Garcia v. San Antonio Metropolitan Transit Authority

U.S. Supreme Court Garcia v. San Antonio Transit Auth., 469
U.S. 528 (1985) Garcia v. San Antonio Transit
Authority No. 82-1913 Argued March 19, 1984 Reargued October 1,
1984 Decided February 19, 1985 469
U.S. 528 ast|>* 469
U.S. 528 APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE WESTERN DISTRICT OF
TEXAS Syllabus Appellee San Antonio Metropolitan Transit Authority (SAMTA) is a
public mass transit authority that is the major provider of
transportation in the San Antonio, Tex., metropolitan area. It has
received substantial federal financial assistance under the Urban
Mass Transportation Act of 1964. In 1979, the Wage and Hour
Administration of the Department of Labor issued an opinion that
SAMTA's operations are not immune from the minimum wage and
overtime requirements of the Fair Labor Standards Act (FLSA) under National League of Cities v. Usery, 426 U.
S. 833 , in which it was held that the Commerce Clause
does not empower Congress to enforce such requirements against the
States "in areas of traditional governmental functions." Id. at 426 U. S. 852 .
SAMTA then filed an action in Federal District Court, seeking
declaratory relief. Entering judgment for SAMTA, the District Court
held that municipal ownership and operation of a mass transit
system is a traditional governmental function, and thus, under National League of Cities, is exempt from the obligations
imposed by the FLSA. Held: In affording SAMTA employees the protection of
the wage and hour provisions of the FLSA, Congress contravened no
affirmative limit on its power under the Commerce Clause. Pp. 469 U. S.
537 -557.

															(a) The attempt to draw the boundaries of state regulatory
immunity in terms of "traditional governmental functions" is not
only unworkable but is also inconsistent with established
principles of federalism and, indeed, with those very federalism
principles on which National League of Cities purported to
rest. That case, accordingly, is overruled. Pp. 469 U. S.
537 -547.

															(b) There is nothing in the overtime and minimum wage
requirements of the FLSA, as applied to SAMTA, that is destructive
of state sovereignty or violative of any constitutional provision.
The States' continued role in the federal system is primarily
guaranteed not by any externally Page 469 U. S. 529 imposed limits on the commerce power, but by the structure of
the Federal Government itself. In these cases, the political
process effectively protected that role. Pp. 469 U. S.
547 -555. 557 F.
Supp. 445 , reversed and remanded.

															BLACKMUN, J., delivered the opinion of the Court, in which
BRENNAN, WHITE, MARSHALL, and STEVENS, JJ., joined. POWELL, J.,
filed a dissenting opinion, in which BURGER, C.J., and REHNQUIST
and O'CONNOR, JJ., joined, post, p. 469 U. S. 557 .
REHNQUIST, J., filed a dissenting opinion, post, p. 469 U. S. 579 .
O'CONNOR, J., filed a dissenting opinion, in which POWELL and
REHNQUIST, JJ., joined, post, p. 469 U. S.
580 . Page 469 U. S. 530 JUSTICE BLACKMUN delivered the opinion of the Court.

															We revisit in these cases an issue raised in National League
of Cities v. Usery, 426 U. S. 833 (1976). In that litigation, this Court, by a sharply divided vote,
ruled that the Commerce Clause does not empower Congress to enforce
the minimum wage and overtime provisions of the Fair Labor
Standards Act (FLSA) against the States "in areas of traditional
governmental functions." Id. at 426 U. S. 852 .
Although National League of Cities supplied some examples
of "traditional governmental functions," it did not offer a general
explanation of how a "traditional" function is to be distinguished
from a "nontraditional" one. Since then, federal and state courts
have struggled with the task, thus imposed, of identifying a
traditional function for purposes of state immunity under the
Commerce Clause.

															In the present cases, a Federal District Court concluded that
municipal ownership and operation of a mass transit system is a
traditional governmental function and thus, under National
League of Cities, is exempt from the obligations imposed by
the FLSA. Faced with the identical question, three Federal Courts
of Appeals and one state appellate court have reached the opposite
conclusion. [ Footnote 1 ] Page 469 U. S. 531 Our examination of this "function" standard applied in these and
other cases over the last eight years now persuades us that the
attempt to draw the boundaries of state regulatory immunity in
terms of "traditional governmental function" is not only unworkable
but is also inconsistent with established principles of federalism
and, indeed, with those very federalism principles on which National League of Cities purported to rest. That case,
accordingly, is overruled. I The history of public transportation in San Antonio, Tex., is
characteristic of the history of local mass transit in the United
States generally. Passenger transportation for hire within San
Antonio originally was provided on a private basis by a local
transportation company. In 1913, the Texas Legislature authorized
the State's municipalities to regulate vehicles providing carriage
for hire. 1913 Tex.Gen.Laws, ch. 147, § 4, � 12, now codified, as
amended, as Tex.Rev.Civ.Stat.Ann., Art. 1175, §§ 20 and 21 (Vernon
1963). Two years later, San Antonio enacted an ordinance setting
forth franchising, insurance, and safety requirements for passenger
vehicles operated for hire. The city continued to rely on such
publicly regulated private mass transit until 1959, when it
purchased the privately owned San Antonio Transit Company and
replaced it with a public authority known as the San Antonio
Transit System (SATS). SATS operated until 1978, when the city
transferred its facilities and equipment to appellee San Antonio
Metropolitan Transit Authority (SAMTA), a public mass transit
authority organized on a county-wide basis. See generally Tex.Rev.Civ.Stat.Ann., Art. 1118x (Vernon Supp.1984). SAMTA
currently is the major provider of transportation in the San
Antonio metropolitan area; between 1978 and 1980 alone, its
vehicles traveled over 26 million route miles and carried over 63
million passengers. Page 469 U. S. 532 As did other localities, San Antonio reached the point where it
came to look to the Federal Government for financial assistance in
maintaining its public mass transit. SATS managed to meet its
operating expenses and bond obligations for the first decade of its
existence without federal or local financial aid. By 1970, however,
its financial position had deteriorated to the point where federal
subsidies were vital for its continued operation. SATS' general
manager that year testified before Congress that,

															"if we do not receive substantial help from the Federal
Government, San Antonio may . . . join the growing ranks of cities
that have inferior [public] transportation or may end up with no
[public] transportation at all. [ Footnote 2 ]"

															The principal federal program to which SATS and other mass
transit systems looked for relief was the Urban Mass Transportation
Act of 1964 (UMTA), Pub.L. 88-365, 78 Stat. 302, as amended, 49
U.S.C.App. § 1601 et seq., which provides substantial
federal assistance to urban mass transit programs. See
generally Jackson Transit Authority v. Transit Union, 457 U. S. 15 (1982). UMTA now authorizes the Department of Transportation to
fund 75 percent of the capital outlays and up to 50 percent of the
operating expenses of qualifying mass transit programs. §§ 4(a),
5(d) and (e), 49 U.S.C.App. §§ 1603(a), 1604(d) and (e). SATS
received its first UMTA subsidy, a $4.1 million capital grant, in
December, 1970. From then until February, 1980, SATS and SAMTA
received over $51 million in UMTA grants -- more than $31 million
in capital grants, over $20 million in operating assistance, and a
minor amount in technical assistance. During SAMTA's first two
fiscal years, it received $12.5 million in UMTA operating grants,
$26.8 million from sales taxes, and only $10.1 million from fares.
Federal subsidies Page 469 U. S. 533 and local sales taxes currently account for about 75 percent of
SAMTA's operating expenses.

															The present controversy concerns the extent to which SAMTA may
be subjected to the minimum wage and overtime requirements of the
FLSA. When the FLSA was enacted in 1938, its wage and overtime
provisions did not apply to local mass transit employees or,
indeed, to employees of state and local governments. §§ 3(d),
13(a)(9), 52 Stat. 1060, 1067. In 1961, Congress extended minimum
wage coverage to employees of any private mass transit carrier
whose annual gross revenue was not less than $1 million. Fair Labor
Standards Amendments of 1961, §§ 2(c), 9, 75 Stat. 65, 71. Five
years later, Congress extended FLSA coverage to state and local
government employees for the first time by withdrawing the minimum
wage and overtime exemptions from public hospitals, schools, and
mass transit carriers whose rates and services were subject to
state regulation. Fair Labor Standards Amendments of 1966, §§
102(a) and (b), 80 Stat. 831. At the same time, Congress eliminated
the overtime exemption for all mass transit employees other than
drivers, operators, and conductors. § 206(c), 80 Stat. 836. The
application of the FLSA to public schools and hospitals was ruled
to be within Congress' power under the Commerce Clause. Maryland v. Wirtz, 392 U. S. 183 (1968).

															The FLSA obligations of public mass transit systems like SATS
were expanded in 1974 when Congress provided for the progressive
repeal of the surviving overtime exemption for mass transit
employees. Fair Labor Standards Amendments of 1974, § 21(b), 88
Stat. 68. Congress simultaneously brought the States and their
subdivisions further within the ambit of the FLSA by extending FLSA
coverage to virtually all state and local government employees. §§
6(a)(1) and (6), 88 Stat. 58, 60, 29 U.S.C. §§ 203(d) and (x). SATS
complied with the FLSA's overtime requirements until 1976, when
this Court, in National League of Cities, overruled Maryland v. Wirtz and held that the FLSA could not be Page 469 U. S. 534 applied constitutionally to the "traditional governmental
functions" of state and local governments. Four months after National League of Cities was handed down, SATS informed
its employees that the decision relieved SATS of its overtime
obligations under the FLSA. [ Footnote 3 ]

															Matters rested there until September 17, 1979, when the Wage and
Hour Administration of the Department of Labor issued an opinion
that SAMTA's operations "are not constitutionally immune from the
application of the Fair Labor Standards Act" under National
League of Cities. Opinion WH-499, 6 LRR 91:1138. On November
21 of that year, SAMTA filed this action against the Secretary of
Labor in the United States District Court for the Western District
of Texas. It sought a declaratory judgment that, contrary to the
Wage and Hour Administration's determination, National League
of Cities precluded the application of the FLSA's overtime
requirements to SAMTA's operations. The Secretary counterclaimed
under 29 U.S.C. § 217 for enforcement of the overtime and
recordkeeping requirements of the FLSA. On the same day that SAMTA
filed its action, appellant Garcia and several other SAMTA
employees brought suit against SAMTA in the same District Court for
overtime pay under the FLSA. Garcia v. SAMTA, Civil Action
No. SA 79 CA 458. The District Court has stayed that action pending
the outcome of these cases, but it allowed Garcia to intervene in
the present litigation as a defendant in support of the Secretary.
One month after SAMTA brought suit, the Department of Labor
formally amended its FLSA interpretive regulations to provide that
publicly owned local mass transit systems are not entitled to
immunity under Page 469 U. S. 535 National League of Cities. 44 Fed.Reg. 75630 (1979),
codified as 29 CFR § 775.3(b)(3) (1984).

															On November 17, 1981, the District Court granted SAMTA's motion
for summary judgment and denied the Secretary's and Garcia's
cross-motion for partial summary judgment. Without further
explanation, the District Court ruled that

															"local public mass transit systems (including [SAMTA])
constitute integral operations in areas of traditional governmental
functions"

															under National League of Cities. App. D to Juris.
Statement in No. 82-1913, p. 24a. The Secretary and Garcia both
appealed directly to this Court pursuant to 28 U.S.C. § 1252.
During the pendency of those appeals, Transportation Union v.
Long Island R. Co., 455 U. S. 678 (1982), was decided. In that case, the Court ruled that commuter
rail service provided by the state-owned Long Island Rail Road did
not constitute a "traditional governmental function," and hence did
not enjoy constitutional immunity, under National League of
Cities, from the requirements of the Railway Labor Act.
Thereafter, it vacated the District Court's judgment in the present
cases and remanded them for further consideration in the light of Long Island. 457 U.S. 1102 (1982).

															On remand, the District Court adhered to its original view and
again entered judgment for SAMTA. 557 F.
Supp. 445 (1983). The court looked first to what it regarded as
the "historical reality" of state involvement in mass transit. It
recognized that States not always had owned and operated mass
transit systems, but concluded that they had engaged in a
longstanding pattern of public regulation, and that this regulatory
tradition gave rise to an "inference of sovereignty." Id. at 447-448. The court next looked to the record of federal
involvement in the field, and concluded that constitutional
immunity would not result in an erosion of federal authority with
respect to state-owned mass transit systems, because many federal
statutes themselves contain exemptions for States, and thus make
the withdrawal of federal Page 469 U. S. 536 regulatory power over public mass transit systems a supervening
federal policy. Id. at 448-450. Although the Federal
Government's authority over employee wages under the FLSA obviously
would be eroded, Congress had not asserted any interest in the
wages of public mass transit employees until 1966, and hence had
not established a longstanding federal interest in the field, in
contrast to the century-old federal regulatory presence in the
railroad industry found significant for the decision in Long
Island. Finally, the court compared mass transit to the list
of functions identified as constitutionally immune in National
League of Cities and concluded that it did not differ from
those functions in any material respect. The court stated:

															"If transit is to be distinguished from the exempt [ National
League of Cities ] functions, it will have to be by identifying
a traditional state function in the same way pornography is
sometimes identified: someone knows it when they see it, but they
can't describe it."

															557 F. Supp. at 453. [ Footnote
4 ]

															The Secretary and Garcia again took direct appeals from the
District Court's judgment. We noted probable jurisdiction. 464 U.S.
812 (1983). After initial argument, the cases were restored to our
calendar for reargument, and the parties were requested to brief
and argue the following additional question:

															"Whether or not the principles of the Tenth Amendment as set
forth in National League of Cities v. Usery, 426 U. S.
833 (1976), should be reconsidered?"

															468 U.S. 1213 (1984). Reargument followed in due course. Page 469 U. S. 537 II Appellees have not argued that SAMTA is immune from regulation
under the FLSA on the ground that it is a local transit system
engaged in intrastate commercial activity. In a practical sense,
SAMTA's operations might well be characterized as "local."
Nonetheless, it long has been settled that Congress' authority
under the Commerce Clause extends to intrastate economic activities
that affect interstate commerce. See, e.g., Hodel v. Virginia
Surface Mining & Recl. Assn., 452 U.
S. 264 , 452 U. S.
276 -277 (1981); Heart of Atlanta Motel, Inc. v.
United States, 379 U. S. 241 , 379 U. S. 258 (1964); Wickard v. Filburn, 317 U.
S. 111 , 317 U. S. 125 (1942); United States v. Darby, 312 U.
S. 100 (1941). Were SAMTA a privately owned and operated
enterprise, it could not credibly argue that Congress exceeded the
bounds of its Commerce Clause powers in prescribing minimum wages
and overtime rates for SAMTA's employees. Any constitutional
exemption from the requirements of the FLSA therefore must rest on
SAMTA's status as a governmental entity, rather than on the "local"
nature of its operations.

