gregory ashcroft argued march decided june article missouri constitution provides mandatory retirement age state judges petitioners judges subject appointed governor subsequently retained office means retention elections ran unopposed subject yes vote along state judges filed suit respondent governor alleging violated federal age discrimination employment act adea equal protection clause fourteenth amendment district granted governor motion dismiss ruling adea violation missouri appointed judges covered employees within act terms equal protection violation rational basis distinction judges state officials mandatory retirement age applies appeals affirmed held missouri mandatory retirement requirement judges violate adea pp authority state people determine qualifications important government officials lies heart representative government reserved tenth amendment guaranteed guarantee clause article iv see sugarman dougall congressional interference missouri people decision establish qualification judges upset usual constitutional balance federal state powers congress must make intention unmistakably clear language statute see michigan dept state police moreover congress acts pursuant commerce clause power extending adea see eeoc wyoming authority state people determine government officials qualifications may inviolate application plain statement rule determine whether congress intended adea apply state judges may help avoid potential constitutional problem pp appointed state judges covered adea extended act substantive provisions include employers congress redefined employee exclude elected state officials including appointee policymaking level least ambiguous whether state judge appointee regardless whether judge might considered make policy sense executive officials legislators judge certainly position requiring exercise discretion concerning issues public importance therefore might said policymaking level thus concluded adea makes unmistakably clear supra appointed state judges covered pp even congress acted pursuant enforcement powers fourteenth amendment addition commerce clause powers extended adea state employment ambiguity act employee definition precludes attributing congress intent cover appointed state judges although eeoc wyoming supra noted federalism principles constraining congress exercise commerce clause powers attenuated acts pursuant powers political function cases demonstrate fourteenth amendment override principles see sugarman supra particular relevance pennhurst state school hospital halderman established attribute congress unstated intent intrude traditional state authority exercise powers rule looks much like plain statement rule applied supra pertains face statutory ambiguity pp missouri mandatory retirement provision violate equal protection clause pp petitioners correctly assert challenge rational basis level since age suspect classification equal protection clause since claim fundamental interest serving judges see vance bradley circumstances overturn state constitutional provision unless varying treatment different groups unrelated achievement combination legitimate purposes concluded people actions approving irrational ibid missouri people rationally conclude threat deterioration age sufficiently great alternatives removal office sufficiently inadequate require judges step aside age unfortunate fact life physical mental capacity sometimes diminish age people may wish replace older judges order satisfy legitimate indeed compelling public interest maintaining judiciary fully capable performing judges demanding tasks although judges probably suffer significant deterioration age people reasonably conceive basis classification true see bradley supra voluntary retirement always sufficient serve acceptably goal fully functioning judiciary may impeachment public humiliation elaborate procedural machinery election process may also inadequate since voters never observe judges action read opinions since state judges serve longer terms officials making deliberately less dependent people since infrequent retention elections may serve adequate check judges whose performance deficient state officials subject mandatory retirement rationally explained facts performance subject greater public scrutiny subject standard elections deterioration performance readily discernible easily removed judges pp delivered opinion rehnquist scalia kennedy souter joined parts iii white stevens joined white filed opinion concurring part dissenting part concurring judgment stevens joined post blackmun filed dissenting opinion marshall joined post jim shoemake argued cause petitioners briefs thomas guilfoil bruce dayton livingston james deutsch deputy attorney general missouri argued cause respondent brief william webster attorney general michael boicourt assistant attorney general cathy filed brief american association retired persons amicus curiae urging reversal briefs amici curiae urging affirmance state colorado et al scott harshbarger attorney general massachusetts reed witherby special assistant attorney general thomas barnico assistant attorney general attorneys general respective jurisdiction follows gale norton colorado robert butterworth florida warren price iii hawaii hubert humphrey iii minnesota donald stenberg nebraska robert del tufo new jersey nicholas spaeth north dakota ernest preate pennsylvania hector puerto rico james rhode island travis medlock south carolina joseph meyer wyoming state connecticut richard blumenthal attorney general arnold feigin daniel schaefer assistant attorneys general state vermont office administrator william gray missouri bar karen iverson timothy mcnamara national governors association et al richard ruba michael wahoske mark rotenberg washington legal foundation john cozad dennis cross christopher abele daniel popeo john scully daniel spraul filed brief judge john keefe amicus curiae justice delivered opinion article missouri constitution provides judges municipal judges shall retire age seventy years consider whether mandatory retirement provision violates federal age discrimination employment act adea stat amended whether comports federal constitutional prescription equal protection laws petitioners missouri state judges judge ellis gregory associate circuit judge judicial circuit judge anthony nugent judge missouri appeals western district subject mandatory retirement provision petitioners appointed office governor