810
Souter, J., dissenting
B
The Court might respond to the charge that in practice it has vitiated Garcia by insisting, as counsel for Maine argued, Brief for Respondent 11-12, that the United States may bring suit in federal court against a State for damages under the FLSA, on the authority of United States v. Texas, 143 U. S. 621, 644-645 (1892). See also Seminole Tribe, 517 U. S., at 71, n. 14. It is true, of course, that the FLSA does authorize the Secretary of Labor to file suit seeking damages, see 29 U. S. C. § 216(c), but unless Congress plans a significant expansion of the National Government's litigating forces to provide a lawyer whenever private litigation is barred by today's decision and Seminole Tribe, the allusion to enforcement of private rights by the National Government is probably not much more than whimsy. Facing reality, Congress specifically found, as long ago as 1974, "that the enforcement capability of the Secretary of Labor is not alone sufficient to provide redress in all or even a substantial portion of the situations where compliance is not forthcoming voluntarily." S. Rep. No. 93-690, p. 27 (1974). One hopes that such voluntary compliance will prove more popular than it has in Maine, for there is no reason today to suspect that enforcement by the Secretary of Labor alone would likely prove adequate to assure compliance with this federal law in the multifarious circumstances of some 4.7 million employees of the 50 States of the Union.40
The point is not that the difficulties of enforcement should drive the Court's decision, but simply that where Congress has created a private right to damages, it is implausible to claim that enforcement by a public authority without any incentive beyond its general enforcement power will ever afford the private right a traditionally adequate remedy. No
40 The most recent available data give 4,732,608 as the total number of employees of the 50 States of the Union, see State Government Employment Data: March 1997, http://www.census.gov/pub/govs/apes/97stus.txt.
Page: Index Previous 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 NextLast modified: October 4, 2007