															The prerequisites for governmental immunity under National
League of Cities were summarized by this Court in Hodel,
supra. Under that summary, four conditions must be satisfied
before a state activity may be deemed immune from a particular
federal regulation under the Commerce Clause. First, it is said
that the federal statute at issue must regulate "the states as
States.'" Second, the statute must "address matters that are
indisputably `attribute[s] of state sovereignty.'" Third, state
compliance with the federal obligation must "directly impair [the
States'] ability `to structure integral operations in areas of
traditional governmental functions.'" Finally, the relation of
state and federal interests must not be such that "the nature of
the federal interest . . . justifies state submission." 452 U.S. at 452 U. S.
287 -288, and n. 29, quoting National League of
Cities, 426 U.S. at 426 U. S. 845 , 426 U. S. 852 , 426 U. S.
854 . Page 469 U. S. 538 The controversy in the present cases has focused on the third Hodel requirement -- that the challenged federal statute
trench on "traditional governmental functions." The District Court
voiced a common concern: "Despite the abundance of adjectives,
identifying which particular state functions are immune remains
difficult." 557 F. Supp. at 447. Just how troublesome the task has
been is revealed by the results reached in other federal cases.
Thus, courts have held that regulating ambulance services, Gold
Cross Ambulance v. City of Kansas City, 538 F.
Supp. 956 , 967-969 (WD Mo.1982), aff'd on other
grounds, 705 F.2d 1005 (CA8 1983), cert. pending, No.
83-138; licensing automobile drivers, United States v.
Best, 573 F.2d 1095, 1102-1103 (CA9 1978); operating a
municipal airport, Amersbach v. City of Cleveland, 598
F.2d 1033, 1037-1038 (CA6 1979); performing solid waste disposal, Hybud Equipment Corp. v. City of Akron, 654 F.2d 1187,
1196 (CA6 1981); and operating a highway authority, Molina-Estrada v. Puerto Rico Highway Authority, 680 F.2d
841, 845-846 (CA1 1982), are functions protected under National
League of Cities. At the same time, courts have held that
issuance of industrial development bonds, Woods v. Homes and
Structures of Pittsburg, Kansas, Inc., 489 F.
Supp. 1270 , 1296-1297 (Kan.1980); regulation of intrastate
natural gas sales, Oklahoma ex rel. Derryberry v.
FERC, 494 F.
Supp. 636 , 657 (WD Okla.1980), aff'd, 661 F.2d 832
(CA10 1981), cert. denied sub nom. Texas v. FERC, 457 U.S.
1105 (1982); regulation of traffic on public roads, Friends of
the Earth v. Carey, 552 F.2d 25, 38 (CA2), cert.
denied, 434 U.S. 902 (1977); regulation of air transportation, Hughes Air Corp. v. Public Utilities Comm'n of Cal., 644
F.2d 1334, 1340-1341 (CA9 1981); operation of a telephone system, Puerto Rico Tel. Co. v. FCC, 553 F.2d 694, 700-701 (CA1
1977); leasing and sale of natural gas, Public Service Co. of
N.C. v. FERC, 587 F.2d 716, 721 (CA5), cert. denied sub
nom. Louisiana v. FERC, 444 U.S. 879 (1979); operation of a
mental health facility, Williams v. Eastside Mental Page 469 U. S. 539 Health Center, Inc., 669 F.2d 671, 680-681 (CA11), cert. denied, 459 U.S. 976 (1982); and provision of
in-house domestic services for the aged and handicapped, Bonnette v. California Health and Welfare Agency, 704 F.2d
1465, 1472 (CA9 1983), are not entitled to immunity. We find it
difficult, if not impossible, to identify an organizing principle
that places each of the cases in the first group on one side of a
line and each of the cases in the second group on the other side.
The constitutional distinction between licensing drivers and
regulating traffic, for example, or between operating a highway
authority and operating a mental health facility, is elusive, at
best.

															Thus far, this Court itself has made little headway in defining
the scope of the governmental functions deemed protected under National League of Cities. In that case, the Court set
forth examples of protected and unprotected functions, see 426 U.S. at 426 U. S. 851 ,
854, n. 18, but provided no explanation of how those examples were
identified. The only other case in which the Court has had occasion
to address the problem is Long Island. [ Footnote 5 ] We there observed:

															"The determination of whether a federal law impairs a state's
authority with respect to 'areas of traditional [state] functions'
may at times be a difficult one."

															455 U.S. at 455 U. S. 684 ,
quoting National League of Cities, 426 U.S. at 426 U. S. 852 .
The accuracy of that statement is demonstrated by this Court's own
difficulties in Long Island in developing a workable
standard for "traditional governmental functions." We relied in
large part there on "the historical reality that the
operation of railroads is not among the functions traditionally performed by state and local governments,"
but we Page 469 U. S. 540 simultaneously disavowed "a static historical view of state
functions generally immune from federal regulation." 455 U.S. at 455 U. S. 686 (first emphasis added; second emphasis in original). We held that
the inquiry into a particular function's "traditional" nature was
merely a means of determining whether the federal statute at issue
unduly handicaps "basic state prerogatives," id. at 455 U. S.
686 -687, but we did not offer an explanation of what
makes one state function a "basic prerogative" and another function
not basic. Finally, having disclaimed a rigid reliance on the
historical pedigree of state involvement in a particular area, we
nonetheless found it appropriate to emphasize the extended
historical record of federal involvement in the field of
rail transportation. Id. at 455 U. S.
687 -689.

															Many constitutional standards involve "undoubte[d] . . . gray
areas," Fry v. United States, 421 U.
S. 542 , 421 U. S. 558 (1975) (dissenting opinion), and, despite the difficulties that
this Court and other courts have encountered so far, it normally
might be fair to venture the assumption that case-by-case
development would lead to a workable standard for determining
whether a particular governmental function should be immune from
federal regulation under the Commerce Clause. A further cautionary
note is sounded, however, by the Court's experience in the related
field of state immunity from federal taxation. In South
Carolina v. United States, 199 U. S. 437 (1905), the Court held for the first time that the state tax
immunity recognized in Collector v.
Day , 11 Wall. 113 (1871), extended only to the
"ordinary" and "strictly governmental" instrumentalities of state
governments, and not to instrumentalities "used by the State in the
carrying on of an ordinary private business." 199 U.S. at 199 U. S. 451 , 199 U. S. 461 .
While the Court applied the distinction outlined in South
Carolina for the following 40 years, at no time during that
period did the Court develop a consistent formulation of the kinds
of governmental functions that were entitled to immunity. The Court
identified the protected functions at various times as "essential,"
"usual," "traditional," or "strictly governmental." [ Footnote 6 ] Page 469 U. S. 541 While "these differences in phraseology . . . must not be too
literally contradistinguished," Brush v. Commissioner, 300 U. S. 352 , 300 U. S. 362 (1937), they reflect an inability to specify precisely what aspects
of a governmental function made it necessary to the "unimpaired
existence" of the States. Collector v. Day, 11 Wall. at 78 U. S. 127 .
Indeed, the Court ultimately chose

															"not, by an attempt to formulate any general test, [to] risk
embarrassing the decision of cases [concerning] activities of a
different kind which may arise in the future." Brush v. Commissioner, 300 U.S. at 300 U. S.
365 .

															If these tax immunity cases had any common thread, it was in the
attempt to distinguish between "governmental" and "proprietary"
functions. [ Footnote 7 ] To say
that the distinction between Page 469 U. S. 542 "governmental" and "proprietary" proved to be stable, however,
would be something of an overstatement. In 1911, for example, the
Court declared that the provision of a municipal water supply "is
no part of the essential governmental functions of a State." Flint v. Stone Tracy Co., 220 U.
S. 107 , 220 U. S. 172 .
Twenty-six years later, without any intervening change in the
applicable legal standards, the Court simply rejected its earlier
position and decided that the provision of a municipal water supply
was immune from federal taxation as an essential governmental
function, even though municipal waterworks long had been operated
for profit by private industry. Brush v. Commissioner, 300
U.S. at 300 U. S.
370 -373. At the same time that the Court was holding a
municipal water supply to be immune from federal taxes, it had held
that a state-run commuter rail system was not immune. Helvering
v. Powers, 293 U. S. 214 (1934). Justice Black, in Helvering v. Gerhardt, 304 U. S. 405 , 304 U. S. 427 (1938), was moved to observe:

															"An implied constitutional distinction which taxes income of an
officer of a state-operated transportation system and exempts
income of the manager of a municipal water works system manifests
the uncertainty created by the 'essential' and 'non-essential'
test"

															(concurring opinion). It was this uncertainty and instability
that led the Court shortly thereafter, in New York v. United
States, 326 U. S. 572 (1946), unanimously to conclude that the distinction between
"governmental" and "proprietary" functions was "untenable," and
must be abandoned. See id. at 326 U. S. 583 (opinion of Frankfurter, J., joined by Rutledge, J.); id. at 326 U. S. 586 (Stone, C.J., concurring, joined by Reed, Murphy, and Burton, JJ.); id. at 326 U. S.
590 -596 (Douglas, J., dissenting, joined by Black, J.). See also Massachusetts v. United States, 435 U.
S. 444 , 435 U. S. 457 ,
and n. 14 (1978) (plurality opinion); Case v. Bowles, 327 U. S. 92 , 327 U. S. 101 (1946). Page 469 U. S. 543 Even during the heyday of the governmental/proprietary
distinction in intergovernmental tax immunity doctrine, the Court
never explained the constitutional basis for that distinction. In South Carolina, it expressed its concern that unlimited
state immunity from federal taxation would allow the States to
undermine the Federal Government's tax base by expanding into
previously private sectors of the economy. See 199 U.S. at 199 U. S.
454 -455. [ Footnote
8 ] Although the need to reconcile state and federal interests
obviously demanded that state immunity have some limiting
principle, the Court did not try to justify the particular result
it reached; it simply concluded that a "line [must] be drawn," id. at 199 U. S. 456 ,
and proceeded to draw that line. The Court's elaborations in later
cases, such as the assertion in Ohio v. Helvering, 292 U. S. 360 , 292 U. S. 369 (1934), that "[w]hen a state enters the market place seeking
customers, it divests itself of its quasi sovereignty pro tanto, " sound more of ipse dixit than
reasoned explanation. This inability to give principled content to
the distinction between "governmental" and "proprietary," no less
significantly than its unworkability, led the Court to abandon the
distinction in New York v. United States. The distinction the Court discarded as unworkable in the field
of tax immunity has proved no more fruitful in the field of
regulatory immunity under the Commerce Clause. Neither do any of
the alternative standards that might be employed to distinguish
between protected and unprotected governmental functions appear
manageable. We rejected the possibility of making immunity turn on
a purely historical standard of "tradition" in Long
Island, and properly so. The most obvious defect of a
historical approach to state immunity is that it prevents a court
from accommodating changes in the historical functions of States,
changes that have resulted Page 469 U. S. 544 in a number of once-private functions like education being
assumed by the States and their subdivisions. [ Footnote 9 ] At the same time, the only apparent
virtue of a rigorous historical standard, namely, its promise of a
reasonably objective measure for state immunity, is illusory.
Reliance on history as an organizing principle results in
line-drawing of the most arbitrary sort; the genesis of state
governmental functions stretches over a historical continuum from
before the Revolution to the present, and courts would have to
decide by fiat precisely how longstanding a pattern of state
involvement had to be for federal regulatory authority to be
defeated. [ Footnote 10 ] Page 469 U. S. 545 A nonhistorical standard for selecting immune governmental
functions is likely to be just as unworkable as is a historical
standard. The goal of identifying "uniquely" governmental
functions, for example, has been rejected by the Court in the field
of government tort liability in part because the notion of a
"uniquely" governmental function is unmanageable. See Indian
Towing Co. v. United States, 350 U. S. 61 , 350 U. S. 64 -68
(1955); see also Lafayette v. Louisiana Power & Light
Co., 435 U. S. 389 , 435 U. S. 433 (1978) (dissenting opinion). Another possibility would be to
confine immunity to "necessary" governmental services, that is,
services that would be provided inadequately or not at all unless
the government provided them. Cf. Flint v. Stone Tracy
Co., 220 U.S. at 220 U. S. 172 .
The set of services that fits into this category, however, may well
be negligible. The fact that an unregulated market produces less of
some service than a State deems desirable does not mean that the
State itself must provide the service; in most if not all cases,
the State can "contract out" by hiring private firms to provide the
service or simply by providing subsidies to existing suppliers. It
also is open to question how well equipped courts are to make this
kind of determination about the workings of economic markets.

															We believe, however, that there is a more fundamental problem at
work here, a problem that explains why the Court was never able to
provide a basis for the governmental/proprietary distinction in the
intergovernmental tax immunity cases and why an attempt to draw
similar distinctions with respect to federal regulatory authority
under National League of Cities is unlikely to succeed
regardless of how the distinctions are phrased. The problem is that
neither the governmental/proprietary distinction nor any Page 469 U. S. 546 other that purports to separate out important governmental
functions can be faithful to the role of federalism in a democratic
society. The essence of our federal system is that, within the
realm of authority left open to them under the Constitution, the
States must be equally free to engage in any activity that their
citizens choose for the common weal, no matter how unorthodox or
unnecessary anyone else -- including the judiciary -- deems state
involvement to be. Any rule of state immunity that looks to the
"traditional," "integral," or "necessary" nature of governmental
functions inevitably invites an unelected federal judiciary to make
decisions about which state policies it favors and which ones it
dislikes. "The science of government . . . is the science of
experiment," Anderson v.
Dunn , 6 Wheat. 204, 19 U. S. 226 (1821), and the States cannot serve as laboratories for social and
economic experiment, see New State Ice Co. v. Liebmann, 285 U. S. 262 , 285 U. S. 311 (1932) (Brandeis, J., dissenting), if they must pay an added price
when they meet the changing needs of their citizenry by taking up
functions that an earlier day and a different society left in
private hands. In the words of Justice Black:

															"There is not, and there cannot be, any unchanging line of
demarcation between essential and nonessential governmental
functions. Many governmental functions of today have at some time
in the past been nongovernmental. The genius of our government
provides that, within the sphere of constitutional action, the
people -- acting not through the courts but through their elected
legislative representatives -- have the power to determine, as
conditions demand, what services and functions the public welfare
requires." Helvering v. Gerhardt, 304 U.S. at 304 U. S. 427 (concurring opinion).