missouri pursuant missouri plan mo art since appointment retained office means retention election judge ran unopposed subject yes vote see mo art petitioners two state judges filed suit john ashcroft governor missouri district eastern district missouri challenging validity mandatory retirement provision judges alleged provision violated adea equal protection clause fourteenth amendment constitution governor filed motion dismiss district granted motion holding missouri appointed judges protected adea appointees policymaking level therefore excluded act definition employee app pet cert held also mandatory retirement provision violate equal protection clause rational basis distinction judges state officials mandatory retirement age applies appeals eighth circuit affirmed dismissal also held appointed judges appointee policymaking level therefore covered adea appeals held well missouri rational basis distinguishing judges reached age granted certiorari adea equal protection questions affirm ii adea makes unlawful employer discharge individual least years old individual age term employer defined include state political subdivision state petitioners work state missouri contend missouri mandatory retirement requirement judges violates adea every schoolchild learns constitution establishes system dual sovereignty federal government also recognized fundamental principle tafflin levitt beg axiom federal system possess sovereignty concurrent federal government subject limitations imposed supremacy clause years ago described constitutional scheme dual sovereigns people state compose state government endowed functions essential separate independent existence ithout union political body therefore loss separate independent autonomy union constitution may unreasonably said preservation maintenance governments much within design care constitution preservation union maintenance national government constitution provisions looks indestructible union composed indestructible texas white wall quoting lane county oregon wall powers delegated proposed constitution federal government defined remain state governments numerous indefinite powers reserved several extend objects ordinary course affairs concern lives liberties properties people internal order improvement prosperity state federalist pp rossiter ed madison perhaps principal benefit federalist system check abuses government power constitutionally mandated balance power federal government adopted framers ensure protection fundamental liberties atascadero state hospital scanlon quoting garcia san antonio metropolitan transit authority powell dissenting separation independence coordinate branches federal government serve prevent accumulation excessive power one branch healthy balance power federal government reduce risk tyranny abuse either front alexander hamilton explained people new york perhaps optimistically new federalist system suppress completely attempts government establish tyranny confederacy people without exaggeration may said entirely masters fate power almost always rival power general government times stand ready check usurpations state governments disposition towards general government people throwing either scale infallibly make preponderate rights invaded either make use instrument redress federalist pp rossiter ed single republic power surrendered people submitted administration single government usurpations guarded division government distinct separate departments compound republic america power surrendered people first divided two distinct governments portion allotted subdivided among distinct separate departments hence double security arises rights people different governments control time controlled federal government holds decided advantage delicate balance supremacy clause art vi long acting within powers granted constitution congress may impose congress may legislate areas traditionally regulated extraordinary power federalist system power must assume congress exercise lightly present case concerns state constitutional provision people missouri establish qualification sit judges provision goes beyond area traditionally regulated decision fundamental sort sovereign entity structure government character exercise government authority state defines sovereign obviously essential independence peace tranquility power prescribe qualifications officers exclusive free external interference except far plainly provided constitution taylor beckham see also boyd thayer state power prescribe qualifications officers manner shall chosen congressional interference decision people missouri defining constitutional officers upset usual constitutional balance federal state powers reason incumbent upon federal courts certain congress intent finding federal law overrides balance atascadero supra explained recently congress intends alter usual constitutional balance federal government must make intention unmistakably clear language statute atascadero state hospital scanlon see also pennhurst state school hospital halderman atascadero eleventh amendment case similar approach applied contexts congress make intention clear manifest intends preempt historic powers rice santa fe elevator traditionally sensitive areas legislation affecting federal balance requirement clear statement assures legislature fact faced intended bring issue critical matters involved judicial decision bass michigan dept state police recent line authority acknowledged unique nature state decisions go heart representative government sugarman dougall sugarman first series cases consider restrictions imposed equal protection clause fourteenth amendment ability state local governments prohibit aliens public employment case struck equal protection clause new york city law provided flat ban employment aliens wide variety city jobs ibid hold however alienage never justify exclusion public employment recognized explicitly constitutional power establish qualifications govern framers constitution intended keep provided tenth amendment power regulate elections oregon mitchell omitted opinion black see opinion harlan opinion stewart ach state power prescribe qualifications officers manner shall chosen boyd thayer see luther borden pope williams power inheres state virtue obligation already noted preserve basic conception political community dunn blumstein power responsibility state applies qualifications voters also persons holding state elective important nonelective