Also known as: traditional government functions · traditional governmental function · traditional governmental functions · governmental function · governmental functions
Written by attorneys — see sources below.
An activity historically and customarily performed by government entities rather than private parties. Such functions include waste disposal, public transit, and education. Courts apply the label to determine whether state favoritism toward public providers receives lenient Dormant Commerce Clause review or whether federal regulation of state employers is permissible.
Tyler Taylor operates a private recycling plant in a neighboring state. The county enacts an ordinance requiring all local construction debris to be delivered only to a municipally owned recovery center. Taylor sues, claiming discrimination against interstate commerce. The ordinance survives because it channels waste to a public facility performing a traditional government function rather than to private operators.
Tracy Torres drives buses for MetroLink, a regional transit district created by several counties. A federal labor office orders MetroLink to comply with expanded wage and hour protections that also apply to private carriers. Torres's employer sues, arguing that public transit is a traditional governmental function exempt from federal rules. The court upholds the federal requirements because the traditional governmental functions test is unworkable and Congress may regulate states and private entities alike under the Commerce Clause.
Tessa Takahashi is charged in state court with gender-motivated violence. Congress has enacted a federal civil remedy for the same conduct. Takahashi moves to dismiss the federal claim, arguing that domestic violence is a traditional government function reserved to the states. The court grants the motion in part because the traditional state concern limits Congress's enumerated powers when the activity does not substantially affect interstate commerce.
In September 1994 Christy Brzonkala enrolled as a student at Virginia Polytechnic Institute and State University. Within thirty minutes of meeting fellow students Antonio Morrison and James Crawford, both members of the varsity football team, Brzonkala alleges that the two men assaulted and repeatedly raped her. Morrison allegedly told Brzonkala after the attack that she had better not have any diseases. He later announced in a dormitory dining room that he liked to get girls drunk and made other vulgar remarks about women. Brzonkala became severely emotionally disturbed and depressed after the incident. She sought assistance from a university psychiatrist who prescribed antidepressant medication. She stopped attending classes and withdrew from the university. In early 1995 she filed a complaint against Morrison and Crawford under the university's Sexual Assault Policy. Virginia Tech conducted a hearing under its Sexual Assault Policy and a second hearing under its Abusive Conduct Policy. The first found Morrison guilty of sexual assault and suspended him for two semesters. The second hearing again found him guilty but changed the offense description to using abusive language. University officials later set aside the punishment. In December 1995 Brzonkala sued Morrison, Crawford, and Virginia Tech in the United States District Court for the Western District of Virginia. Her complaint alleged that the attack violated 42 U.S.C. §13981, the civil remedy provision of the Violence Against Women Act of 1994, which creates a federal cause of action for compensatory and punitive damages against persons who commit crimes of violence motivated by gender. She also asserted Title IX claims against the university. The district court dismissed the Title IX claims for failure to state a claim. It also dismissed the §13981 claim on the ground that Congress lacked authority to enact the provision under either the Commerce Clause or Section 5 of the Fourteenth Amendment. A divided panel of the Fourth Circuit reversed in part, but the en banc Fourth Circuit affirmed the district court's conclusion that Congress lacked constitutional authority to enact §13981. The Supreme Court granted certiorari to determine the constitutionality of the civil remedy provision.
View caseTravis Tate sues a city under section 1983 after police officers following an official training policy injure him. The city moves to dismiss, claiming it is not a person under the statute. The court holds that municipalities performing traditional government functions such as law enforcement may be sued when an official policy causes the violation.
In July 1971 petitioners, a class of female employees of the Department of Social Services and of the Board of Education of the City of New York, commenced this action under 42 U.S.C. § 1983 in the United States District Court for the Southern District of New York. They sued the Department and its Commissioner, the Board and its Chancellor, and the city of New York and its Mayor, all in their official capacities. The complaint alleged that the city and its agencies had as a matter of official policy compelled pregnant employees to take unpaid leaves of absence before such leaves were required for medical reasons. The suit sought injunctive relief and backpay for periods of unlawful forced leave. On cross-motions for summary judgment, the District Court held petitioners' claims for injunctive and declaratory relief moot because the city and the Board had changed their maternity-leave policies after the complaint was filed. The court found that the acts complained of were unconstitutional under the Fourteenth Amendment. It denied backpay on the ground that any damages would come ultimately from the city of New York and that holding otherwise would circumvent the immunity conferred on municipalities by Monroe v. Pape. On appeal, petitioners renewed their arguments that the Board of Education was not a municipality within the meaning of Monroe v. Pape and that the District Court had erred in barring a damages award against the individual defendants. The Court of Appeals for the Second Circuit held that the Board was not a “person” under § 1983 because it performed a vital governmental function and had no final say over its appropriations. It also held that a damages action against officials sued in their official capacities could not proceed because any award would have to be paid by a city held not amenable to suit in Monroe v. Pape. The Supreme Court granted certiorari to consider whether local governmental officials and local independent school boards are “persons” within the meaning of 42 U.S.C. § 1983 when equitable relief in the nature of back pay is sought against them in their official capacities. After oral argument, the Court requested the parties to address whether Monroe v. Pape should be reconsidered in light of the legislative history of the Civil Rights Act of 1871.