															We therefore now reject, as unsound in principle and unworkable
in practice, a rule of state immunity from federal regulation that
turns on a judicial appraisal of whether a Page 469 U. S. 547 particular governmental function is "integral" or "traditional."
Any such rule leads to inconsistent results at the same time that
it disserves principles of democratic self-governance, and it
breeds inconsistency precisely because it is divorced from those
principles. If there are to be limits on the Federal Government's
power to interfere with state functions -- as undoubtedly there are
-- we must look elsewhere to find them. We accordingly return to
the underlying issue that confronted this Court in National
League of Cities -- the manner in which the Constitution
insulates States from the reach of Congress' power under the
Commerce Clause. III The central theme of National League of Cities was that
the States occupy a special position in our constitutional system,
and that the scope of Congress' authority under the Commerce Clause
must reflect that position. Of course, the Commerce Clause, by its
specific language, does not provide any special limitation on
Congress' actions with respect to the States. See EEOC v.
Wyoming, 460 U. S. 226 , 460 U. S. 248 (1983) (concurring opinion). It is equally true, however, that the
text of the Constitution provides the beginning, rather than the
final answer, to every inquiry into questions of federalism, for
"[b]ehind the words of the constitutional provisions are postulates
which limit and control." Monaco v. Mississippi, 292 U. S. 313 , 292 U. S. 322 (1934). National League of Cities reflected the general
conviction that the Constitution precludes "the National Government
[from] devour[ing] the essentials of state sovereignty." Maryland v. Wirtz, 392 U.S. at 392 U. S. 205 (dissenting opinion). In order to be faithful to the underlying
federal premises of the Constitution, courts must look for the
"postulates which limit and control."

															What has proved problematic is not the perception that the
Constitution's federal structure imposes limitations on the
Commerce Clause, but rather the nature and content of those
limitations. One approach to defining the limits on Congress' Page 469 U. S. 548 authority to regulate the States under the Commerce Clause is to
identify certain underlying elements of political sovereignty that
are deemed essential to the States' "separate and independent
existence." Lane County v.
Oregon , 7 Wall. 71, 74 U. S. 76 (1869). This approach obviously underlay the Court's use of the
"traditional governmental function" concept in National League
of Cities. It also has led to the separate requirement that
the challenged federal statute "address matters that are
indisputably attribute[s] of state sovereignty.'" Hodel, 452 U.S. at 452 U. S. 288 ,
quoting National League of Cities, 426 U.S. at 426 U. S. 845 .
In National League of Cities itself, for example, the
Court concluded that decisions by a State concerning the wages and
hours of its employees are an "undoubted attribute of state
sovereignty." 426 U.S. at 426 U. S. 845 .
The opinion did not explain what aspects of such decisions made
them such an "undoubted attribute," and the Court since then has
remarked on the uncertain scope of the concept. See EEOC v.
Wyoming, 460 U.S. at 460 U. S. 238 ,
n. 11. The point of the inquiry, however, has remained to single
out particular features of a State's internal governance that are
deemed to be intrinsic parts of state sovereignty. We doubt that
courts ultimately can identify principled constitutional
limitations on the scope of Congress' Commerce Clause powers over
the States merely by relying on a priori definitions of
state sovereignty. In part, this is because of the elusiveness of
objective criteria for "fundamental" elements of state sovereignty,
a problem we have witnessed in the search for "traditional
governmental functions." There is, however, a more fundamental
reason: the sovereignty of the States is limited by the
Constitution itself. A variety of sovereign powers, for example,
are withdrawn from the States by Article I, § 10. Section 8 of the
same Article works an equally sharp contraction of state
sovereignty by authorizing Congress to exercise a wide range of
legislative powers and (in conjunction with the Supremacy Clause of
Article VI) to displace contrary state legislation. See Page 469 U. S. 549 Hodel, 452 U.S. at 452 U. S.
290 -292. By providing for final review of questions of
federal law in this Court, Article III curtails the sovereign power
of the States' judiciaries to make authoritative determinations of
law. See Martin v. Hunter's
Lessee , 1 Wheat. 304 (1816). Finally, the developed
application, through the Fourteenth Amendment, of the greater part
of the Bill of Rights to the States limits the sovereign authority
that States otherwise would possess to legislate with respect to
their citizens and to conduct their own affairs.

															The States unquestionably do "retai[n] a significant measure of
sovereign authority." EEOC v. Wyoming, 460 U.S. at 460 U. S. 269 (POWELL, J., dissenting). They do so, however, only to the extent
that the Constitution has not divested them of their original
powers and transferred those powers to the Federal Government. In
the words of James Madison to the Members of the First
Congress:

															"Interference with the power of the States was no constitutional
criterion of the power of Congress. If the power was not given,
Congress could not exercise it; if given, they might exercise it,
although it should interfere with the laws, or even the
Constitution of the States."

															2 Annals of Cong. 1897 (1791). Justice Field made the same point
in the course of his defense of state autonomy in his dissenting
opinion in Baltimore & Ohio R. Co. v. Baugh, 149 U. S. 368 , 149 U. S. 401 (1893), a defense quoted with approval in Erie R. Co. v.
Tompkins, 304 U. S. 64 , 304 U. S. 78 -79
(1938):

															"[T]he Constitution of the United States . . . recognizes and
preserves the autonomy and independence of the States --
independence in their legislative and independence in their
judicial departments. [Federal] [s]upervision over either the
legislative or the judicial action of the States is in no case
permissible except as to matters by the Constitution specifically
authorized or delegated to the United States. Any interference with
either, except as thus permitted, is an invasion of Page 469 U. S. 550 the authority of the State and, to that extent, a denial of its
independence."

															As a result, to say that the Constitution assumes the continued
role of the States is to say little about the nature of that role.
Only recently, this Court recognized that the purpose of the
constitutional immunity recognized in National League of
Cities is not to preserve "a sacred province of state
autonomy." EEOC v. Wyoming, 460 U.S. at 460 U. S. 236 .
With rare exceptions, like the guarantee, in Article IV, § 3, of
state territorial integrity, the Constitution does not carve out
express elements of state sovereignty that Congress may not employ
its delegated powers to displace. James Wilson reminded the
Pennsylvania ratifying convention in 1787:

															"It is true, indeed, sir, although it presupposes the existence
of state governments, yet this Constitution does not suppose them
to be the sole power to be respected."

															2 Debates in the Several State Conventions on the Adoption of
the Federal Constitution 439 (J. Elliot 2d ed. 1876) (Elliot). The
power of the Federal Government is a "power to be respected" as
well, and the fact that the States remain sovereign as to all
powers not vested in Congress or denied them by the Constitution
offers no guidance about where the frontier between state and
federal power lies. In short, we have no license to employ
freestanding conceptions of state sovereignty when measuring
congressional authority under the Commerce Clause.

															When we look for the States"'residuary and inviolable
sovereignty," The Federalist No. 39, p. 285 (B. Wright ed.1961) (J.
Madison), in the shape of the constitutional scheme, rather than in
predetermined notions of sovereign power, a different measure of
state sovereignty emerges. Apart from the limitation on federal
authority inherent in the delegated nature of Congress' Article I
powers, the principal means chosen by the Framers to ensure the
role of the States in the federal system lies in the structure of
the Federal Government itself. It is no novelty to observe that the
composition of the Federal Page 469 U. S. 551 Government was designed in large part to protect the States from
overreaching by Congress. [ Footnote 11 ] The Framers thus gave the States a role in
the selection both of the Executive and the Legislative Branches of
the Federal Government. The States were vested with indirect
influence over the House of Representatives and the Presidency by
their control of electoral qualifications and their role in
Presidential elections. U.S.Const., Art. I, § 2, and Art. II, § 1.
They were given more direct influence in the Senate, where each
State received equal representation and each Senator was to be
selected by the legislature of his State. Art. I, § 3. The
significance attached to the States' equal representation in the
Senate is underscored by the prohibition of any constitutional
amendment divesting a State of equal representation without the
State's consent. Art. V.

															The extent to which the structure of the Federal Government
itself was relied on to insulate the interests of the States is
evident in the views of the Framers. James Madison explained that
the Federal Government

															"will partake sufficiently of the spirit [of the States], to be
disinclined to invade the rights of the individual States, or the
prerogatives of their governments."

															The Federalist No. 46, p. 332 (B. Wright ed.1961). Similarly,
James Wilson observed that "it was a favorite object in the
Convention" to provide for the security of the States against
federal encroachment, and that the structure of the Federal
Government itself served that end. 2 Elliot at 438-439. Madison
placed particular reliance on the equal representation of the
States in the Senate, which he saw as

															"at once a constitutional recognition of the portion of
sovereignty remaining in the individual Page 469 U. S. 552 States, and an instrument for preserving that residuary
sovereignty."

															The Federalist No. 62, p. 408 (B. Wright ed.1961). He further
noted that

															"the residuary sovereignty of the States [is] implied and
secured by that principle of representation in one branch of
the [federal] legislature."

															(Emphasis added.) The Federalist No. 43, p. 315 (B. Wright
ed.1961). See also McCulloch v.
Maryland , 4 Wheat. 316, 17 U. S. 435 (1819). In short, the Framers chose to rely on a federal system in
which special restraints on federal power over the States inhered
principally in the workings of the National Government itself,
rather than in discrete limitations on the objects of federal
authority. State sovereign interests, then, are more properly
protected by procedural safeguards inherent in the structure of the
federal system than by judicially created limitations on federal
power.

															The effectiveness of the federal political process in preserving
the States' interests is apparent even today in the course of
federal legislation. On the one hand, the States have been able to
direct a substantial proportion of federal revenues into their own
treasuries in the form of general and program-specific grants in
aid. The federal role in assisting state and local governments is a
longstanding one; Congress provided federal land grants to finance
state governments from the beginning of the Republic, and direct
cash grants were awarded as early as 1887 under the Hatch Act.
[ Footnote 12 ] In the past
quarter century alone, federal grants to States and localities have
grown from $7 billion to $96 billion. [ Footnote 13 ] As a result, federal Page 469 U. S. 553 grants now account for about one-fifth of state and local
government expenditures. [ Footnote 14 ] The States have obtained federal funding for
such services as police and fire protection, education, public
health and hospitals, parks and recreation, and sanitation.
[ Footnote 15 ] Moreover, at
the same time that the States have exercised their influence to
obtain federal support, they have been able to exempt themselves
from a wide variety of obligations imposed by Congress under the
Commerce Clause. For example, the Federal Power Act, the National
Labor Relations Act, the Labor-Management Reporting and Disclosure
Act, the Occupational Safety and Health Act, the Employee
Retirement Income Security Act, and the Sherman Act all contain
express or implied exemptions for States and their subdivisions.
[ Footnote 16 ] The fact that
some federal statutes such as the FLSA extend general obligations
to the States cannot obscure the extent to which the political
position of Page 469 U. S. 554 the States in the federal system has served to minimize the
burdens that the States bear under the Commerce Clause. [ Footnote 17 ]

															We realize that changes in the structure of the Federal
Government have taken place since 1789, not the least of which has
been the substitution of popular election of Senators by the
adoption of the Seventeenth Amendment in 1913, and that these
changes may work to alter the influence of the States in the
federal political process. [ Footnote 18 ] Nonetheless, against this background, we are
convinced that the fundamental limitation that the constitutional
scheme imposes on the Commerce Clause to protect the "States as
States" is one of process, rather than one of result. Any
substantive restraint on the exercise of Commerce Clause powers
must find its justification in the procedural nature of this basic
limitation, and it must be tailored to compensate for possible
failings in the national political process, rather than to dictate
a "sacred province of state autonomy." EEOC v. Wyoming, 460 U.S. at 460 U. S.
236 .

															Insofar as the present cases are concerned, then, we need go no
further than to state that we perceive nothing in the overtime and
minimum wage requirements of the FLSA, as applied to SAMTA, that is
destructive of state sovereignty or violative of any constitutional
provision. SAMTA faces nothing more than the same minimum wage and
overtime obligations that hundreds of thousands of other employers,
public as well as private, have to meet. Page 469 U. S. 555 In these cases, the status of public mass transit simply
underscores the extent to which the structural protections of the
Constitution insulate the States from federally imposed burdens.
When Congress first subjected state mass transit systems to FLSA
obligations in 1966, and when it expanded those obligations in
1974, it simultaneously provided extensive funding for state and
local mass transit through UMTA. In the two decades since its
enactment, UMTA has provided over $22 billion in mass transit aid
to States and localities. [ Footnote 19 ] In 1983 alone, UMTA funding amounted to $3.7
billion. [ Footnote 20 ] As
noted above, SAMTA and its immediate predecessor have received a
substantial amount of UMTA funding, including over $12 million
during SAMTA's first two fiscal years alone. In short, Congress has
not simply placed a financial burden on the shoulders of States and
localities that operate mass transit systems, but has provided
substantial countervailing financial assistance as well, assistance
that may leave individual mass transit systems better off than they
would have been had Congress never intervened at all in the area.
Congress' treatment of public mass transit reinforces our
conviction that the national political process systematically
protects States from the risk of having their functions in that
area handicapped by Commerce Clause regulation. [ Footnote 21 ] IV This analysis makes clear that Congress' action in affording
SAMTA employees the protections of the wage and hour Page 469 U. S. 556 provisions of the FLSA contravened no affirmative limit on
Congress' power under the Commerce Clause. The judgment of the
District Court therefore must be reversed.

															Of course, we continue to recognize that the States occupy a
special and specific position in our constitutional system, and
that the scope of Congress' authority under the Commerce Clause
must reflect that position. But the principal and basic limit on
the federal commerce power is that inherent in all congressional
action -- the built-in restraints that our system provides through
state participation in federal governmental action. The political
process ensures that laws that unduly burden the States will not be
promulgated. In the factual setting of these cases, the internal
safeguards of the political process have performed as intended.

															These cases do not require us to identify or define what
affirmative limits the constitutional structure might impose on
federal action affecting the States under the Commerce Clause. See Coyle v. Oklahoma, 221 U. S. 559 (1911). We note and accept Justice Frankfurter's observation in New York v. United States, 326 U.
S. 572 , 326 U. S. 583 (1946):

															"The process of Constitutional adjudication does not thrive on
conjuring up horrible possibilities that never happen in the real
world and devising doctrines sufficiently comprehensive in detail
to cover the remotest contingency. Nor need we go beyond what is
required for a reasoned disposition of the kind of controversy now
before the Court."

