Whatever else it may be in theory, it is in substance and fact a tax upon the employment of child labor and is so labeled by Congress. The title of the act is "A tax upon the employment of child labor." In other words, it is a frank attempt to regulate a purely internal affair of the states, evidently because in the opinion of Congress the states have not regulated it as the Congress thinks it should be regulated.
The question of the constitutionality of the statute challenged in this suit has heretofore been considered by this court, and it is deemed sufficient now to refer to the opinion rendered in the case of George v. Bailey, Collector, 274 Fed. 639. The opinion in that suit was based chiefly upon the case of Hammer v. Dagenhart, 247 U.S. 251, 38 Sup. Ct. 529, 62 L. Ed. 1101, 3 A.L.R. 649, Ann. Cas. 1918E, 724.
The great principle emphasized in that case and those cited by the court is that the preservation of the states and the maintenance of all the rights remaining in them after the adoption of the Constitution and the Tenth Amendment thereto are "as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the national government." If the vast field of power claimed by this act belongs to Congress, then it may be truly asserted that the states, as self-governing sovereigns with respect to their domestic concerns, exist merely at the will of Congress.
Is the statute in question valid?
As declared by the Supreme Court in the Passenger Tax Cases, 7 How. 283, 428, 12 L. Ed. 702: "That is a very narrow view of the Constitution which supposes that any political sovereign right given by it can be exercised, or was meant to be used, by the United States in such a way as to dissolve, or even disquiet, the fundamental organization of either of the states. The Constitution is to be interpreted by what was the condition of the parties to it when it was formed, by their object and purpose in forming it, and by the actual recognition in it of the dissimilar institutions of the states." If, therefore, the statute under consideration either directly or by its necessary operation substantially and necessarily disquiets and disturbs the states in their control of their internal affairs, it must be held invalid, whatever may have been the professed purpose for which it was enacted.