Cite as: 505 U. S. 144 (1992)
Opinion of White, J.
III
The Court announces that it has no occasion to revisit such decisions as Gregory v. Ashcroft, 501 U. S. 452 (1991); South Carolina v. Baker, 485 U. S. 505 (1988); Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528 (1985); EEOC v. Wyoming, 460 U. S. 226 (1983); and National League of Cities v. Usery, 426 U. S. 833 (1976); see ante, at 160, because "this is not a case in which Congress has subjected a State to the same legislation applicable to private parties." Ibid. Although this statement sends the welcome signal that the Court does not intend to cut a wide swath through our recent Tenth Amendment precedents, it nevertheless is unpersuasive. I have several difficulties with the Court's analysis in this respect: It builds its rule around an insupportable and illogical distinction in the types of alleged incursions on state sovereignty; it derives its rule from cases that do not support its analysis; it fails to apply the appropriate tests from the cases on which it purports to base its rule; and it omits any discussion of the most recent and pertinent test for determining the take title provision's constitutionality.
The Court's distinction between a federal statute's regulation of States and private parties for general purposes, as opposed to a regulation solely on the activities of States, is unsupported by our recent Tenth Amendment cases. In no case has the Court rested its holding on such a distinction. Moreover, the Court makes no effort to explain why this purported distinction should affect the analysis of Congress' power under general principles of federalism and the Tenth Amendment. The distinction, facilely thrown out, is not based on any defensible theory. Certainly one would be hard pressed to read the spirited exchanges between the Court and dissenting Justices in National League of Cities, supra, and in Garcia v. San Antonio Metropolitan Transit Authority, supra, as having been based on the distinction now drawn by the Court. An incursion on state sovereignty
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