															Though the separate concurrence providing the fifth vote in National League of Cities was "not untroubled by certain
possible implications" of the decision, 426 U.S. at 426 U. S. 856 ,
the Court in that case attempted to articulate affirmative limits
on the Commerce Clause power in terms of core governmental
functions and fundamental attributes of state sovereignty. But the
model of democratic decisionmaking the Page 469 U. S. 557 Court there identified underestimated, in our view, the
solicitude of the national political process for the continued
vitality of the States. Attempts by other courts since then to draw
guidance from this model have proved it both impracticable and
doctrinally barren. In sum, in National League of Cities, the Court tried to repair what did not need repair.

															We do not lightly overrule recent precedent. [ Footnote 22 ] We have not hesitated,
however, when it has become apparent that a prior decision has
departed from a proper understanding of congressional power under
the Commerce Clause. See United States v. Darby, 312 U. S. 100 , 312 U. S.
116 -117 (1941). Due respect for the reach of
congressional power within the federal system mandates that we do
so now. National League of Cities v. Usery, 426 U.
S. 833 (1976), is overruled. The judgment of the
District Court is reversed, and these cases are remanded to that
court for further proceedings consistent with this opinion. It is so ordered. * Together with No. 82-1951, Donovan, Secretary of Labor v.
San Antonio Metropolitan Transit Authority et al., also on
appeal from the same court.

															[ Footnote 1 ] See Dove v. Chattanooga Area Regional Transportation
Authority, 701 F.2d 50 (CA6 1983), cert. pending sub nom.
City of Macon v. Joiner, No. 82-1974; Alewine v. City
Council of Augusta, Ga., 699 F.2d 1060 (CA11 1983), cert.
pending, No. 83-257; Kramer v. New Castle Area Transit
Authority, 677 F.2d 308 (CA3 1982), cert. denied, 459
U.S. 1146 (1983); Francis v. City of Tallahassee, 424 So.
2d 61 (Fla.App.1982).

															[ Footnote 2 ]

															Urban Mass Transportation: Hearings on H.R. 6663 et al. before the Subcommittee on Housing of the House Committee on
Banking and Currency, 91st Cong., 2d Sess., 419 (190) (statement of
F. Norman Hill).

															[ Footnote 3 ]

															Neither SATS nor SAMTA appears to have attempted to avoid the
FLSA's minimum wage provisions. We are informed that basic wage
levels in the mass transit industry traditionally have been well in
excess of the minimum wages prescribed by the FLSA. See Brief for National League of Cities et al. as Amici Curiae 7-8.

															[ Footnote 4 ]

															The District Court also analyzed the status of mass transit
under the four-part test devised by the Sixth Circuit in Amersbach v. City of Cleveland, 598 F.2d 1033 (1979). In
that case, the Court of Appeals looked to (1) whether the function
benefits the community as a whole and is made available at little
or no expense; (2) whether it is undertaken for public service or
pecuniary gain; (3) whether government is its principal provider;
and (4) whether government is particularly suited to perform it
because of a community-wide need. Id. at 1037.

															[ Footnote 5 ] See also however, Jefferson County Pharmaceutical
Assn. v. Abbott Laboratories, 460 U.
S. 150 , 460 U. S. 154 ,
n. 6 (1983); FERC v. Mississippi, 456 U.
S. 742 , 456 U. S. 781 ,
and n. 7 (1982) (opinion concurring in judgment in part and
dissenting in part); Fry v. United States, 421 U.
S. 542 , 421 U. S. 558 ,
and n. 2 (1975) (dissenting opinion).

															[ Footnote 6 ]

															See Flint v. Stone Tracy Co., 220 U.
S. 107 , 220 U. S. 172 (1911) ("essential"); Helvering v. Therrell, 303 U.
S. 218 , 303 U. S. 225 (1938) (same); Helvering v. Powers, 293 U.
S. 214 , 293 U. S. 225 (1934) ("usual"); United States v. California, 297 U. S. 175 , 297 U. S. 185 (1936) ("activities in which the states have traditionally
engaged"); South Carolina v. United States, 199 U.
S. 437 , 199 U. S. 461 (1905) ("strictly governmental").

															[ Footnote 7 ]

															In South Carolina, the Court relied on the concept of
"strictly governmental" functions to uphold the application of a
federal liquor license tax to a state-owned liquor distribution
monopoly. In Flint, the Court stated:

															"The true distinction is between . . . those operations of the
States essential to the execution of its [ sic ]
governmental functions, and which the State can only do itself, and
those activities which are of a private character;"

															under this standard,

															"[i]t is no part of the essential governmental functions of a
State to provide means of transportation, supply artificial light,
water and the like."

															220 U.S. at 220 U. S. 172 .
In Ohio v. Helvering, 292 U. S. 360 (1934), another case involving a state liquor distribution
monopoly, the Court stated that "the business of buying and selling
commodities . . . is not the performance of a governmental
function," and that,

															"[w]hen a state enters the marketplace seeking customers, it
divests itself of its quasi sovereignty pro
tanto, and takes on the character of a trader, so far, at
least, as the taxing power of the federal government is
concerned." Id. at 292 U. S. 369 .
In Powers, the Court upheld the application of the federal
income tax to the income of trustees of a state-operated commuter
railroad; the Court reiterated that

															"the State cannot withdraw sources of revenue from the federal
taxing power by engaging in businesses which constitute a departure
from usual governmental functions and to which, by reason of their
nature, the federal taxing power would normally extend,"

															regardless of the fact that the proprietary enterprises "are
undertaken for what the State conceives to be the public benefit."
293 U.S. at 293 U. S. 225 . Accord, Allen v. Regents, 304 U.
S. 439 , 304 U. S.
451 -453 (1938).

															[ Footnote 8 ]

															That concern was especially weighty in South Carolina because liquor taxes, the object of the dispute in that case, then
accounted for over one-fourth of the Federal Government's revenues. See New York v. United States, 326 U.
S. 572 , 326 U. S. 598 ,
n. 4 (1946) (dissenting opinion).

															[ Footnote 9 ]

															Indeed, the "traditional" nature of a particular governmental
function can be a matter of historical nearsightedness; today's
self-evidently "traditional" function is often yesterday's suspect
innovation. Thus, National League of Cities offered the
provision of public parks and recreation as an example of a
traditional governmental function. 426 U.S. at 426 U. S. 851 .
A scant 80 years earlier, however, in Shoemaker v. United
States, 147 U. S. 282 (1893), the Court pointed out that city commons originally had been
provided not for recreation, but for grazing domestic animals "in
common," and that,

															"[i]n the memory of men now living, a proposition to take
private property [by eminent domain] for a public park . . . would
have been regarded as a novel exercise of legislative power." Id. at 147 U. S.
297 .

															[ Footnote 10 ]

															For much the same reasons, the existence vel non of a
tradition of federal involvement in a particular area does
not provide an adequate standard for state immunity. Most of the
Federal Government's current regulatory activity originated less
than 50 years ago with the New Deal, and a good portion of it has
developed within the past two decades. The recent vintage of this
regulatory activity does not diminish the strength of the federal
interest in applying regulatory standards to state activities, nor
does it affect the strength of the States' interest in being free
from federal supervision. Although the Court's intergovernmental
tax immunity decisions ostensibly have subjected particular state
activities to federal taxation because those activities "ha[ve]
been traditionally within [federal taxing] power from the
beginning," New York v. United States, 326 U.S. at 326 U. S. 588 (Stone, C.J., concurring, joined by Reed, Murphy, and Burton, JJ.),
the Court has not in fact required federal taxes to have long
historical records in order to be effective. The income tax at
issue in Powers, supra, took effect less than a decade
before the tax years for which it was challenged, while the federal
tax whose application was upheld in New York v. United
States took effect in 1932 and was rescinded less than two
years later. See Helvering v. Powers, 293 U.S. at 293 U. S. 222 ;
Rakestraw, The Reciprocal Rule of Governmental Tax Immunity -- A
Legal Myth, 11 Fed.Bar J. 3, 34, n. 116 (1950).

															[ Footnote 11 ] See, e.g., J. Choper, Judicial Review and the National
Political Process 175-184 (1980); Wechsler, The Political
Safeguards of Federalism: The Role of the States in the Composition
and Selection of the National Government, 54 Colum.L.Rev. 543
(1954); La Pierre, The Political Safeguards of Federalism Redux:
Intergovernmental Immunity and the States as Agents of the Nation,
60 Wash.U.L.Q. 779 (1982).

															[ Footnote 12 ] See, e.g., A. Howitt, Managing Federalism: Studies in
Intergovernmental Relations 3-18 (1984); Break, Fiscal Federalism
in the United States: The First 200 Years, Evolution and Outlook,
in Advisory Commission on Intergovernmental Relations, The Future
of Federalism in the 1980s, pp. 39-54 (July 1981).

															[ Footnote 13 ]

															A. Howitt, supra, at 8; Bureau of the Census, U.S.
Dept. of Commerce, Bureau of the Census, Federal Expenditures by
State for Fiscal Year 1983, p. 2 (1984) (Census, Federal
Expenditures); Division of Government Accounts and Reports, Fiscal
Service -- Bureau of Government Financial Operations, Dept. of the
Treasury, Federal Aid to States: Fiscal Year 1982, p. 1 (1983 rev.
ed.).

															[ Footnote 14 ]

															Advisory Commission on Intergovernmental Relations, Significant
Features of Fiscal Federalism 120, 122 (1984).

															[ Footnote 15 ] See, e.g., the Federal Fire Prevention and Control Act
of 1974, 88 Stat. 1535, as amended, 15 U.S.C. § 2201 et
seq.; the Urban Park and Recreation Recovery Act of 1978, 92
Stat. 3538, 16 U.S.C. § 2501 et seq.; the Elementary and
Secondary Education Act of 1965, 79 Stat. 27, as amended, 20 U.S.C.
§ 2701 et seq.; the Water Pollution Control Act, 62 Stat.
1155, as amended, 33 U.S.C. § 1251 et seq.; the Public
Health Service Act, 58 Stat. 682, as amended, 42 U.S.C. § 201 et seq.; the Safe Drinking Water Act, 88 Stat. 1660, as
amended, 42 U.S.C. § 30Of et seq.; the Omnibus Crime
Control and Safe Streets Act of 1968, 82 Stat.197, as amended, 42
U.S.C. § 3701 et seq.; the Housing and Community
Development Act of 1974, 88 Stat. 633, as amended, 42 U.S.C. § 5301 et seq.; and the Juvenile Justice and Delinquency
Prevention Act of 1974, 88 Stat. 1109, as amended, 42 U.S.C. § 5601 et seq. See also Census, Federal Expenditures
2-15.

															[ Footnote 16 ] See 16 U.S.C. § 824(f); 29 U.S.C. § 152(2); 29 U.S.C. §
402(e); 29 U.S.C. § 652(5); 29 U.S.C. §§ 1003(b)(1), 1002(32); and Parker v. Brown, 317 U. S. 341 (1943).

															[ Footnote 17 ]

															Even as regards the FLSA, Congress incorporated special
provisions concerning overtime pay for law enforcement and
firefighting personnel when it amended the FLSA in 1974 in order to
take account of the special concerns of States and localities with
respect to these positions. See 29 U.S.C. § 207(k).
Congress also declined to impose any obligations on state and local
governments with respect to policymaking personnel who are not
subject to civil service laws. See 29 U.S.C. §§
203(e)(2)(C)(i) and (ii).

															[ Footnote 18 ] See, e.g., Choper, supra, at 177-178; Kaden,
Politics, Money, and State Sovereignty: The Judicial Role, 79
Colum.L.Rev. 847, 860-868 (1979).

															[ Footnote 19 ] See Department of Transportation and Related Agencies
Appropriations for 1983: Hearings before a Subcommittee of the
House Committee on Appropriations, 97th Cong., 2d Sess., pt. 4, p.
808 (1982) (fiscal years 1965-1982); Census, Federal Expenditures
15 (fiscal year 1983).

															[ Footnote 20 ] Ibid. [ Footnote 21 ]

															Our references to UMTA are not meant to imply that regulation
under the Commerce Clause must be accompanied by countervailing
financial benefits under the Spending Clause. The application of
the FLSA to SAMTA would be constitutional even had Congress not
provided federal funding under UMTA.

															[ Footnote 22 ] But see United States v. Scott, 437 U. S.
82 , 437 U. S. 86 -87
(1978).

															JUSTICE POWELL, with whom THE CHIEF JUSTICE, JUSTICE REHNQUIST,
and JUSTICE O'CONNOR join, dissenting.

															The Court today, in its 5-4 decision, overrules National
League of Cities v. Usery, 426 U. S. 833 (1976), a case in which we held that Congress lacked authority to
impose the requirements of the Fair Labor Standards Act on state
and local governments. Because I believe this decision
substantially alters the federal system embodied in the
Constitution, I dissent. I There are, of course, numerous examples over the history of this
Court in which prior decisions have been reconsidered and
overruled. There have been few cases, however, in which the
principle of stare decisis and the rationale of recent Page 469 U. S. 558 decisions were ignored as abruptly as we now witness. [ Footnote 2/1 ] The reasoning of the Court in National League of Cities, and the principle applied
there, have been reiterated consistently over the past eight years.
Since its decision in 1976, National League of Cities has
been cited and quoted in opinions joined by every Member of the
present Court. Hodel v. Virginia Surface Mining & Recl.
Assn., 452 U. S. 264 , 452 U. S.
287 -293 (1981); Transportation Union v. Long Island
R. Co., 455 U. S. 678 , 455 U. S.
684 -686 (1982); FERC v. Mississippi, 456 U. S. 742 , 456 U. S.
764 -767 (1982). Less than three years ago, in Long
Island R. Co., supra, a unanimous Court reaffirmed the
principles of National League of Cities but found them
inapplicable to the regulation of a railroad heavily engaged in
interstate commerce. The Court stated:

															"The key prong of the National League of Cities test
applicable to this case is the third one [repeated and reformulated
in Hodel ], which examines whether "the States' compliance
with the federal law would directly impair their ability to
structure integral operations in areas of traditional governmental
functions.'"" 455 U.S. at 455 U. S.
684 .

															The Court in that case recognized that the test "may at times be
a difficult one," ibid., but it was considered in that
unanimous decision as settled constitutional doctrine.

