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 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.
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 countywide 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.
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
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
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
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
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:
Reargument followed in due course.
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, 276-277 (1981); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 258 (1964); Wickard v. Filburn, 317 U.S. 111, 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 287-288, and n. 29, quoting National League of Cities, 426 U. S., at 845, 852, 854.
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 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.
Many constitutional standards involve "undoubte[d] . . . gray areas," Fry v. United States, 421 U.S. 542, 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 451, 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."
If these tax-immunity cases had any common thread, it was in the attempt to distinguish between "governmental" and "proprietary" functions.
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
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
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
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, 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, 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 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'
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
The States unquestionably do "retai[n] a significant measure of sovereign authority." EEOC v. Wyoming, 460 U. S., at 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, 401 (1893), a defense quoted with approval in Erie R. Co. v. Tompkins, 304 U.S. 64, 78-79 (1938):
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 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
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
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.
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.
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.
IV
This analysis makes clear that Congress' action in affording SAMTA employees the protections of the wage and hour
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, 583 (1946):
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 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
We do not lightly overrule recent precedent.
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.
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
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:
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 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, 212 (1984). See also Oregon v. Kennedy, 456 U.S. 667, 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.
Whatever effect the Court's decision may have in weakening the application of stare decisis, it is likely to be less
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 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
In my opinion that follows, Part II addresses the Court's criticisms of National League of Cities. Part III reviews briefly the understanding of federalism that ensured the ratification of the Constitution and the extent to which this Court, until today, has recognized that the States retain a significant measure of sovereignty in our federal system. Part IV considers the applicability of the FLSA to the indisputably local service provided by an urban transit system.
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.
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 852-853. Our subsequent decisions also adopted this approach of weighing the respective interests of the States and Federal
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.
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, 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.
III
A
In our federal system, the States have a major role that cannot be pre-empted 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
Antifederalists raised these concerns in almost every state ratifying convention.
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:
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
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 846-851. Nor is it a matter of the wisdom or folly of certain policy choices. Cf. ante, at 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, 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.
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 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 842-843 (quoting Fry v. United States, 421 U. S., at 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 76. Recently, in Community Communications Co. v. Boulder, 455 U.S. 40, 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 683, although finding the Railway Labor Act applicable to a state-owned railroad, the
Again, in FERC v. Mississippi, 456 U.S. 742, 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, 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 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 549 (quoting EEOC v. Wyoming, supra, at 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.
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 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 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.
The Court maintains that the standard approved in National League of Cities "disserves principles of democratic self-governance." Ante, at 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
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.
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.
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 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.
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
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 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,
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, 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, 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.
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
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
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 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 124. It is through this reasoning that an intrastate activity "affecting" interstate commerce can be reached through the
United States v. Wrightwood Dairy Co. was heavily relied upon by Wickard v. Filburn, 317 U.S. 111, 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 547; Perez v. United States, supra, at 151-152; Heart of Atlanta Motel, Inc. v. United States, supra, at 258-259.
It is worth recalling the cited passage in McCulloch v. Maryland, 4 Wheat. 316, 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 547, n. 7; New
The last two decades have seen an unprecedented growth of federal regulatory activity, as the majority itself acknowledges. Ante, at 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
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, 684 (1982); Hodel v. Virginia Surface Mining & Recl. Assn., 452 U.S. 264, 287-288 (1981); National League of Cities, 426 U. S., at 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, 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 545.
It has been difficult for this Court to craft bright lines defining the scope of the state autonomy protected by National
I respectfully dissent.
FootNotes
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.
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 n. 9, supra.
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