executive legislative judicial positions officers participate directly formulation execution review broad public policy perform functions go heart representative government ibid several subsequent cases applied political function exception laws exclude aliens positions intimately related process democratic see bernal fainter see also nyquist mauclet foley connelie ambach norwick cabell lowered standard review evaluating validity exclusions entrust citizens important elective nonelective positions whose operations go heart representative government bernal citations omitted cases stand recognition authority people determine qualifications important government officials authority lies heart representative government ibid power reserved tenth amendment guaranteed provision constitution guarantee every state union republican form government art iv see sugarman supra citing guarantee clause tenth amendment see also merritt colum authority people determine qualifications government officials course without limit constitutional provisions notably fourteenth amendment proscribe certain qualifications review citizenship requirements political function exception less exacting absent must decide congress extending adea pursuant powers commerce clause see eeoc wyoming extension adea employment state local governments valid exercise congress powers commerce clause congress powers regulate commerce among several art cl authority people determine qualifications government officials may inviolate constrained ability consider limits balance places congress powers commerce clause see garcia san antonio metropolitan transit authority declining review limitations placed congress commerce clause powers federal system need hold adea apply state judges application plain statement rule thus may avoid potential constitutional problem indeed inasmuch garcia left primarily political process protection intrusive exercises congress commerce clause powers must absolutely certain congress intended exercise give weight federal law mere congressional ambiguity evade procedure lawmaking garcia relied protect interests tribe american constitutional law ed congress extended substantive provisions adea include employers stat time congress amended definition employee exclude elected government officials act amended term employee means individual employed employer except term employee shall include person elected public office state political subdivision state qualified voters thereof person chosen officer officer personal staff appointee policymaking level immediate adviser respect exercise constitutional legal powers office petitioners counter judges merely resolve factual disputes decide questions law make policy moreover petitioners point exception part trilogy tied closely elected official exception thus act excepts elected officials person chosen officer officer personal staff appointee policymaking level immediate advisor respect constitutional legal powers office applying maxim statutory construction noscitur sociis word known company keeps petitioners argue since refer close working relationships elected officials must even said judges may make policy petitioners contend behest elected official governor ashcroft relies plain language statute exempts persons appointed policymaking level governor argues state judges fashioning applying common law make policy missouri common law state see mo rev stat adopting common law england consistent federal state law common law unlike constitution statute provides definitive text derived interstices prior opinions judgment best community justice holmes put considerations judges rarely mention always apology secret root law draws juices life mean course considerations expedient community concerned every important principle developed litigation fact bottom result less definitely understood views public policy generally sure practice traditions unconscious result instinctive preferences inarticulate convictions nonetheless traceable views public policy last analysis holmes common law governor stresses judges policymaking responsibilities far plain statutory exception requires judges actually make policy statute refers appointees policymaking level appointees make policy may sufficient appointee position requiring exercise discretion concerning issues public importance certainly describes bench regardless whether judges might considered policymakers sense executive legislature nonetheless appointee policymaking level particularly context exceptions surround odd way congress exclude judges plain statement judges employees seem efficient phrasing case looking plain statement judges excluded read adea cover state judges unless congress made clear judges included mean act must mention judges explicitly though cf dellmuth muth scalia concurring rather must plain anyone reading act covers judges context statute plainly excludes important state public officials appointee policymaking level sufficiently broad conclude statute plainly covers appointed state judges therefore adea plainly covers state employees except excluded one exceptions unambiguous employee fall within one exceptions act plainly unequivocally employee included least ambiguous whether state judge appointee policymaking level governor ashcroft points also person elected public office exception contends petitioners although appointed office initially subject retention election elected public office adea conclude petitioners fall presumptively exception need answer question extension adea employment state local governments valid exercise congress powers commerce clause eeoc wyoming wyoming reserved questions whether congress might also passed adea extension pursuant powers fourteenth amendment whether extension valid exercise power noted however principles federalism constrain congress exercise commerce clause powers attenuated congress acts pursuant powers enforce civil war amendments citing city rome amendments specifically designed expansion federal power intrusion state sovereignty one might argue therefore congress passed adea extension powers concerns federal intrusion state government compel result case might carry less weight terms fourteenth amendment contemplates interference state authority state shall deny person within jurisdiction equal protection laws amdt never held amendment may applied complete disregard state constitutional powers rather recognized power define qualifications