808
Souter, J., dissenting
Olmstead v. United States, 277 U. S. 438, 472 (1928) (Brandeis, J., dissenting).
IV
A
If today's decision occasions regret at its anomalous versions of history and federal theory, it is the more regrettable in being the second time the Court has suddenly changed the course of prior decision in order to limit the exercise of authority over a subject now concededly within the Article I jurisdiction of the Congress. The FLSA, which requires employers to pay a minimum wage, was first enacted in 1938, with an exemption for States acting as employers. See Maryland v. Wirtz, 392 U. S. 183, 185-186 (1968). In 1966, it was amended to remove the state employer exemption so far as it concerned workers in hospitals, institutions, and schools. See id., at 186-187, and n. 6. In Wirtz, the Court upheld the amendment over the dissent's argument that extending the FLSA to these state employees was "such a serious invasion of state sovereignty protected by the Tenth Amendment that it is . . . not consistent with our constitutional federalism." Id., at 201 (opinion of Douglas, J.).
In 1974, Congress again amended the FLSA, this time "extend[ing] the minimum wage and maximum hour provisions to almost all public employees employed by the States and by their various political subdivisions." National League of Cities, 426 U. S., at 836. This time the Court went the other way: in National League of Cities, the Court held the extension of the Act to these employees an unconstitutional infringement of state sovereignty, id., at 852; for good measure, the Court overturned Wirtz, dismissing its reasoning as no longer authoritative, see 426 U. S., at 854-855.
But National League of Cities was not the last word. In Garcia, decided some nine years later, the Court addressed the question whether a municipally owned mass-transit
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