															As recently as June 1, 1982, the five Justices who constitute
the majority in these cases also were the majority in FERC v.
Mississippi. In that case, the Court said:

															"In National League of Cities v. Usery, supra, for
example, the Court made clear that the State's regulation of its
relationship with its employees is an 'undoubted attribute of state
sovereignty.' 426 U.S. at 426 U. S. 845 . Yet, Page 469 U. S. 559 by holding 'unimpaired' California v. Taylor, 353 U. S.
553 (1957), which upheld a federal labor regulation as
applied to state railroad employees, 426 U.S. at 426 U. S.
854 , n. 18, National League of Cities acknowledged that not all aspects of a State's sovereign authority
are immune from federal control."

															456 U.S. at 456 U. S. 764 ,
n. 28.

															The Court went on to say that, even where the requirements of
the National League of Cities standard are met,
" [t]here are situations in which the nature of the federal
interest advanced may be such that it justifies state submission.'" Ibid., quoting Hodel, supra, at 452 U. S. 288 ,
n. 29. The joint federal/state system of regulation in FERC was
such a "situation," but there was no hint in the Court's opinion
that National League of Cities -- or its basic standard --
was subject to the infirmities discovered today. Although the doctrine is not rigidly applied to constitutional
questions, "any departure from the doctrine of stare
decisis demands special justification." Arizona v.
Rumsey, 467 U. S. 203 , 467 U. S. 212 (1984). See also Oregon v. Kennedy, 456 U.
S. 667 , 456 U. S.
691 -692, n. 34 (1982) (STEVENS, J., concurring in
judgment). In the present cases, the five Justices who compose the
majority today participated in National League of Cities and the cases reaffirming it. [ Footnote
2/2 ] The stability of judicial decision, and with it respect
for the authority of this Court, are not served by the precipitate
overruling of multiple precedents that we witness in these cases.
[ Footnote 2/3 ]

															Whatever effect the Court's decision may have in weakening the
application of stare decisis, it is likely to be less Page 469 U. S. 560 important than what the Court has done to the Constitution
itself. A unique feature of the United States is the federal system
of government guaranteed by the Constitution and implicit in the
very name of our country. Despite some genuflecting in the Court's
opinion to the concept of federalism, today's decision effectively
reduces the Tenth Amendment to meaningless rhetoric when Congress
acts pursuant to the Commerce Clause. The Court holds that the Fair
Labor Standards Act (FLSA) "contravened no affirmative limit on
Congress' power under the Commerce Clause" to determine the wage
rates and hours of employment of all state and local employees. Ante at 469 U. S. 556 .
In rejecting the traditional view of our federal system, the Court
states:

															"Apart from the limitation on federal authority inherent in the
delegated nature of Congress' Article I powers, the principal means
chosen by the Framers to ensure the role of the States in the
federal system lies in the structure of the Federal
Government itself." Ante at 469 U. S. 550 (emphasis added).

															To leave no doubt about its intention, the Court renounces its
decision in National League of Cities because it

															"inevitably invites an unelected federal judiciary to make
decisions about which state policies its favors and which ones it
dislikes." Ante at 469 U. S. 546 .
In other words, the extent to which the States may exercise their
authority, when Congress purports to act under the Commerce Clause,
henceforth is to be determined from time to time by political
decisions made by members of the Federal Government, decisions the
Court says will not be subject to judicial review. I note that it
does not seem to have occurred to the Court that it -- an
unelected majority of five Justices -- today rejects almost 200
years of the understanding of the constitutional status of
federalism. In doing so, there is only a single passing reference
to the Tenth Amendment. Nor is so much as a dictum of any court
cited in support of the view that the role of the States in the
federal system may depend upon Page 469 U. S. 561 the grace of elected federal officials, rather than on the
Constitution as interpreted by this Court.

															In my opinion that follows, Part II addresses the Court's
criticisms of National League of Cities. 469 U.
S. until today, has recognized that the States retain a
significant measure of sovereignty in our federal system. 469 U. S. II The Court finds that the test of state immunity approved in National League of Cities and its progeny is unworkable
and unsound in principle. In finding the test to be unworkable, the
Court begins by mischaracterizing National League of
Cities and subsequent cases. In concluding that efforts to
define state immunity are unsound in principle, the Court radically
departs from long-settled constitutional values and ignores the
role of judicial review in our system of government. A Much of the Court's opinion is devoted to arguing that it is
difficult to define a priori "traditional governmental
functions." National League of Cities neither engaged in,
nor required, such a task. [ Footnote
2/4 ] The Court discusses and condemns Page 469 U. S. 562 as standards "traditional governmental functions," "purely
historical" functions, " uniquely' governmental functions," and
"`necessary' governmental services." Ante at 469 U. S. 539 , 469 U. S. 543 , 469 U. S. 545 .
But nowhere does it mention that National League of Cities adopted a familiar type of balancing test for determining whether
Commerce Clause enactments transgress constitutional limitations
imposed by the federal nature of our system of government. This
omission is noteworthy, since the author of today's opinion joined National League of Cities and concurred separately to
point out that the Court's opinion in that case "adopt[s] a balancing approach [that] does not outlaw federal
power in areas . . . where the federal interest is demonstrably
greater, and where state . . . compliance with imposed federal
standards would be essential."

															426 U.S. at 426 U. S. 856 (BLACKMUN, J., concurring).

															In reading National League of Cities to embrace a
balancing approach, JUSTICE BLACKMUN quite correctly cited the part
of the opinion that reaffirmed Fry v. United States, 421 U. S. 542 (1975). The Court's analysis reaffirming Fry explicitly
weighed the seriousness of the problem addressed by the federal
legislation at issue in that case against the effects of compliance
on state sovereignty. 426 U.S. at 426 U. S.
852 -853. Our subsequent decisions also adopted this
approach of weighing the respective interests of the States and
Federal Page 469 U. S. 563 Government. [ Footnote 2/5 ] In EEOC v. Wyoming, 460 U. S. 226 (1983), for example, the Court stated that

															"[t]he principle of immunity articulated in National League
of Cities is a functional doctrine . . . whose ultimate
purpose is not to create a sacred province of state autonomy, but
to ensure that the unique benefits of a federal system . . . not be
lost through undue federal interference in certain core state
functions." Id. at 460 U. S. 236 . See also Hodel v. Virginia Surface Mining & Recl.
Assn., 452 U. S. 264 (1981). In overruling National League of Cities, the Court
incorrectly characterizes the mode of analysis established therein
and developed in subsequent cases. [ Footnote 2/6 ] Page 469 U. S. 564 Moreover, the statute at issue in this case, the FLSA, is the
identical statute that was at issue in National League of
Cities. Although JUSTICE BLACKMUN's concurrence noted that he
was "not untroubled by certain possible implications of the Court's
opinion" in National League of Cities, it also stated that
"the result with respect to the statute under challenge here [the
FLSA] is necessarily correct. " 426 U.S. at 426 U. S. 856 (emphasis added). His opinion for the Court today does not discuss
the statute, nor identify any changed circumstances that warrant
the conclusion today that National League of Cities is necessarily wrong. B Today's opinion does not explain how the States' role in the
electoral process guarantees that particular exercises of the
Commerce Clause power will not infringe on residual state
sovereignty. [ Footnote 2/7 ] Members
of Congress are elected from the various States, but once in
office, they are Members of the Page 469 U. S. 565 Federal Government. [ Footnote
2/8 ] Although the States participate in the Electoral College,
this is hardly a reason to view the President as a representative
of the States' interest against federal encroachment. We noted
recently "[t]he hydraulic pressure inherent within each of the
separate Branches to exceed the outer limits of its power. . . ." INS v. Chadha, 462 U. S. 919 , 462 U. S. 951 (1983). The Court offers no reason to think that this pressure will
not operate when Congress seeks to invoke its powers under the
Commerce Clause, notwithstanding the electoral role of the States.
[ Footnote 2/9 ] Page 469 U. S. 566 The Court apparently thinks that the States' success at
obtaining federal funds for various projects and exemptions from
the obligations of some federal statutes is indicative of the
"effectiveness of the federal political process in preserving the
States' interests. . . ." Ante at 469 U. S. 552 .
[ Footnote 2/10 ] But such
political success is not relevant to the question whether the
political processes are the proper means of enforcing
constitutional limitations. [ Footnote
2/11 ] The fact that Congress generally Page 469 U. S. 567 does not transgress constitutional limits on its power to reach
state activities does not make judicial review any less necessary
to rectify the cases in which it does do so. [ Footnote 2/12 ] The States' role in our system of
government is a matter of constitutional law, not of legislative
grace.

															"The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved to
the States, respectively, or to the people."

															U.S.Const., Amdt. 10.

															More troubling than the logical infirmities in the Court's
reasoning is the result of its holding, i.e., that federal
political officials, invoking the Commerce Clause, are the sole
judges of the limits of their own power. This result is
inconsistent with the fundamental principles of our constitutional
system. See, e.g., The Federalist No. 78 (Hamilton). At
least since Marbury v.
Madison , 1 Cranch 137, 5 U. S. 177 (1803), it has been the settled province of the federal judiciary
"to say what the law is" with respect to the constitutionality of
Acts of Congress. In rejecting the role of the judiciary in
protecting the States from federal overreaching, the Court's
opinion offers no explanation for ignoring the teaching of the most
famous case in our history. [ Footnote
2/13 ] Page 469 U. S. 568 III A In our federal system, the States have a major role that cannot
be preempted by the National Government. As contemporaneous
writings and the debates at the ratifying conventions make clear,
the States' ratification of the Constitution was predicated on this
understanding of federalism. Indeed, the Tenth Amendment was
adopted specifically to ensure that the important role promised the
States by the proponents of the Constitution was realized.

															Much of the initial opposition to the Constitution was rooted in
the fear that the National Government would be too powerful, and
eventually would eliminate the States as viable political entities.
This concern was voiced repeatedly until proponents of the
Constitution made assurances that a Bill of Rights, including a
provision explicitly reserving powers in the States, would be among
the first business of the new Congress. Samuel Adams argued, for
example, that, if the several States were to be joined in

															"one entire Nation, under one Legislature, the Powers of which
shall extend to every Subject of Legislation, and its Laws be
supreme & controul the whole, the Idea of Sovereignty in these
States must be lost."

															Letter from Samuel Adams to Richard Henry Lee (Dec. 3, 1787),
reprinted in Anti-Federalists versus Federalists Page 469 U. S. 569 159 (J. Lewis ed.1967). Likewise, George Mason feared that,

															"the general government being paramount to, and in every respect
more powerful than the state governments, the latter must give way
to the former."

															Address in the Ratifying Convention of Virginia (June 4-12,
1788), reprinted in Anti-Federalists versus Federalists, supra, at 208-209.

															Antifederalists raised these concerns in almost every state
ratifying convention. [ Footnote
2/14 ] See generally 1-4 Debates in the Several State
Conventions on the Adoption of the Federal Constitution (J. Elliot
2d. ed. 1876). As a result, eight States voted for the Constitution
only after proposing amendments to be adopted after ratification.
[ Footnote 2/15 ] All eight of
these included among their recommendations some version of what
later became the Tenth Amendment. Ibid. So strong was the
concern that the proposed Constitution was seriously defective
without a specific bill of rights, including a provision reserving
powers to the States, that. in order to secure the votes for
ratification, the Federalists eventually conceded that such
provisions were necessary. See 1 B. Schwartz, The Bill of
Rights: A Documentary History 505 and passim (1971). It
was thus generally agreed that consideration of a bill of rights
would be among the first business of the new Congress. See
generally 1 Annals of Cong. 432-437 (1789) (remarks of James
Madison). Accordingly, the 10 Amendments that we know as the Bill
of Rights were proposed and adopted early in the first session of
the First Congress. 2 Schwartz, The Bill of Rights, supra, at 983-1167. Page 469 U. S. 570 This history, which the Court simply ignores, documents the
integral role of the Tenth Amendment in our constitutional theory.
It exposes as well, I believe, the fundamental character of the
Court's error today. Far from being "unsound in principle," ante at 469 U. S. 546 ,
judicial enforcement of the Tenth Amendment is essential to
maintaining the federal system so carefully designed by the Framers
and adopted in the Constitution. B The Framers had definite ideas about the nature of the
Constitution's division of authority between the Federal and State
Governments. In The Federalist No. 39, for example, Madison
explained this division by drawing a series of contrasts between
the attributes of a "national" government and those of the
government to be established by the Constitution. While a national
form of government would possess an "indefinite supremacy over all
persons and things," the form of government contemplated by the
Constitution instead consisted of

															"local or municipal authorities [which] form distinct and
independent portions of the supremacy, no more subject within their
respective spheres to the general authority, than the general
authority is subject to them, within its own sphere." Id. at 256 (J. Cooke ed.1961). Under the Constitution,
the sphere of the proposed government extended to jurisdiction of
"certain enumerated objects only, . . . leav[ing] to the several
States a residuary and inviolable sovereignty over all other
objects." Ibid. Madison elaborated on the content of these separate spheres of
sovereignty in The Federalist No. 45:

															"The powers delegated by the proposed Constitution to the
Federal Government are few and defined. Those which are to remain
in the State Governments are numerous and indefinite. The former
will be exercised principally on external objects, as war, peace,
negociation, and foreign commerce. . . . The powers Page 469 U. S. 571 reserved to the several States will extend to all the objects,
which, in the ordinary course of affairs, concern the lives,
liberties and properties of the people and the internal order,
improvement, and prosperity of the State." Id. at 313 (J. Cooke ed.1961).

															Madison considered that the operations of the Federal Government
would be "most extensive and important in times of war and danger;
those of the State Governments in times of peace and security." Ibid. As a result of this division of powers, the state
governments generally would be more important than the Federal
Government. Ibid. The Framers believed that the separate sphere of sovereignty
reserved to the States would ensure that the States would serve as
an effective "counterpoise" to the power of the Federal Government.
The States would serve this essential role because they would
attract and retain the loyalty of their citizens. The roots of such
loyalty, the Founders thought, were found in the objects peculiar
to state government. For example, Hamilton argued that the States
"regulat[e] all those personal interests and familiar concerns to
which the sensibility of individuals is more immediately awake. . .
." The Federalist No. 17, p. 107 (J. Cooke ed.1961). Thus, he
maintained that the people would perceive the States as "the
immediate and visible guardian of life and property," a fact
which

															"contributes more than any other circumstance to impressing upon
the minds of the people affection, esteem and reverence towards the
government." Ibid. Madison took the same position, explaining that
"the people will be more familiarly and minutely conversant" with
the business of state governments, and

															"with the members of these, will a greater proportion of the
people have the ties of personal acquaintance and friendship, and
of family and party attachments. . . ."