officeholders force even proscriptions fourteenth amendment return political function cases sugarman noted aliens class prime example discrete insular minority see carolene products classifications based alienage subject close judicial scrutiny quoting graham richardson sugarman held new york city insufficient interest preventing aliens holding broad category public jobs justify blanket prohibition time established rule scrutiny equal protection clause demanding deal matters resting firmly within state constitutional prerogatives later cases reaffirmed practice see foley connelie ambach norwick cabell cases demonstrate fourteenth amendment override principles federalism particular relevance pennhurst state school hospital halderman question case whether congress passing section developmentally disabled assistance bill rights act ed intended place obligation provide certain kinds treatment disabled respondent halderman argued congress passed pursuant fourteenth amendment therefore mandatory regardless whether received federal funds petitioner respondent argued passing congress acted pursuant spending power alone consequently applied accepting federal funds act required consider appropriate test determining congress intends enforce guarantees fourteenth amendment adopted rule fully cognizant traditional power legislation imposes congressional policy state involuntarily often intrudes traditional state authority quickly attribute congress unstated intent act authority enforce fourteenth amendment ibid congress nowhere stated intent impose mandatory obligations powers concluded congress ibid pennhurst rule looks much like plain statement rule apply today eeoc wyoming explained pennhurst established rule statutory construction applied statutory intent ambiguous light adea clear exclusion important public officials least ambiguous whether congress intended appointed judges nonetheless included face ambiguity attribute congress intent intrude state governmental functions regardless whether congress acted pursuant commerce clause powers fourteenth amendment iii petitioners argue even covered adea missouri constitution mandatory retirement provision judges violates equal protection clause fourteenth amendment constitution petitioners contend rational basis decision people missouri preclude age serving judges claim mandatory retirement provision makes two irrational distinctions judges reached age younger judges judges state employees age subject mandatory retirement petitioners correct assert challenge level rational basis said repeatedly age suspect classification equal protection clause see massachusetts bd retirement murgia vance bradley cleburne cleburne living center petitioners claim fundamental interest serving judges state need therefore assert rational basis age classification see murgia supra bradley cases classification burdens neither suspect group fundamental interest courts quite reluctant overturn governmental action ground denies equal protection laws ibid case dealing merely government action state constitutional provision approved people missouri whole constitutional provision reflects considered judgment state legislature proposed citizens missouri voted see proposing mandatory retirement provision mo art xii describing amendment process overturn law unless varying treatment different groups persons unrelated achievement combination legitimate purposes conclude people actions irrational bradley supra see also pennell san jose governor ashcroft cites baine mo en banc fruitful source rational bases missouri missouri constitution article applies considered equal protection challenge state statute established mandatory retirement age state magistrate probate judges upheld statute declaring numerous legitimate state objectives served statute draws line certain age attempts uphold high competency judicial posts fulfills societal demand highest caliber judges system statute draws legitimate line avoid tedious often perplexing decisions determine judges certain age physically mentally qualified mandatory retirement increases opportunity qualified persons share judiciary permits orderly attrition retirement mandatory provision also assures predictability ease establishing administering judges pension plans one explanations sufficient rebut claim varying treatment different groups persons unrelated achievement combination legitimate purposes conclude people actions irrational bradley supra people missouri legitimate indeed compelling interest maintaining judiciary fully capable performing demanding tasks judges must perform unfortunate fact life physical mental capacity sometimes diminish age see bradley supra murgia supra people may therefore wish replace older judges voluntary retirement always sufficient may impeachment public humiliation elaborate procedural machinery serve acceptably goal fully functioning judiciary see mo art vii election process may also inadequate whereas electorate expected discover governor state legislator performing adequately vote official office may true judges voters never observe state judges action read judicial opinions state judges also serve longer terms office public officials making deliberately less dependent people compare mo art justices appeals judges serve terms circuit judges six years mo art iv governor lieutenant governor secretary state state treasurer attorney general serve terms mo art iii state representatives serve terms state senators four years judges run ordinary elections see mo art people missouri rationally conclude retention elections state judges run unopposed relatively long intervals serve adequate check judges whose performance deficient mandatory retirement reasonable response dilemma also rational explanation fact state judges subject mandatory retirement provision state officials whose performance subject greater public scrutiny subject standard elections judges general lack accountability explains also distinction judges state employees deterioration performance readily discernible easily removed missouri mandatory retirement provision like legal classifications founded generalization far true judges suffer significant deterioration performance age probably true may true state violate equal protection clause merely classifications made laws imperfect murgia quoting dandridge williams equal protection case type challenging judgment people must convince facts classification apparently based reasonably