independently protected classes is an issue that need not be resolved here, because I think that the Age Act is unconstitutional even if it is assumed that Congress has this power.

7. At oral argument, the Solicitor General argued that, in applying the rational basis test in Murgia and Bradley, the Court sub silentio agreed that age discrimination is protected by the Equal Protection Clause, and that Congress has merely altered the burden needed to prove compliance with its guarantees. Tr. of Oral Arg. 17-18. I do not read these decisions to support this notion. Murgia and Bradley presented us with no occasion to determine the scope of the equal protection guarantee, because we found the legislation challenged there sustainable even if we assumed the class was protected.

This is not to say definitively that age discrimination is not protected by the Fourteenth Amendment, because this case does not squarely raise that issue. Rather, I am pointing out that, since this Court has not decided the question, the Government cannot support this enactment on the ground that Congress was attempting to establish further safeguards for a class we have found to be constitutionally protected.

8. It has been suggested that where a congressional resolution of a policy question hinges on legislative facts, the Court should defer to Congress’ judgment, because Congress is in a better position than the Court to find the relevant facts. Cox, The Role of Congress in Constitutional Determinations, 40 U.Cin.L.Rev. 187, 229-230 (1971). While this theory may have some importance in matters of strictly federal concern, it has no place in deciding between the legislative judgments of Congress and that of the Wyoming Legislature. Congress is simply not as well equipped as state legislators to make decisions involving purely local needs.