															The Federalist No. 46, p. 316 (J. Cooke ed.1961). Like Hamilton,
Madison saw the States' involvement in the everyday concerns of the
people as the source of Page 469 U. S. 572 their citizens' loyalty. Ibid. See also Nagel,
Federalism as a Fundamental Value: National League of
Cities in Perspective, 1981 S.Ct.Rev. 81.

															Thus, the harm to the States that results from federal
overreaching under the Commerce Clause is not simply a matter of
dollars and cents. National League of Cities, 426 U.S. at 426 U. S.
846 -851. Nor is it a matter of the wisdom or folly of
certain policy choices. Cf. ante at 469 U. S. 546 .
Rather, by usurping functions traditionally performed by the
States, federal overreaching under the Commerce Clause undermines
the constitutionally mandated balance of power between the States
and the Federal Government, a balance designed to protect our
fundamental liberties. C The emasculation of the powers of the States that can result
from the Court's decision is predicated on the Commerce Clause as a
power "delegated to the United States" by the Constitution. The
relevant language states: "Congress shall have power . . . To
regulate Commerce with foreign Nations, and among the several
States, and with the Indian Tribes." Art. I, § 8, Cl. 3. Section 8
identifies a score of powers, listing the authority to lay taxes,
borrow money on the credit of the United States, pay its debts, and
provide for the common defense and the general welfare before its brief reference to "Commerce." It is clear from
the debates leading up to the adoption of the Constitution that the
commerce to be regulated was that which the States themselves
lacked the practical capability to regulate. See, e.g., 1
M. Farrand, The Records of the Federal Convention of 1787 (rev.
ed.1937); The Federalist Nos. 7, 11, 22, 42, 45. See also EEOC
v. Wyoming, 460 U. S. 226 , 460 U. S. 265 (1983) (POWELL, J., dissenting). Indeed, the language of the Clause
itself focuses on activities that only a National Government could
regulate: commerce with foreign nations and Indian tribes and
" among " the several States. Page 469 U. S. 573 To be sure, this Court has construed the Commerce Clause to
accommodate unanticipated changes over the past two centuries. As
these changes have occurred, the Court has had to decide whether
the Federal Government has exceeded its authority by regulating
activities beyond the capability of a single State to regulate or
beyond legitimate federal interests that outweighed the authority
and interests of the States. In so doing, however, the Court
properly has been mindful of the essential role of the States in
our federal system.

															The opinion for the Court in National League of Cities was faithful to history in its understanding of federalism. The
Court observed that

															"our federal system of government imposes definite limits upon
the authority of Congress to regulate the activities of States as
States by means of the commerce power."

															426 U.S. at 426 U. S. 842 .
The Tenth Amendment was invoked to prevent Congress from exercising
its " power in a fashion that impairs the States' integrity or
their ability to function effectively in a federal system.'" Id. at 426 U. S.
842 -843 (quoting Fry v. United States, 421 U.S.
at 421 U. S. 547 ,
n. 7). This Court has recognized repeatedly that state sovereignty is a
fundamental component of our system of government. More than a
century ago, in Lane County v.
Oregon , 7 Wall. 71 (1869), the Court stated that
the Constitution recognized "the necessary existence of the States,
and, within their proper spheres, the independent authority of the
States." It concluded, as Madison did, that this authority extended
to

															"nearly the whole charge of interior regulation . . . ; to [the
States] and to the people all powers not expressly delegated to the
national government are reserved." Id. at 74 U. S. 76 .
Recently, in Community Communications Co. v. Boulder, 455 U. S. 40 , 455 U. S. 53 (1982), the Court recognized that the state action exemption from
the antitrust laws was based on state sovereignty. Similarly, in Transportation Union v. Long Island R. Co., 455 U.S. at 455 U. S. 683 ,
although finding the Railway Labor Act applicable to a state-owned
railroad, the Page 469 U. S. 574 unanimous Court was careful to say that the States possess
constitutionally preserved sovereign powers.

															Again, in FERC v. Mississippi, 456 U.
S. 742 , 456 U. S. 752 (1982), in determining the constitutionality of the Public Utility
Regulatory Policies Act, the Court explicitly considered whether
the Act impinged on state sovereignty in violation of the Tenth
Amendment. These represent only a few of the many cases in which
the Court has recognized not only the role, but also the
importance, of state sovereignty. See also e.g., Fry v. United
States, supra; Metcalf & Eddy v. Mitchell, 269 U.
S. 514 (1926); Coyle v. Oklahoma, 221 U.
S. 559 (1911). As Justice Frankfurter noted, the States
are not merely a factor in the "shifting economic arrangements" of
our country, Kovacs v. Cooper, 336 U. S.
77 , 336 U. S. 95 (1949) (concurring), but also constitute a "coordinate element in
the system established by the Framers for governing our Federal
Union." National League of Cities, supra, at 426 U. S.
849 . D In contrast, the Court today propounds a view of federalism that
pays only lipservice to the role of the States. Although it says
that the States "unquestionably do retai[n] a significant
measure of sovereign authority,'" ante at 469 U. S. 549 (quoting EEOC v. Wyoming, supra, at 460 U. S. 269 (POWELL, J., dissenting)), it fails to recognize the broad, yet
specific areas of sovereignty that the Framers intended the States
to retain. Indeed, the Court barely acknowledges that the Tenth
Amendment exists. [ Footnote 2/16 ]
That Amendment states explicitly that "[t]he powers not delegated
to the United States . . . are reserved to the States." The Court
recasts this language to say that the States retain their sovereign
powers "only to the extent that the Constitution has not divested them
of their original powers and transferred those powers to the
Federal Page 469 U. S. 575 Government." Ante at 469 U. S. 549 .
This rephrasing is not a distinction without a difference; rather,
it reflects the Court's unprecedented view that Congress is free
under the Commerce Clause to assume a State's traditional sovereign
power, and to do so without judicial review of its action. Indeed,
the Court's view of federalism appears to relegate the States to
precisely the trivial role that opponents of the Constitution
feared they would occupy. [ Footnote
2/17 ]

															In National League of Cities, we spoke of fire
prevention, police protection, sanitation, and public health as

															"typical of [the services] performed by state and local
governments in discharging their dual functions of administering
the public law and furnishing public services."

															426 U.S. at 426 U. S. 851 .
Not only are these activities remote from any normal concept of
interstate commerce, they are also activities that epitomize the
concerns of local, democratic self-government. See 469
U.S. 528 fn2/5|>n. 5, supra. In emphasizing the need
to protect traditional governmental functions, we identified the
kinds of activities engaged in by state and local governments that
affect the everyday lives of citizens. These are services that
people are in a position to understand and evaluate, and in a
democracy, have the right to oversee. [ Footnote 2/18 ] We recognized that "it is Page 469 U. S. 576 functions such as these which governments are created to provide
. . ." and that the States and local governments are better able
than the National Government to perform them. 426 U.S. at 426 U. S.
851 .

															The Court maintains that the standard approved in National
League of Cities "disserves principles of democratic
self-governance." Ante at 469 U. S. 547 .
In reaching this conclusion, the Court looks myopically only to
persons elected to positions in the Federal Government. It
disregards entirely the far more effective role of democratic
self-government at the state and local levels. One must compare
realistically the operation of the state and local governments with
that of the Federal Government. Federal legislation is drafted
primarily by the staffs of the congressional committees. In view of
the hundreds of bills introduced at each session of Congress and
the complexity of many of them, it is virtually impossible for even
the most conscientious legislators to be truly familiar with many
of the statutes enacted. Federal departments and agencies
customarily are authorized to write regulations. Often these are
more important than the text of the statutes. As is true of the
original legislation, these are drafted largely by staff personnel.
The administration and enforcement of federal laws and regulations
necessarily are largely in the hands of staff and civil service
employees. These employees may have little or no knowledge of the
States and localities that will be affected by the statutes and
regulations for which they are responsible. In any case, they
hardly are as accessible and responsive Page 469 U. S. 577 as those who occupy analogous positions in state and local
governments.

															In drawing this contrast, I imply no criticism of these federal
employees or the officials who are ultimately in charge. The great
majority are conscientious and faithful to their duties. My point
is simply that members of the immense federal bureaucracy are not
elected, know less about the services traditionally rendered by
States and localities, and are inevitably less responsive to
recipients of such services, than are state legislatures, city
councils, boards of supervisors, and state and local commissions,
boards, and agencies. It is at these state and local levels -- not
in Washington, as the Court so mistakenly thinks -- that
"democratic self-government" is best exemplified. IV The question presented in these cases is whether the extension
of the FLSA to the wages and hours of employees of a city-owned
transit system unconstitutionally impinges on fundamental state
sovereignty. The Court's sweeping holding does far more than simply
answer this question in the negative. In overruling National
League of Cities, today's opinion apparently authorizes
federal control, under the auspices of the Commerce Clause, over
the terms and conditions of employment of all state and local
employees. Thus, for purposes of federal regulation, the Court
rejects the distinction between public and private employers that
had been drawn carefully in National League of Cities. The
Court's action reflects a serious misunderstanding, if not an
outright rejection, of the history of our country and the intention
of the Framers of the Constitution. [ Footnote 2/19 ] Page 469 U. S. 578 I return now to the balancing test approved in National
League of Cities and accepted in Hodel, Long Island R.
Co., and FERC v. Mississippi. See 469
U.S. 528 fn2/5|>n. 5, supra. The Court does not find
in these cases that the "federal interest is demonstrably greater."
426 U.S. at 426 U. S. 856 (BLACKMUN, J., concurring). No such finding could have been made,
for the state interest is compelling. The financial impact on
States and localities of displacing their control over wages,
hours, overtime regulations, pensions, and labor relations with
their employees could have serious, as well as unanticipated,
effects on state and local planning, budgeting, and the levying of
taxes. [ Footnote 2/20 ] As we said
in National League of Cities, federal control of the terms
and conditions of employment of state employees also inevitably

															"displaces state policies regarding the manner in which [States]
will structure delivery of those governmental services that
citizens require." Id. at 426 U. S. 847 .
The Court emphasizes that municipal operation of an intracity mass
transit system is relatively new in the life of our country. It
nevertheless is a classic example of the type of service
traditionally provided by local government. It is local by
definition. It is indistinguishable in principle from the
traditional services of providing and maintaining streets, public
lighting, traffic control, water, and sewerage systems. [ Footnote 2/21 ] Services of this kind are
precisely those with which citizens are more "familiarly and
minutely conversant." The Federalist No. 46, p. 316 (J. Cooke
ed.1961). State and local officials, of course, must be intimately
familiar with these services and sensitive to their quality as well
as cost. Such Page 469 U. S. 579 officials also know that their constituents and the press
respond to the adequacy, fair distribution, and cost of these
services. It is this kind of state and local control and
accountability that the Framers understood would insure the
vitality and preservation of the federal system that the
Constitution explicitly requires. See National League of
Cities, 426 U.S. at 426 U. S.
847 -852. V Although the Court's opinion purports to recognize that the
States retain some sovereign power, it does not identify even a
single aspect of state authority that would remain when the
Commerce Clause is invoked to justify federal regulation. In Maryland v. Wirtz, 392 U. S. 183 (1968), overruled by National League of Cities and today
reaffirmed, the Court sustained an extension of the FLSA to certain
hospitals, institutions, and schools. Although the Court's opinion
in Wirtz was comparatively narrow, Justice Douglas, in
dissent, wrote presciently that the Court's reading of the Commerce
Clause would enable

															"the National Government [to] devour the essentials of state
sovereignty, though that sovereignty is attested by the Tenth
Amendment."

															392 U.S. at 392 U. S. 205 .
Today's decision makes Justice Douglas' fear once again a realistic
one.

															As I view the Court's decision today as rejecting the basic
precepts of our federal system and limiting the constitutional role
of judicial review, I dissent.

															[ Footnote 2/1 ] National League of Cities, following some changes in
the composition of the Court, had overruled Maryland v.
Wirtz, 392 U. S. 183 (1968). Unlike National League of Cities, the rationale of Wirtz had not been repeatedly accepted by our subsequent
decisions.

															[ Footnote 2/2 ]

															JUSTICE O'CONNOR, the only new Member of the Court since our
decision in National League of Cities, has joined the
Court in reaffirming its principles. See Transportation Union
v. Long Island R. Co., 455 U. S. 678 (1982), and FERC v. Mississippi, 456 U.
S. 742 , 456 U. S. 775 (1982) (O'CONNOR, J., dissenting in part).

															[ Footnote 2/3 ]

															As one commentator noted, stare decisis represents "a
natural evolution from the very nature of our institutions." Lile,
Some Views on the Rule of Stare Decisis, 4 Va.L.Rev. 95,
97 (1916).

															[ Footnote 2/4 ]

															In National League of Cities, we referred to the sphere
of state sovereignty as including "traditional governmental
functions," a realm which is, of course, difficult to define with
precision. But the luxury of precise definitions is one rarely
enjoyed in interpreting and applying the general provisions of our
Constitution. Not surprisingly, therefore, the Court's attempt to
demonstrate the impossibility of definition is unhelpful. A number
of the cases it cites simply do not involve the problem of defining
governmental functions. E.g., Williams v. Eastside Mental
Health Center, Inc., 669 F.2d 671 (CA11), cert.
denied, 459 U.S. 976 (1982); Friends of the Earth v.
Carey, 552 F.2d 25 (CA2), cert. denied, 434 U.S. 902
(1977). A number of others are not properly analyzed under the
principles of National League of Cities, notwithstanding
some of the language of the lower courts. E.g., United States
v. Best, 573 F.2d 1095 (CA9 1978), and Hybud Equipment
Corp. v. City of Akron, 654 F.2d 1187 (CA6 1981). Moreover,
rather than carefully analyzing the case law, the Court simply
lists various functions thought to be protected or unprotected by
courts interpreting National League of Cities. Ante at 469 U. S.
538 -539. In the cited cases, however, the courts
considered the issue of state immunity on the specific facts at
issue; they did not make blanket pronouncements that particular
things inherently qualified as traditional governmental functions
or did not. Having thus considered the cases out of context, it was
not difficult for the Court to conclude that there is no
"organizing principle" among them. See ante at 469 U. S.
539 .