conceived true decisionmaker bradley people missouri rationally conclude threat deterioration age sufficiently great alternatives removal sufficiently inadequate require judges step aside age classification violate equal protection clause iv people missouri established qualification judges prerogative citizens sovereign state neither adea equal protection clause prohibits choice made accordingly judgment appeals affirmed justice white believes political function cases inapposite involve limitations judicially created scrutiny rather congress legislative authority issue post apparently suggests congress greater authority interfere state sovereignty acting pursuant commerce clause powers applying fourteenth amendment elsewhere opinion justice white emphasizes fourteenth amendment designed intrusion state sovereignty see post case diminished scrutiny state laws political function cases brought fourteenth amendment argues strongly special care interpreting alleged congressional intrusions state sovereignty commerce clause justice white justice stevens joins concurring part dissenting part concurring judgment agree majority neither adea equal protection clause prohibits missouri mandatory retirement provision applied petitioners therefore concur judgment parts iii majority opinion agree however majority reasoning part ii opinion ignores several areas precedent announces rule likely prove unwise infeasible majority analysis part ii completely unnecessary proper resolution case makes remarkable addition petitioners equal protection claim granted certiorari decide following question whether appointed missouri state judges appointee policymaking level within meaning age discrimination employment act adea supp therefore exempted adea general prohibition mandatory retirement thus subject mandatory retirement provision article section missouri constitution pet cert among things adea makes unlawful employer fail refuse hire discharge individual otherwise discriminate individual respect compensation terms conditions privileges employment individual age congress amended definition employer adea include state political subdivision state amendment doubt intent congress extend application adea eeoc wyoming dispute case therefore whether congress outlawed age discrimination clearly question whether petitioners fall within definition employee act contains exceptions elected officials certain appointed officials petitioners employee missouri mandatory retirement provision clearly conflicts antidiscrimination provisions adea indeed noted policies substantive provisions adea apply especial force case mandatory retirement provisions western air lines criswell preemption therefore automatic since state law preempted extent actually conflicts federal law pacific gas electric state energy resources conservation development majority federalism concerns irrelevant actual conflict relative importance state law material conflict valid federal law framers constitution provided federal law must prevail fidelity federal savings loan assn de la cuesta quoting free bland acknowledging principle federal legislative supremacy see ante majority nevertheless imposes upon congress plain statement requirement majority claims derive requirement plain statement approach developed eleventh amendment cases see atascadero state hospital scanlon applied two terms ago michigan dept state police issue cases however whether congress intended particular statute extend atascadero example issue whether sued rehabilitation act similarly issue whether sued present case contrast congress expressly extended coverage adea employees intention regulate age discrimination thus unmistakably clear language statute atascadero supra see davidson board governors state colleges universities adea satisfies clear statement requirement dispute precise details statute application never extended plain statement approach far majority offers compelling reason majority also relies heavily cases addressing constitutionality state exclusion aliens public employment see ante cases held although restrictions based alienage ordinarily subject strict scrutiny equal protection clause see graham richardson scrutiny less demanding exclusion aliens positions intimately related process democratic bernal fainter narrow political function exception standard based state historical power exclude aliens participation democratic political institutions sugarman dougall difficult see political function exception supports majority plain statement rule first exception merely reflects determination scope rights aliens equal protection clause reduced scrutiny appropriate certain political functions right govern reserved citizens foley connelie see also sugarman supra conclusion way establishes method interpreting rights statutorily created congress protection age discrimination adea second one thing limit judicially created scrutiny quite another fashion restraint congress legislative authority majority latter intrusion branch federal government finally majority explicitly restrict rule functions go heart representative government may fact extending much state governmental functions see ante majority plain statement rule unprecedented contravenes decisions garcia san antonio metropolitan transit authority south carolina baker cases made clear must find protection congressional regulation national political process judicially defined spheres unregulable state activity also rejected unsound principle unworkable practice test state immunity requires judicial determination state activities traditional integral necessary garcia supra majority disregards decisions attempt carve areas state activity receive special protection federal legislation majority approach also unsound serve confuse law first majority fails explain scope rule rule limited federal regulation qualifications state officials see ante apply broadly regulation state governmental functions see ante second majority explain requirement congress intent regulate particular state activity plain anyone reading federal statute see ante mean improper look purpose history federal statute determining scope statute limitations state activities majority rule completely inconsistent preemption jurisprudence see hillsborough county automated medical laboratories preemption found clear manifest purpose displace state law emphasis added vagueness majority rule undoubtedly lead assert various federal statutes