View caseTheodore Tucker is prosecuted under a federal statute for possessing a firearm within one thousand feet of a school. He argues that education and school safety are traditional government functions reserved to the states. The court invalidates the statute because regulating local crime near schools exceeds Congress's commerce power even though the activity occurs in an area of traditional state concern.
In March 1992, Alfonso Lopez, Jr., a twelfth-grade student at Edison High School in San Antonio, Texas, arrived at school carrying a concealed .38-caliber handgun and five bullets. Acting on an anonymous tip, school authorities confronted Lopez, who admitted possessing the weapon. Local police arrested him and charged him under Texas law with firearm possession on school premises. The following day, state charges were dismissed after federal agents charged Lopez with violating the Gun-Free School Zones Act of 1990. A federal grand jury indicted him on one count of knowing possession of a firearm at a school zone. Lopez moved to dismiss the indictment, arguing that the statute exceeded Congress's power to legislate control over public schools. The district court denied the motion, concluding that the statute was a constitutional exercise of Congress's power to regulate activities affecting commerce because the business of schools affects interstate commerce. After a bench trial, the court found Lopez guilty and sentenced him to six months' imprisonment and two years of supervised release. Lopez appealed to the Court of Appeals for the Fifth Circuit, which reversed the conviction, holding that the statute was beyond Congress's power under the Commerce Clause. The Supreme Court granted certiorari to review the case.
View caseTanya Tang owns oceanfront land whose value is reduced by a state judicial decision redefining property boundaries after beach renourishment. She claims a judicial taking. The court analyzes whether the decision alters traditional government functions such as managing public trust lands and concludes that the state action does not constitute a taking.
In Florida, the State owns in trust for the public the land permanently submerged beneath navigable waters and the foreshore, making the mean high-water line the ordinary boundary between private beachfront property and state-owned land. Littoral owners hold special rights with regard to the water and foreshore, including the right to receive accretions and relictions to their property. In 1961, Florida’s Legislature passed the Beach and Shore Preservation Act, which sets procedures for beach restoration and nourishment projects to deposit sand on eroded beaches. A local government may apply to the Department of Environmental Protection for funds and permits, and when placing fill on the State’s submerged lands, authorization from the Board of Trustees of the Internal Improvement Trust Fund is required. Once a beach restoration is determined to be undertaken, the Board sets an erosion control line that replaces the fluctuating mean high-water line as the boundary between privately owned littoral property and state property, after which the common law ceases to increase upland property by accretion. In 2003, the city of Destin and Walton County applied for permits to restore 6.9 miles of beach within their jurisdictions that had been eroded by several hurricanes. The project would add about 75 feet of dry sand seaward of the mean high-water line. The Department issued a notice of intent to award the permits, and the Board approved the erosion-control line. Stop the Beach Renourishment, Inc., a nonprofit corporation formed by people who own beachfront property bordering the project area, brought an administrative challenge to the proposed project. After the challenge proved unsuccessful and the Department approved the permits, the corporation challenged the action in state court under the Florida Administrative Procedure Act. The District Court of Appeal for the First District set aside the Department’s final order and certified a question to the Florida Supreme Court. The Florida Supreme Court answered the certified question in the negative and quashed the First District’s remand. Petitioner sought rehearing on the ground that the Florida Supreme Court’s decision itself effected a taking of the Members’ littoral rights contrary to the Fifth and Fourteenth Amendments, but the request for rehearing was denied. The United States Supreme Court granted certiorari to review the case.
View caseWaste disposal and public transit are classic examples. When a state favors a publicly owned facility performing these functions, the measure receives lenient review because the favoritism is presumed to serve legitimate public objectives rather than economic protectionism.
Supporting sources
No. The Supreme Court rejected the test as unworkable in Garcia. States must rely on the political process rather than judicially defined exemptions when Congress regulates states and private entities on the same terms.
Supporting sources
…directing the State to enact a certain policy, cf. New York v. United States , 505 U. S. 144 (1992), or to organize its governmental functions in a certain way, cf. FERC v. Mississippi , 456 U. S., at 781 (O'Connor, J., concurring in judgment in part and dissenting in part). While the intrusion on state sovereignty may not be as…