															[ Footnote 2/5 ]

															In undertaking such balancing, we have considered, on the one
hand, the strength of the federal interest in the challenged
legislation and the impact of exempting the States from its reach.
Central to our inquiry into the federal interest is how closely the
challenged action implicates the central concerns of the Commerce
Clause, viz., the promotion of a national economy and free
trade among the States. See EEOC v. Wyoming, 460 U.
S. 226 , 460 U. S. 244 (1983) (STEVENS, J., concurring). See also for example, Transportation Union v. Long Island R. Co., 455 U.
S. 678 , 455 U. S. 688 (1982) ("Congress long ago concluded that federal regulation of
railroad labor services is necessary to prevent disruptions in
vital rail service essential to the national economy"); FERC v.
Mississippi, 456 U. S. 742 , 456 U. S. 757 (1982) ("[I]t is difficult to conceive of a more basic element of
interstate commerce than electric energy . . . "). Similarly, we
have considered whether exempting States from federal regulation
would undermine the goals of the federal program. See Fry v.
United States, 421 U. S. 542 (1975). See also Hodel v. Virginia Surface Mining & Recl.
Assn., 452 U. S. 264 , 452 U. S. 282 (1981) (national surface mining standards necessary to insure
competition among States does not undermine States' efforts to
maintain adequate intrastate standards). On the other hand, we have
also assessed the injury done to the States if forced to comply
with federal Commerce Clause enactments. See National League of
Cities, 426 U.S. at 426 U. S.
846 -851.

															[ Footnote 2/6 ]

															In addition, reliance on the Court's difficulties in the tax
immunity field is misplaced. Although the Court has abandoned the
"governmental/proprietary" distinction in this field, see New
York v. United States, 326 U. S. 572 (1946), it has not taken the drastic approach of relying solely on
the structure of the Federal Government to protect the States'
immunity from taxation. See Massachusetts v. United
States, 435 U. S. 444 (1978). Thus, faced with an equally difficult problem of defining
constitutional boundaries of federal action directly affecting the
States, we did not adopt the view many would think naive, that the
Federal Government itself will protect whatever rights the
States may have.

															[ Footnote 2/7 ]

															Late in its opinion, the Court suggests that, after all, there
may be some "affirmative limits the constitutional structure might
impose on federal action affecting the States under the Commerce
Clause." Ante at 469 U. S. 556 .
The Court asserts that "[i]n the factual setting of these cases,
the internal safeguards of the political process have performed as
intended." Ibid. The Court does not explain the basis for
this judgment. Nor does it identify the circumstances in which the
"political process" may fail, and "affirmative limits" are to be
imposed. Presumably, such limits are to be determined by the
Judicial Branch, even though it is "unelected." Today's opinion,
however, has rejected the balancing standard, and suggests no other
standard that would enable a court to determine when there has been
a malfunction of the "political process." The Court's failure to
specify the "affirmative limits" on federal power, or when and how
these limits are to be determined, may well be explained by the
transparent fact that any such attempt would be subject to
precisely the same objections on which it relies to overrule National League of Cities. [ Footnote 2/8 ]

															One can hardly imagine this Court saying that, because Congress
is composed of individuals, individual rights guaranteed by the
Bill of Rights are amply protected by the political process. Yet
the position adopted today is indistinguishable in principle. The
Tenth Amendment also is an essential part of the Bill of Rights. See infra at 469 U. S.
568 -50.

															[ Footnote 2/9 ]

															At one time in our history, the view that the structure of the
Federal Government sufficed to protect the States might have had a
somewhat more practical, although not a more logical, basis.
Professor Wechsler, whose seminal article in 1954 proposed the view
adopted by the Court today, predicated his argument on assumptions
that simply do not accord with current reality. Professor Wechsler
wrote:

															"National action has . . . always been regarded as exceptional
in our polity, an intrusion to be justified by some necessity, the
special, rather than the ordinary, case."

															Wechsler, The Political Safeguards of Federalism: The Role of
the States in the Composition and Selection of the National
Government, 54 Colum.L.Rev. 543, 544 (1954). Not only is the
premise of this view clearly at odds with the proliferation of
national legislation over the past 30 years, but

															"a variety of structural and political changes occurring in this
century have combined to make Congress particularly insensitive to state and local values."

															Advisory Commission on Intergovernmental Relations (ACIR),
Regulatory Federalism: Policy, Process, Impact and Reform 50
(1984). The adoption of the Seventeenth Amendment (providing for
direct election of Senators), the weakening of political parties on
the local level, and the rise of national media, among other
things, have made Congress increasingly less representative of
state and local interests, and more likely to be responsive to the
demands of various national constituencies. Id. at 50-51.
As one observer explained:

															"As Senators and members of the House develop independent
constituencies among groups such as farmers, businessmen, laborers,
environmentalists, and the poor, each of which generally supports
certain national initiatives, their tendency to identify with state
interests and the positions of state officials is reduced."

															Kaden, Federalism in the Courts: Agenda for the 1980s, in ACIR,
The Future of Federalism in the 1980s, p. 97 (July 1981). See also Kaden, Politics, Money, and State Sovereignty:
The Judicial Role, 79 Colum.L.Rev. 847, 849 (1979) (changes in
political practices and the breadth of national initiatives mean
that the political branches "may no longer be as well suited as
they once were to the task of safeguarding the role of the states
in the federal system and protecting the fundamental values of
federalism"), and ACIR, Regulatory Federalism, supra, at
1-24 (detailing the "dramatic shift" in kind of federal regulation
applicable to the States over the past two decades). Thus, even if
one were to ignore the numerous problems with the Court's position
in terms of constitutional theory, there would remain serious
questions as to its factual premises.

															[ Footnote 2/10 ]

															The Court believes that the significant financial assistance
afforded the States and localities by the Federal Government is
relevant to the constitutionality of extending Commerce Clause
enactments to the States. See ante at 469 U. S.
552 -553, 469 U. S. 555 .
This Court has never held, however, that the mere disbursement of
funds by the Federal Government establishes a right to control
activities that benefit from such funds. See Pennhurst State
School and Hospital v. Halderman, 451 U. S.
1 , 451 U. S. 17 -18
(1981). Regardless of the willingness of the Federal Government to
provide federal aid, the constitutional question remains the same:
whether the federal statute violates the sovereign powers reserved
to the States by the Tenth Amendment.

															[ Footnote 2/11 ]

															Apparently in an effort to reassure the States, the Court
identifies several major statutes that thus far have not been made
applicable to state governments: the Federal Power Act, 16 U.S.C. §
824(f); the Labor Management Relations Act, 29 U.S.C. § 152(2); the
Labor-Management Reporting and Disclosure Act, 29 U.S.C. § 402(e);
the Occupational Safety and Health Act, 29 U.S.C. § 652(5); the
Employee Retirement Income Security Act, 29 U.S.C. §§ 1002(32),
1003(b)(1); and the Sherman Act, 15 U.S.C. § 1 et seq.; see
Parker v. Brown, 317 U. S. 341 (1943). Ante at 469 U. S. 553 .
The Court does not suggest that this restraint will continue after
its decision here. Indeed, it is unlikely that special interest
groups will fail to accept the Court's open invitation to urge
Congress to extend these and other statutes to apply to the States
and their local subdivisions.

															[ Footnote 2/12 ]

															This Court has never before abdicated responsibility for
assessing the constitutionality of challenged action on the ground
that affected parties theoretically are able to look out for their
own interests through the electoral process. As the Court noted in National League of Cities, a much stronger argument as to
inherent structural protections could have been made in either Buckley v. Valeo, 424 U. S. 1 (1976),
or Myers v. United States, 272 U. S.
52 (1926), than can be made here. In these cases, the
President signed legislation that limited his authority with
respect to certain appointments, and thus arguably "it was . . . no
concern of this Court that the law violated the Constitution." 426
U.S. at 426 U. S.
841 -842, n. 12. The Court nevertheless held the laws
unconstitutional because they infringed on Presidential authority,
the President's consent notwithstanding. The Court does not address
this point, nor does it cite any authority for its contrary
view.

															[ Footnote 2/13 ]

															The Court states that the decision in National League of
Cities "invites an unelected federal judiciary to make
decisions about which state policies it favors and which ones its
dislikes." Curiously, the Court then suggests that, under the
application of the "traditional" governmental function analysis,
"the States cannot serve as laboratories for social and economic
experiment." Ante at 469 U. S. 546 ,
citing Justice Brandeis' famous observation in New State Ice
Co. v. Liebmann, 285 U. S. 262 , 285 U. S. 311 (1932) (Brandeis, J., dissenting). Apparently the Court believes
that, when "an unelected federal judiciary" makes decisions as to
whether a particular function is one for the Federal or State
Governments, the States no longer may engage in "social and
economic experiment." Ante at 469 U. S. 546 .
The Court does not explain how leaving the States virtually at the
mercy of the Federal Government, without recourse to judicial
review, will enhance their opportunities to experiment and serve as
"laboratories."

															[ Footnote 2/14 ]

															Opponents of the Constitution were particularly dubious of the
Federalists' claim that the States retained powers not delegated to
the United States in the absence of an express provision so
providing. For example, James Winthrop wrote that "[i]t is a mere
fallacy . . . that what rights are not given are reserved." Letters
of Agrippa, reprinted in 1 B. Schwartz, The Bill of Rights: A
Documentary History 510, 511 (1971).

															[ Footnote 2/15 ]

															Indeed, the Virginia Legislature came very close to withholding
ratification of the Constitution until the adoption of a Bill of
Rights that included, among other things, the substance of the
Tenth Amendment. See 2 Schwartz, The Bill of Rights, supra, at 762-766 and passim. [ Footnote 2/16 ]

															The Court's opinion mentions the Tenth Amendment only once, when
it restates the question put to the parties for reargument in these
cases. See ante at 469 U. S.
536 .

															[ Footnote 2/17 ]

															As the amici argue,

															"the ability of the states to fulfill their role in the
constitutional scheme is dependent solely upon their effectiveness
as instruments of self-government."

															Brief for State of California et al. as Amici
Curiae 50. See also Brief for National League of
Cities et al. as Amici Curiae (a brief on behalf of
every major organization representing the concerns of state and
local governments).

															[ Footnote 2/18 ]

															The Framers recognized that the most effective democracy occurs
at local levels of government, where people with firsthand
knowledge of local problems have more ready access to public
officials responsible for dealing with them. E.g., The
Federalist No. 17, p. 107 (J. Cooke ed.1961); The Federalist No.
46, p. 316 (J. Cooke ed.1961). This is as true today as it was when
the Constitution was adopted.

															"Participation is likely to be more frequent, and exercised at
more different stages of a governmental activity at the local
level, or in regional organizations, than at the state and federal
levels. [Additionally,] the proportion of people actually involved
from the total population tends to be greater, the lower the level
of government, and this, of course, better approximates the citizen
participation ideal."

															ACIR, Citizen Participation in the American Federal System 95
(1980).

															Moreover, we have witnessed in recent years the rise of numerous
special interest groups that engage in sophisticated lobbying, and
make substantial campaign contributions to some Members of
Congress. These groups are thought to have significant influence in
the shaping and enactment of certain types of legislation. Contrary
to the Court's view, a "political process" that functions in this
way is unlikely to safeguard the sovereign rights of States and
localities. See 469
U.S. 528 fn2/9|>n. 9, supra. [ Footnote 2/19 ]

															The opinion of the Court in National League of Cities makes clear that the very essence of a federal system of government
is to impose "definite limits upon the authority of Congress to
regulate the activities of the States as States by means of the
commerce power." 426 U.S. at 426 U. S. 842 . See also the Court's opinion in Fry v. United
States, 421 U. S. 542 , 421 U. S. 547 ,
n. 7 (1975).

															[ Footnote 2/20 ]

															As Justice Douglas observed in his dissent in Maryland v.
Wirtz, 392 U.S. at 392 U. S. 203 ,
extension of the FLSA to the States could "disrupt the fiscal
policy of the States and threaten their autonomy in the regulation
of health and education."

															[ Footnote 2/21 ]

															In Long Island R. Co., the unanimous Court recognized
that

															"[t]his Court's emphasis on traditional governmental functions
and traditional aspects of state sovereignty was not meant to
impose a static historical view of state functions generally immune
from federal regulation."

															455 U.S. at 455 U. S.
686 .

															JUSTICE REHNQUIST, dissenting.

															I join both JUSTICE POWELL's and JUSTICE O'CONNOR's thoughtful
dissents. JUSTICE POWELL's reference to the "balancing test"
approved in National League of Cities is not identical
with the language in that case, which recognized that Congress
could not act under its commerce power to infringe on certain
fundamental aspects of state sovereignty that are essential to "the
States' separate and independent existence." Nor is either test, or
JUSTICE Page 469 U. S. 580 O'CONNOR's suggested approach, precisely congruent with JUSTICE
BLACKMUN's views in 1976, when he spoke of a balancing approach
which did not outlaw federal power in areas "where the federal
interest is demonstrably greater." But under any one of these
approaches, the judgment in these cases should be affirmed, and I
do not think it incumbent on those of us in dissent to spell out
further the fine points of a principle that will, I am confident,
in time again command the support of a majority of this Court.

															JUSTICE O'CONNOR, with whom JUSTICE POWELL and JUSTICE REHNQUIST
join, dissenting.

															The Court today surveys the battle scene of federalism and
sounds a retreat. Like JUSTICE POWELL, I would prefer to hold the
field and, at the very least, render a little aid to the wounded. I
join JUSTICE POWELL's opinion. I also write separately to note my
fundamental disagreement with the majority's views of federalism
and the duty of this Court.

															The Court overrules National League of Cities v. Usery, 426 U. S. 833 (1976), on the grounds that it is not "faithful to the role of
federalism in a democratic society." Ante at 469 U. S. 546 .
"The essence of our federal system," the Court concludes,

															"is that, within the realm of authority left open to them under
the Constitution, the States must be equally free to engage in any
activity that their citizens choose for the common weal. . . ." Ibid. National League of Cities is held to be
inconsistent with this narrow view of federalism because it
attempts to protect only those fundamental aspects of state
sovereignty that are essential to the States' separate and
independent existence, rather than protecting all state activities
"equally."

															In my view, federalism cannot be reduced to the weak "essence"
distilled by the majority today. There is more to federalism than
the nature of the constraints that can be imposed on the States in
"the realm of authority left open to them by the Constitution." The
central issue of federalism, Page 469 U. S. 581 of course, is whether any realm is left open to the States by
the Constitution -- whether any area remains in which a State may
act free of federal interference. "The issue . . . is whether the
federal system has any legal substance, any core of
constitutional right that courts will enforce." C. Black,
Perspectives in Constitutional Law 30 (1963). The true "essence" of
federalism is that the States, as States, have legitimate interests
which the National Government is bound to respect even though its
laws are supreme. Younger v. Harris, 401 U. S.
37 , 401 U. S. 44 (1971). If federalism so conceived and so carefully cultivated by
the Framers of our Constitution is to remain meaningful, this Court
cannot abdicate its constitutional responsibility to oversee the
Federal Government's compliance with its duty to respect the
legitimate interests of the States.