longer apply wide variety state activities congress expressly referred activities statute congress turn forced draft long detailed lists particular state functions meant regulate imposition burden congress particularly place context adea congress already stated individual employed employer protected adea unless expressly excluded one exceptions definition employee see majority however turns statute head holding state judges protected adea congress made clear judges included ante emphasis original cf eeoc wyoming held state game wardens covered adea even though employees expressly included within adea scope majority asserts plain statement rule helpful avoiding potential constitutional problem ante far clear however constitutional problem adea applied state judges light decisions garcia baker discussed long national political process operate defective manner tenth amendment implicated baker supra claim case political process adea extended state employees inadequate protect unduly burden ed federal government see garcia supra event discussed straightforward analysis adea definition employee reveals adea apply thus even potential constitutional problems extending adea state judges majority proposed plain statement rule necessary avoid case indeed case decided purely basis statutory interpretation majority announcement plain statement rule purportedly derived constitutional principles violates general practice avoiding unnecessary resolution constitutional issues disagreement majority end unwarranted announcement plain statement rule even disturbing treatment congress power fourteenth amendment see ante section provides congress shall power enforce appropriate legislation provisions article despite sweeping constitutional delegation authority congress majority holds plain statement rule apply full force legislation enacted enforce fourteenth amendment majority face ambiguity attribute congress intent intrude state governmental functions regardless whether congress acted pursuant commerce clause powers fourteenth amendment ante emphasis added majority failure recognize special status legislation enacted pursuant ignores unlike congress commerce clause power hen congress acts pursuant exercising legislative authority plenary within terms constitutional grant exercising authority one section constitutional amendment whose sections terms embody limitations state authority fitzpatrick bitzer indeed held principles federalism might otherwise obstacle congressional authority necessarily overridden power enforce civil war amendments appropriate legislation amendments specifically designed expansion federal power intrusion state sovereignty city rome see also eeoc wyoming supra majority relies upon pennhurst state school hospital halderman see ante case support approach merely stated quickly attribute congress unstated intent act authority enforce fourteenth amendment words pennhurst presumption designed answer question whether particular piece legislation enacted pursuant different majority apparent holding even congress acting pursuant nevertheless must specify precise details enactment majority departures established precedent even disturbing realized discussed case affirmed based simple statutory construction ii statute issue case adea definition employee provides term employee means individual employed employer except term employee shall include person elected public office state political subdivision state qualified voters thereof person chosen officer officer personal staff appointee policymaking level immediate adviser respect exercise constitutional legal powers office exemption set forth preceding sentence shall include employees subject civil service laws state government governmental agency political subdivision question us whether petitioners fall within third exception like appeals see assume petitioners initially appointed positions governor missouri appointed rather elected within meaning adea reasons also conclude petitioners policymaking level policy defined definite course method action selected government institution group individual among alternatives light given conditions guide usu ally determine present future decisions webster third new international dictionary applying definition clear decisionmaking engaged common law judges petitioners places policymaking level resolving disputes although judges operate unconstrained discretion choose among alternatives elaborate choices order guide determine present future decisions quotation justice holmes majority opinion see ante eloquent description policymaking nature judicial function justice cardozo also stated well common law judge indeed legislating within limits competence doubt limits judge narrower legislates gaps fills open spaces law ithin confines open spaces precedent tradition choice moves freedom stamps action creative law resulting product found made cardozo nature judicial process petitioners argue appointee policymaking level exception construed apply persons advise work closely elected official chose appointee brief petitioners support claim petitioners point exception sandwiched personal staff immediate adviser exceptions thus read covering similar employees petitioners premise however prove conclusion true placement appointee exception personal staff immediate adviser exceptions suggests similarity among three obvious similarity simply three sets employees connected way elected officials first third sets certain working relationship elected officials second appointed elected officials textual support concluding second set must also close working relationship elected officials indeed reading tend make appointee exception superfluous since personal staff immediate adviser exceptions seem cover appointees close working relationship elected officials petitioners seek rely legislative history help position little legislative history discussing definition employee adea petitioners point legislative history identical definition title vii anything history tends confirm appointee policymaking level exception designed exclude coverage adea appointments throughout state government structures including judicial appointments example debates concerning proposed extension title vii senator ervin repeatedly expressed concern unamended definition employee construed reach persons exercise legislative executive judicial powers political subdivisions emphasis added indeed expressly complained even