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May 5, 2006
Judge Napolitano and the "Case" of the Window Washers
The story sounded to me like an urban legend rather than a real case. I emailed Judge Napolitano (at two different email addresses) for information about the case. He has not yet responded.
Here, for the record, is what Judge Napolitano said on the radio. (You can listen to the clip by clicking here.)
Judge Napolitano: Here's the most ridiculous one. Congress regulated the minimum wage for window washers. And the argument by the employers before the federal appeals court was, "Well by definition we stay in one state. We go up and down buildings." And the federal government said, "Well, yeah, but you're in New York. And if you're at the top of the Empire State Building, and you look west, you can see New Jersey. Therefore, the window washers are involved in interstate commerce."I've searched for this case using Westlaw, Lexis, Google, and even the New York Times historical newspaper database (which has the full text of everything in the NYTimes since 1851), and I have found nothing that even faintly resembles this case. (Nor have I found "hundreds and hundreds of examples" of similar cases.)Brad (one of the show's hosts): Oh, stop it!
Judge Napolitano: And the court went along with that!
Britt (the show's other host): Oh my God! (laughing)
Brad: I can't take it anymore.
Judge Napolitano: This shows you the ridiculous extremes to which Congress has gone to justify power never given to it under the Constitution, and even worse, the ridiculous extremes to which life-tenured judges who don't run for reelection, and shouldn't care what the people think, have gone to go along with this. This is what my book is all about, and there are hundreds and hundreds of examples of this.
Let me be very clear here: the scope of Congress's powers under the Commerce Clause undoubtedly exceeds what the Framers might have been able to envision. And there are real cases that illustrate this point.
So there's no need to make up cases. Especially not cases that, at least as presented, ring false.
(Sure, if I took some time, I could probably come up with a rationale for the result in the window-washer case -- a rationale that is based in the ability of a person to see New Jersey from the top of the Empire State Building -- that might pass the giggle test. Let me try: The Empire State Building attracts tourists from all over the country and the world by bragging about the view through the windows of the observation deck; if the windows are dirty, the view is impaired; if the view is impaired, and you can't see New Jersey, fewer visitors will travel to New York in interstate commerce and fewer visitors will pay to go to observation deck; if window washers are paid a substandard wage, they won't work as hard or won't be as skilled; if the wage is too low the windows will be dirtier and the view of New Jersey will be impaired -- and therefore -- the wages paid to window washers at the Empire State Building have a substantial effect on interstate commerce.
Would such an argument prevail in court these days? I tend to think not. And more to the point, I tend to think that the government would never even make such an attenuated argument to support a minimum-wage law for window washers, as there are lots of much better arguments to support such a law that don't depend on seeing into New Jersey from the top of the Empire State Building.)
Posted by Eric at May 5, 2006 9:22 AM
Comments
Your argument would never hold up. Anyone smart enough to be on the Supreme Court would understand that the market value of a trip to the top of the Empire State Building would increase if you couldn't see the parts of NJ visible from NYC.
[ELM: Ah, but Congress has the power to burden interstate commerce if it wishes, not merely to facilitate it. Where did you learn your Con Law, anyway?]
Posted by: Lance at May 5, 2006 11:54 AM
Was there really ever a law that purported to regulate the wages of window-washers only? I find that part especially hard to believe.
[ELM: Mark, what I'm assuming, giving Judge Napolitano the benefit of the doubt, is that the actual court challenge (if there was one at all) was an as-applied challenge: window washers claimed that a more broadly applicable minimum wage was unconstitutional as applied to them, because they were not working in interstate commerce but just scaling up and down buildings entirely within a state.]
Posted by: Mark Chilton at May 5, 2006 12:03 PM
I sent an e-mail to the Judge (via the Fox website)as well. Incredibly, I have received no reply.
Probably he is very busy on tour....
Posted by: MMF at May 5, 2006 12:13 PM
In a couple of minutes on Westlaw (the ALLCASES database), I did manage to find Michigan Window Cleaning Co. v. Martino, 173 F.2d 466 (6th Cir. 1949). Which dealt with window washers, minimum wage and interstate commerce. Martino had a US Supreme Court history, see 327 U.S. 173 (1946).
However, Martino is about Detroit window washers during the early 1940's. I believe the court does hold that window washers are engaged in interstate commerce but not for the reasons stated by Judge N.
Posted by: pat at May 5, 2006 12:56 PM
How about this: something along the lines of no minimum wage for any NY window washers means that NJ-based window washers who want to work in NYC have to change their rates accordingly, so there's an effect on interstate commerce from it, giving Congress the power to regulate.
Posted by: CL at May 5, 2006 1:02 PM
Here's another thing that's confusing me: isn't it the employer's involvment in interstate commerce that's relevant, rather than the employees? What the intercourse is he thinking?
Posted by: Simon Spero at May 5, 2006 2:23 PM
Pat, I'm a fair hand at googling and Martino was the only case with ICC ramifications I could find. There was a recent case in NY where the state courts had to tease out the relevant State statute to apply to window washer injuries (award of $2.8M).
Posted by: WillR at May 5, 2006 10:57 PM
Professor Muller, you may be interested in these eviscerations of Napolitano's "arguments" by some of the gang over at National Review. That Napolitano's ignorance can so easily be exposed by scholars of different political persuasions is quite telling.
http://www.nationalreview.com/mccarthy/mccarthy200502230740.asp
http://www.nationalreview.com/ponnuru/ponnuru200403090920.asp
Posted by: anonymouslawyer at May 6, 2006 1:44 AM
I wish that you could make it easier to link to this posting. O well.
I couldn't find the case, neither could a friend of mine. I'm stunned a former state judge would make this kind of error on a subject he has written about. This sort of thing just coursens the national dialogue.
Posted by: Hanging Shingle at May 6, 2006 8:46 AM
For those not familiar with NYC geography, the Hudson river separates NY from NJ. Although the river is relatively wide, there is no difficulty in seeing NJ from the NY side unless there is fog, or the view is occluded.
Posted by: m at May 6, 2006 2:06 PM
And for those unfamiliar with the observation deck of the Empire State Building -- it is outdoors. No windows to be washed....
Posted by: rational actor at May 16, 2006 2:59 PM