102
Opinion of Thomas, J.
to recover the liability prescribed in either of the preceding sentences may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction." 29 U. S. C. § 216(b).
But, as noted in the above discussion of Employees, § 216(b) was not always so worded. At the time the ADEA was enacted in 1967, a relatively sparse version of § 216(b)— which Employees held insufficient to abrogate the States' immunity—provided that an "[a]ction to recover such liability may be maintained in any court of competent jurisdiction." 29 U. S. C. § 216(b) (1964 ed.). It was not until 1974 that Congress modified § 216(b) to its current formulation. Fair Labor Standards Amendments of 1974 (1974 Amendments), § 6(d)(1), 88 Stat. 61.
This sequence of events suggests, in my view, that we should approach with circumspection any theory of "clear statement by incorporation." Where Congress amends an Act whose provisions are incorporated by other Acts, the bill under consideration does not necessarily mention the incorporating references in those other Acts, and so fails to inspire confidence that Congress has deliberated on the consequences of the amendment for the other Acts. That is the case here. The legislation that amended § 216(b), § 6(d)(1) of the 1974 Amendments, did not even acknowledge § 626(b). And, given the purpose of the clear statement rule to " 'assur[e] that the legislature has in fact faced' " the issue of abrogation, Will, 491 U. S., at 65 (quoting Bass, 404 U. S., at 349), I am unwilling to indulge the fiction that Congress, when it amended § 216(b), recognized the consequences for a separate Act (the ADEA) that incorporates the amended provision.
To be sure, § 28 of the 1974 Amendments, 88 Stat. 74, did modify certain provisions of the ADEA, which might suggest that Congress understood the impact of § 6(d)(1) on the ADEA. See ante, at 76. But § 6(d)(2)(A), another of the 1974 Amendments, suggests just the opposite. Section
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