exception unamended bill effect eeoc jurisdiction state judges whether elected appointed office also relevant senator taft comment order respond senator ervin concerns willing agree exception elected officials also top decisionmaking levels executive judicial branch well definition employee subsequently modified exclude four categories employees discussed conference committee added appointee policymaking level exception made clear separate nature exception intention conferees exempt elected officials members personal staffs persons appointed elected officials advisors policymaking positions highest levels departments agencies state local governments cabinet officers persons comparable responsibilities local level conf pp emphasis added addition phrase highest levels conference report suggests congress intent limit exception chain command much across agencies departments eeoc massachusetts also agree first circuit conclusion even lower judges fall within exception judge separate independent judicial officer top particular policymaking chain command responding higher appellate ibid reasons hold petitioners excluded coverage adea appointee policymaking level join parts iii opinion concur judgment footnotes lower courts addressed issue concluded appointed state judges fall within appointee policymaking level exception see case eeoc massachusetts sabo casey ed stout see also eeoc illinois nd see eeoc vermont schlitz virginia ed rev grounds dissent argues defer eeoc view regarding scope policymaking level exception see post disagree eeoc position embodied formal issuance agency regulation guideline policy statement administrative adjudication instead merely eeoc litigating position recent lawsuits accordingly entitled little deference see bowen georgetown university hospital agnes hospital sullivan cadc although dissent cite eeoc decision involving policymaking exception title vii see post decision state even dicta exception limited work closely elected officials rather merely stated exception applies officials highest levels state local government cch eeoc decisions event eeoc position reasons discussed inconsistent plain language statute issue deference due agency interpretations odds plain language statute public employees retirement system ohio betts justice blackmun justice marshall joins dissenting agree entirely cogent analysis contained part justice white opinion ante reasons well stated justice white question must resolve whether appointed missouri state judges excluded general prohibition mandatory retirement congress established federal age discrimination employment act adea part company justice white however determination appointed state judges fall within narrow exclusion adea coverage congress created appointee policymaking level two reasons accept notion appointed state judge appointee policymaking level first even assuming judges may described policymakers certain circumstances structure legislative history policymaker exclusion make clear judges kind policymakers congress intended exclude adea broad reach second whether plausible argument may made judges policymakers defer eeoc reasonable construction adea covering appointed state judges although may possible define appointed judge policymaker dictionary guide obligation construe exclusion appointee policymaking level sensitivity context congress placed construing undefined statutory term adhered steadfastly rule words grouped list given related meaning dole steelworkers quoting massachusetts morash quoting schreiber burlington northern quoting securities industry assn board governors frs expounding statute guided single sentence member sentence look provisions whole law object policy morash quoting pilot life insurance dedeaux applying maxims statutory construction conclude appointed state judge kind policymaker congress intended exclude protection adea policymaker exclusion placed exclusion person chosen elected officer officer personal staff exclusion immediate adviser respect exercise constitutional legal powers office see reading policymaker exclusion light categories employees listed conclude class appointee policymaking level limited officials share characteristics personal staff members immediate advisers work closely appointing official directly accountable official additionally agree reasoning second circuit eeoc vermont congress intended except category policymaking individuals operating wholly independently elected official probably placed expansive category end series middle evidence congress intent enacting policymaking exclusion supports narrow reading noted justice white ante little legislative history aid interpretive endeavor title vii civil rights act amended contains language identical adea policymaking exclusion however accord substantial weight legislative history cognate title vii provision construing see lorillard pons noting prohibitions adea derived haec verba title vii see also trans world airlines thurston oscar mayer evans eeoc vermont congress decided amend title vii include local governments employers original bill contain employee exclusion justice white notes ante absence provision excluding certain state employees matter concern senator ervin commented bill reported contain provision effect eeoc jurisdiction state judges whether elected appointed office floor comment refers appointed judges justice white concludes later amendment containing exclusion appointee policymaking level drafted response concerns raised senator ervin others ante therefore read include judges even legislative history available statement senator ervin final amendment containing policymaking exclusion reluctant accept justice white analysis odd conclude general exclusion policymaking level added response senator ervin specific concern appointed judges surely congress desired exclude judges responding specific complaint judges within jurisdiction eeoc chosen far clearer language accomplish end case detailed look genesis policymaking exclusion seriously undermines suggestion intended include appointed judges commenting absence employee exclusion senator ervin proposed following amendment term employee set forth original act modified pending bill shall include person elected public office state political subdivision state qualified voters thereof person chosen person advise respect exercise constitutional legal powers office williams first state local governments included bill employers amendment