															Due to the emergence of an integrated and industrialized
national economy, this Court has been required to examine and
review a breathtaking expansion of the powers of Congress. In doing
so, the Court correctly perceived that the Framers of our
Constitution intended Congress to have sufficient power to address
national problems. But the Framers were not single-minded. The
Constitution is animated by an array of intentions. EEOC v.
Wyoming, 460 U. S. 226 , 460 U. S.
265 -266 (1983) (POWELL, J., dissenting). Just as surely
as the Framers envisioned a National Government capable of solving
national problems, they also envisioned a republic whose vitality
was assured by the diffusion of power not only among the branches
of the Federal Government, but also between the Federal Government
and the States. FERC v. Mississippi, 456 U.
S. 742 , 456 U. S. 790 (1982) (O'CONNOR, J., dissenting). In the 18th century, these
intentions did not conflict, because technology had not yet
converted every local problem into a national one. A conflict has
now emerged, and the Court today retreats rather than reconcile the
Constitution's dual concerns for federalism and an effective
commerce power. Page 469 U. S. 582 We would do well to recall the constitutional basis for
federalism and the development of the commerce power which has come
to displace it. The text of the Constitution does not define the
precise scope of state authority other than to specify, in the
Tenth Amendment, that the powers not delegated to the United States
by the Constitution are reserved to the States. In the view of the
Framers, however, this did not leave state authority weak or
defenseless; the powers delegated to the United States, after all,
were "few and defined." The Federalist No. 45, p. 313 (J. Cooke
ed.1961). The Framers' comments indicate that the sphere of state
activity was to be a significant one, as JUSTICE POWELL's opinion
clearly demonstrates, ante at 469 U. S.
570 -572. The States were to retain authority over those
local concerns of greatest relevance and importance to the people.
The Federalist No. 17, pp. 106-108 (J. Cooke ed.1961). This
division of authority, according to Madison, would produce
efficient government and protect the rights of the people:

															"In a single republic, all the power surrendered by the people
is submitted to the administration of a single government, and
usurpations are guarded against by a division of the government
into distinct and separate departments. In the compound republic of
America, the power surrendered by the people is first divided
between two distinct governments, and then the portion allotted to
each subdivided among distinct and separate departments. Hence, a
double security arises to the rights of the people. The different
governments will controul each other at the same time that each
will be controuled by itself."

															The Federalist No. 51, pp. 350351 (J. Cooke ed.1961). See Nagel, Federalism as a Fundamental Value: National
League of Cities in Perspective, 1981 S.Ct.Rev. 81, 88.

															Of course, one of the "few and defined" powers delegated to the
National Congress was the power "To regulate Commerce Page 469 U. S. 583 with foreign Nations, and among the several States, and with the
Indian Tribes." U.S.Const., Art. I, § 8, cl. 3. The Framers
perceived the interstate commerce power to be important but
limited, and expected that it would be used primarily, if not
exclusively, to remove interstate tariffs and to regulate maritime
affairs and large-scale mercantile enterprise. See Abel,
The Commerce Clause in the Constitutional Convention and in
Contemporary Comment, 25 Minn.L.Rev. 432 (1941). This perception of
a narrow commerce power is important not because it suggests that
the commerce power should be as narrowly construed today. Rather,
it explains why the Framers could believe the Constitution assured
significant state authority even as it bestowed a range of powers,
including the commerce power, on the Congress. In an era when
interstate commerce represented a tiny fraction of economic
activity and most goods and services were produced and consumed
close to home, the interstate commerce power left a broad range of
activities beyond the reach of Congress.

															In the decades since ratification of the Constitution,
interstate economic activity has steadily expanded.
Industrialization, coupled with advances in transportation and
communications, has created a national economy in which virtually
every activity occurring within the borders of a State plays a
part. The expansion and integration of the national economy brought
with it a coordinate expansion in the scope of national problems.
This Court has been increasingly generous in its interpretation of
the commerce power of Congress, primarily to assure that the
National Government would be able to deal with national economic
problems. Most significantly, the Court in NLRB v. Jones &
Laughlin Steel Corp., 301 U. S. 1 (1937),
and United States v. Darby, 312 U.
S. 100 (1941), rejected its previous interpretations of
the commerce power which had stymied New Deal legislation. Jones & Laughlin and Darby embraced the
notion that Congress can regulate intrastate activities that
affect Page 469 U. S. 584 interstate commerce as surely as it can regulate interstate
commerce directly. Subsequent decisions indicate that Congress, in
order to regulate an activity, needs only a rational basis for a
finding that the activity affects interstate commerce. See
Heart of Atlanta Motel, Inc. v. United States, 379 U.
S. 241 , 379 U. S. 258 (1964). Even if a particular individual's activity has no
perceptible interstate effect, it can be reached by Congress
through regulation of that class of activity in general as long as
that class, considered as a whole, affects interstate commerce. Fry v. United States, 421 U. S. 542 (1975); Perez v. United States, 402 U.
S. 146 (1971).

															Incidental to this expansion of the commerce power, Congress has
been given an ability it lacked prior to the emergence of an
integrated national economy. Because virtually every state
activity, like virtually every activity of a private individual,
arguably "affects" interstate commerce, Congress can now supplant
the States from the significant sphere of activities envisioned for
them by the Framers. It is in this context that recent changes in
the workings of Congress, such as the direct election of Senators
and the expanded influence of national interest groups, see
ante at 469 U. S. 544 ,
n. 9 (POWELL, J., dissenting), become relevant. These changes may
well have lessened the weight Congress gives to the legitimate
interests of States as States. As a result, there is now a real
risk that Congress will gradually erase the diffusion of power
between State and Nation on which the Framers based their faith in
the efficiency and vitality of our Republic.

															It would be erroneous, however, to conclude that the Supreme
Court was blind to the threat to federalism when it expanded the
commerce power. The Court based the expansion on the authority of
Congress, through the Necessary and Proper Clause, "to resort to
all means for the exercise of a granted power which are appropriate
and plainly adapted to the permitted end." United States v.
Darby, supra, at 312 U. S. 124 .
It is through this reasoning that an intrastate activity
"affecting" interstate commerce can be reached through the Page 469 U. S. 585 commerce power. Thus, in United States v. Wrightwood Dairy
Co., 315 U. S. 110 , 315 U. S. 119 (1942), the Court stated:

															"The commerce power is not confined in its exercise to the
regulation of commerce among the states. It extends to those
activities intrastate which so affect interstate commerce, or the
exertion of the power of Congress over it, as to make regulation of
them appropriate means to the attainment of a legitimate end, the
effective execution of the granted power to regulate interstate
commerce. See McCulloch v. Maryland , 4
Wheat. 316, 17 U. S. 421 . . . ." United States v. Wrightwood Dairy Co. was heavily
relied upon by Wickard v. Filburn, 317 U.
S. 111 , 317 U. S. 124 (1942), and the reasoning of these cases underlies every recent
decision concerning the reach of Congress to activities affecting
interstate commerce. See, e.g., Fry v. United States,
supra, at 421 U. S. 547 ; Perez v. United States, supra, at 402 U. S.
151 -152; Heart of Atlanta Motel, Inc. v. United
States, supra, at 379 U. S.
258 -259.

															It is worth recalling the cited passage in McCulloch
v. Maryland , 4 Wheat. 316, 17 U. S. 421 (1819), that lies at the source of the recent expansion of the
commerce power. "Let the end be legitimate, let it be within the
scope of the constitution," Chief Justice Marshall said,

															"and all means which are appropriate, which are plainly adapted
to that end, which are not prohibited, but consist with the letter
and spirit of the constitution, are constitutional."

															(Emphasis added.) The spirit of the Tenth Amendment, of course,
is that the States will retain their integrity in a system in which
the laws of the United States are nevertheless supreme. Fry v.
United States, supra, at 547, n. 7.

															It is not enough that the "end be legitimate;" the means to that
end chosen by Congress must not contravene the spirit of the
Constitution. Thus, many of this Court's decisions acknowledge that
the means by which national power is exercised must take into
account concerns for state autonomy. See, e.g., Fry v. United
States, supra, at 421 U. S. 547 ,
n. 7; New Page 469 U. S. 586 York v. United States, 326 U.
S. 572 , 326 U. S.
586 -587 (1946) (Stone, C.J., concurring); NLRB v.
Jones & Laughlin Steel Corp., supra, at 301 U. S. 37 ("Undoubtedly, the scope of this [commerce] power must be
considered in the light of our dual system of government, and may
not be extended so as to embrace effects upon interstate commerce
so indirect and remote that to embrace them, in view of our complex
society, would effectually obliterate the distinction between what
is national and what is local and create a completely centralized
government"); Santa Cruz Fruit Packing Co. v. NLRB, 303 U. S. 453 , 303 U. S.
466 -467 (1938). See also Sandalow,
Constitutional Interpretation, 79 Mich.L.Rev. 1033, 1055 (1981)
("The question, always, is whether the exercise of power is
consistent with the entire Constitution, a question that can be
answered only by taking into account, so far as they are relevant,
all of the values to which the Constitution -- as interpreted over
time gives expression"). For example, Congress might rationally
conclude that the location a State chooses for its capital may
affect interstate commerce, but the Court has suggested that
Congress would nevertheless be barred from dictating that location
because such an exercise of a delegated power would undermine the
state sovereignty inherent in the Tenth Amendment. Coyle v.
Oklahoma, 221 U. S. 559 , 221 U. S. 565 (1911). Similarly, Congress, in the exercise of its taxing and
spending powers, can protect federal savings and loan associations,
but if it chooses to do so by the means of converting quasi-public
state savings and loan associations into federal associations, the
Court has held that it contravenes the reserved powers of the
States because the conversion is not a reasonably necessary
exercise of power to reach the desired end. Hopkins Federal
Savings & Loan Assn. v. Cleary, 296 U.
S. 315 (1935). The operative language of these cases
varies, but the underlying principle is consistent: state autonomy
is a relevant factor in assessing the means by which Congress
exercises its powers. Page 469 U. S. 587 This principle requires the Court to enforce affirmative limits
on federal regulation of the States to complement the judicially
crafted expansion of the interstate commerce power. National
League of Cities v. Usery represented an attempt to define
such limits. The Court today rejects National League of
Cities and washes its hands of all efforts to protect the
States. In the process, the Court opines that unwarranted federal
encroachments on state authority are and will remain " horrible
possibilities that never happen in the real world.'" Ante at 469 U. S. 556 ,
quoting New York v. United States, supra, at 326 U. S. 583 (opinion of Frankfurter, J.). There is ample reason to believe to
the contrary. The last two decades have seen an unprecedented growth of
federal regulatory activity, as the majority itself acknowledges. Ante at 469 U. S.
544 -545, n. 10. In 1954, one could still speak of a
"burden of persuasion on those favoring national intervention" in
asserting that

															"National action has . . . always been regarded as exceptional
in our polity, an intrusion to be justified by some necessity, the
special, rather than the ordinary case."

															Wechsler, The Political Safeguards of Federalism: The Role of
the States in the Composition and Selection of the National
Government, 54 Colum.L.Rev. 543, 544-545 (1954). Today, as federal
legislation and coercive grant programs have expanded to embrace
innumerable activities that were once viewed as local, the burden
of persuasion has surely shifted, and the extraordinary has become
ordinary. See Engdahl, Sense and Nonsense About State
Immunity, 2 Constitutional Commentary 93 (1985). For example,
recently the Federal Government has, with this Court's blessing,
undertaken to tell the States the age at which they can retire
their law enforcement officers, and the regulatory standards,
procedures, and even the agenda which their utilities commissions
must consider and follow. See EEOC v. Wyoming, 460 U. S. 226 (1983); FERC v. Mississippi, 456 U.
S. 742 (1982). The political process Page 469 U. S. 588 has not protected against these encroachments on state
activities, even though they directly impinge on a State's ability
to make and enforce its laws. With the abandonment of National
League of Cities, all that stands between the remaining
essentials of state sovereignty and Congress is the latter's
underdeveloped capacity for self-restraint.

															The problems of federalism in an integrated national economy are
capable of more responsible resolution than holding that the States
as States retain no status apart from that which Congress chooses
to let them retain. The proper resolution, I suggest, lies in
weighing state autonomy as a factor in the balance when
interpreting the means by which Congress can exercise its authority
on the States as States. It is insufficient, in assessing the
validity of congressional regulation of a State pursuant to the
commerce power, to ask only whether the same regulation would be
valid if enforced against a private party. That reasoning, embodied
in the majority opinion, is inconsistent with the spirit of our
Constitution. It remains relevant that a State is being regulated,
as National League of Cities and every recent case have
recognized. See EEOC v. Wyoming, supra; Transportation Union v.
Long Island R. Co., 455 U. S. 678 , 455 U. S. 684 (1982); Hodel v. Virginia Surface Mining & Recl.
Assn., 452 U. S. 264 , 452 U. S.
287 -288 (1981); National League of Cities, 426
U.S. at 426 U. S.
841 -846. As far as the Constitution is concerned, a
State should not be equated with any private litigant. Cf.
Nevada v. Hall, 440 U. S. 410 , 440 U. S. 428 (1979) (BLACKMUN, J., dissenting) (criticizing the ability of a
state court to treat a sister State no differently than a private
litigant). Instead, the autonomy of a State is an essential
component of federalism. If state autonomy is ignored in assessing
the means by which Congress regulates matters affecting commerce,
then federalism becomes irrelevant simply because the set of
activities remaining beyond the reach of such a commerce power "may
well be negligible." Ante at 469 U. S.
545 .

															It has been difficult for this Court to craft bright lines
defining the scope of the state autonomy protected by National Page 469 U. S. 589 League of Cities. Such difficulty is to be expected
whenever constitutional concerns as important as federalism and the
effectiveness of the commerce power come into conflict. Regardless
of the difficulty, it is and will remain the duty of this Court to
reconcile these concerns in the final instance. That the Court
shuns the task today by appealing to the "essence of federalism"
can provide scant comfort to those who believe our federal system
requires something more than a unitary, centralized government. I
would not shirk the duty acknowledged by National League of
Cities and its progeny, and I share JUSTICE REHNQUIST's belief
that this Court will, in time, again assume its constitutional
responsibility.

															I respectfully dissent.