800
Souter, J., dissenting
838 (1995) (Kennedy, J., concurring), the general scheme of delegated sovereignty as between the two component governments of the federal system was clear, and was succinctly stated by Chief Justice Marshall: "In America, the powers of sovereignty are divided between the government of the Union, and those of the States. They are each sovereign, with respect to the objects committed to it, and neither sovereign with respect to the objects committed to the other." McCulloch v. Maryland, 4 Wheat. 316, 410 (1819).32
Hence the flaw in the Court's appeal to federalism. The State of Maine is not sovereign with respect to the national objectives of the FLSA.33 It is not the authority that promulgated the FLSA, on which the right of action in this case depends. That authority is the United States acting through the Congress, whose legislative power under Article I of the Constitution to extend FLSA coverage to state employees has already been decided, see Garcia v. San Antonio Metropolitan Transit Authority, supra, and is not contested here.
32 This is entirely consistent with, and indeed is a corollary of, the statement quoted by the Court that the States are " 'no more subject, within their respective spheres, to the general authority than the general authority is subject to them, within its own sphere.' " Ante, at 714 (quoting The Federalist No. 39, p. 245 (C. Rossiter ed. 1961) (J. Madison)). The point is that matters subject to federal law are within the federal sphere, and so the States are subject to the general authority where such matters are concerned.
33 It is therefore sheer circularity for the Court to talk of the "anomaly," ante, at 752, that would arise if a State could be sued on federal law in its own courts, when it may not be sued under federal law in federal court, Seminole Tribe of Florida v. Florida, 517 U. S. 44 (1996). The short and sufficient answer is that the anomaly is the Court's own creation: the Eleventh Amendment was never intended to bar federal-question suits against the States in federal court. The anomaly is that Seminole Tribe, an opinion purportedly grounded in the Eleventh Amendment, should now be used as a lever to argue for state sovereign immunity in state courts, to which the Eleventh Amendment by its terms does not apply.
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