provide purposes bill basic law elected individual employee th refore law cover next point elected official position employer covered exempt employment certain individuals asically purpose amendment exempt coverage chosen governor mayor county supervisor whatever elected official close personal relationship immediate relationship first line advisers basically purpose senator amendment ervin say good friend new jersey purpose amendment policymaker exclusion appears arisen senator javits concern exclusion advisers sweep broadly including hundreds functionaries lawyers stenographers subpoena servers researchers forth senator javits asked overnight check status rather large group employees noting realize senator ervin seeking confine higher officials policymaking policy advising capacity ibid effort clarify point senator javits later stated thing immediate advisers thinking terms cabinet governor call commissioners cabinet may cabinet composed three four executive officials five six main important things define things expressly mean intention conferees exempt elected officials members personal staffs persons appointed officials advisors policymaking positions highest levels departments agencies state local governments cabinet officers persons comparable responsibilities local level conferees intent exemption shall construed narrowly conf pp held statutory term ambiguous undefined construing statute defer reasonable interpretation term proffered agency entrusted administering statute see chevron natural resources defense council thus even conclude one might read exclusion appointee policymaking level include state judges precedent compel accept eeoc contrary reading exclusion permissible interpretation ambiguous term recognized axiomatic eeoc interpretation title vii primary enforcement responsibility need best one grammatical standards rather eeoc interpretation ambiguous language need reasonable entitled deference eeoc commercial office products eeoc interpretation adea provisions entitled deference interpretation analogous provisions title vii see oscar mayer evans citing griggs duke power eeoc consistently taken position appointed judge appointee policymaking level within meaning see eeoc vermont eeoc massachusetts eeoc illinois nd relying legislative history detailed eeoc asserted congress intended policymaker exclusion include elected official first line advisers eeoc massachusetts see also cch eeoc decisions discussing meaning policymaker exclusion title vii stating policymakers must work closely elected officials advisors developing policies implement overall goals elected officials evident foregoing discussion believe correct reading statute history minimum permissible reading indisputably ambiguous term appointee policymaking level accordingly defer eeoc reasonable interpretation term ii missouri constitutional provision mandating retirement judge reaches age violates adea therefore invalid congress enacted adea express purpose promote employment older persons based ability rather age prohibit arbitrary age discrimination employment help employers workers find ways meeting problems arising impact age employment congress provided limited exclusions coverage adea exhorted courts applying law construe exclusions narrowly statute structure legislative history reveal congress intend appointed state judge beyond scope adea protective reach eeoc charged enforcement adea determined appointed state judge covered adea precedent dictates defer eeoc permissible interpretation adea dissent justice white finds dictionary definition policymaker broad enough include missouri judges involved case judges resolve disputes choosing among alternatives elaborate choices order guide determine present future decisions ante see also case quoting eeoc massachusetts hesitate classify judges policymakers even level abstraction although part judge task may fill interstices legislative enactments primary task judicial officer apply rules reflecting policy choices made behalf elected legislative executive positions judge first foremost one resolves disputes one charged duty fashion broad policies establishing rights duties citizens task reserved primarily legislators see eeoc vermont persuaded judges considered policymakers sometimes fashion rules otherwise involved administration state judiciary see stout housekeeping tasks ancillary judge primary function described disagree justice white suggestion reading policymaking exclusion renders superfluous ante exist policymakers work closely appointing official appropriately classified neither members personal staff immediate adviser respect exercise constitutional legal powers office among others certain members governor cabinet high level state agency officials well might covered policymaking exclusion construe majority acknowledges anomaly noting appointee policymaking level particularly context exceptions surround odd way congress exclude judges plain statement judges employees seem efficient phrasing ante majority dismisses objection refuting noting looking plain statement judges excluded ibid reasons noted part justice white opinion reasoning faulty appointed judges covered unless fall within enumerated exclusions relying bowen georgetown university hospital justice white conclude eeoc view scope policymaking exclusion entitled little deference merely eeoc litigating position recent lawsuits ante case distinguishable bowen however two important respects first unlike bowen declined defer agency litigating positions wholly unsupported regulations rulings administrative practice eeoc issued administrative ruling construing title vii cognate policymaking exclusion entirely consistent agency subsequent litigation position appointed judges kind officials policymaking level congress intended exclude adea coverage see cch eeoc decisions second bowen emphasized agency failed offer reasoned consistent view scope relevant statute proffered interpretation statute contrary narrow view provision advocated past cases see contrast however eeoc never waivered view policymaking exclusion apply appointed judges thus simply case asked defer nothing agency convenient litigating position reasons deference inappropriate bowen appropriate conclude challenged missouri constitutional provision violates adea need consider petitioners alternative argument mandatory retirement provision violates fourteenth amendment constitution see carnival cruise lines shute