JOE G. GARCIA, APPELLANT V. SAN ANTONIO METROPOLITAN TRANSIT
AUTHORITY, ET AL. RAYMOND J. DONOVAN, SECRETARY OF LABOR, APPELLANT V.
SAN ANTONIO METROPOLITAN TRANSIT AUTHORITY, ET AL.

   No. 82-1913, No. 82-1951

   In the Supreme Court of the United States

   October Term, 1983

   On appeals from the United States District Court for the Western
District of Texas

   Reply Brief for the Secretary of Labor

   The question in this case is whether provisions of the 1966 and
1974 amendments to the Fair Labor Standards Act (FLSA) that
progressivley extended minimum wage and overtime wage protection to
employees of pubicly owned mass transit systems are a permissible
exercise of Congress's authority to legislate under the Commerce
Clause.  This question was not resolved by the Court's decision in
National League of Cities v. Usery, 426 U.S. 833 (1976), because the
statutory provisions that were at issue there are distinct from those
now before the Court.  See Gov't Br. 2-5.

   In our opening brief we have explained that operation of a transit
system is not a "traditional governmental function()" within the
meaning of National League of Cities, 426 U.S. at 852, and that
application of the FLSA to transit systems poses no threat to the
separate and independent existence of the states.  Appellees'
counter-arguments generally were anticipated in our opening brief and,
for the most part, require no reply.  Several points do warrant
further comment, however.

   A. 1. National League of Cities declared the Tenth Amendment
principle that the National Government may not "'devour the essentials
of state sovereignty'" (426 U.S. at 855 (quoting Maryland v. Wirtz,
392 U.S. 183, 205 (1968) (Douglas, J., dissenting)).  Thus Congress
may not apply its vast power to regulate commerce directly upon
activities of the states in a "'fashion that impairs the States'
integrity or their ability to function effectively in a federal
system.'" National League of Cities, 426 U.S. at 843 (quoting Fry v.
United States, 421 U.S. 542, 6547 n.7 (1975)).

   In this and in other areas of state immunity from federal
legislation, however, the Court has been sensitive to the expanding
"activity of state governments into new fields * * * (undertaking) the
performance of functions not known to the states when the constitution
was adopted" (National League of Cities, 426 U.S. at 870 n.10
(Brennan, J., dissenting)) and the tendency of state and local
enterprises to make economic choices affecting interstate commerce
restricted only by parochial interests.  See Lafayette v. Louisiana
Power & Light Co., 435 U.S. 389, 422-424 (1978) (Opinion of Burger,
C.J.).  Because a restraint on national power erected to prevent the
destruction of state sovereignty might become a vehicle for the
erosion of national authority and the integrity of federal power, the
Court has been careful to limit areas of immunity to circumstances
where federal control might "directly displace the States' freedom to
structure integral operations in areas of traditional governmental
functions" (National League of Cities, 426 U.S. at 852).  The Court
subsequently explained that its repeated "emphasis on traditional
government functions and traditional aspects of state sovereignty" was
"meant to require an inquiry into whether the federal regulation
affects basic state prerogatives in such a way as would be likely to
hamper the state government's ability to fulfill its role in the Union
and endanger its 'separate and independent existence.'" United
Transportation Union v. Long Island R.R., 455 U.S. 678, 686-687 (1982)
(quoting National League of Cities, 426 U.S. at 851).

   The Court has refused to recognize any "sacred province of state
autonomy," but has carefully limited the states' immunity to "core
state functions" (EEOC v. Wyoming, No. 81-554 (Mar. 2, 1983), slip op.
9).  Rejecting "pernicious abstractions" (Graves v. New York, 306 U.S.
466, 489-490 (1939) (Frankfurter, J., concurring)), the Court has
delimited the sphere of Tenth Amendment immunity from Commerce Clause
legislation to what is actually necessary to preserve the separate and
independent existence of the states (EEOC v. Wyoming, slip op. 9).

   Appellees suggest that Tenth Amendment immunity must be extended to
publicly operated transit enterprises simply because they are publicly
operated and because the services provided are needed by the persons
who use them.  See APTA Br. 9, 16;  SAMTA Br. 33-34.  But this
submission represents a radical departure from the Court's prior
decisions.  The importance of transit or any other service to those
who use it simply does not provide a measure of the impact upon state
sovereignty of federal legislation applying uniform wage standards to
enterprises in the public and private sector.  In today's society,
many goods and services are "essential" to public welfare.  Yet a
decision by the states to take over the provisions of food, clothing
or the channels of communication to their citizens plainly could not
justify abrogation of the authority of Congress to legislate, in the
national interest, regarding thses vital components in the stream of
commerce.

   2. Fifty years ago, in Helvering v. Powers, 293 U.S. 214 (1934),
this Court unanimously held that the municipal operation of a street
railway, "(w)hile * * * for the public benefit, * * * is still a
particular business enterprise" (id. at 223) and not a field of
activity which required protection from federal taxation in order to
protect the independence of state government.  The operation of such
an enterprise was described by Chief Justice Hughes as "distinct" from
"usual governmental functions" (id at 227).  Appellees brush Powers
aside as an antique, conveniently overlooking that they are trying to
prove that municipal transit systems are "traditional" governmental
functions.  Powers establishes at minimum that more than a century
into this Nation's existence no member of this Court viewed a public
transit system as even a "governmental," much less a "traditional"
governmental, function.

   Just a term ago, in a decision that appellees are unable to
characterize as out-of-date, this Court again unanimously remained
unconvinced that a publicly owned and operated commuter railroad is a
traditional government function.  Long Island R.R., 455 U.S. at 686.
The holding of Long Island R.R. leaves little room for appellees'
argument that operation of a transit system free of the requirements
of uniform federal legislation regulating commerce is essential to
preservation of state sovereignty.  The Court there rejected a
virtually identical claim, stating:

      "(T)here (is) certainly no question that a State's operation of
      a common carrier, even without profit and as a 'public
      function,' would be subject to federal regulation under the
      Commerce Clause . . . ."

   455 U.S. at 685 n.11 (quoting City of Lafayette v. Louisiana Power
& Light Co., 435 U.S. 389, 422 (1978) (opinion of Burger, C.J.)).
Appellees struggle to find factual distinctions between a commuter
railroad and a transit system (see page 12 & note 7, infra).  But even
if these technical distinctions had substance, they simply could not
justify adopting disparate rules of constitutional law for commuter
railroads and other transit operations;  the dispositive fact is that
neither commuter railroads nor other transit operations "provide() an
integral portion of those governmental services which the States and
their political subdivisions have traditionally afforded their
citizens" (National League of Cities, 426 U.S. at 855).  /1/

   B. 1. The government's opening brief canvassed the numerous
attributes of publicly operated transit systems that set them apart
from the "traditional governmental functions" held to be immune from
the operation of the Fair Labor Standards Act in National League of
Cities.  These include:  the historic predominance of the private
sector in providing local transit services, the infant status of the
public sector of the industry, and the continuing role of private
carriers (Gov't Br. 16-24);  the critical role of federal financial
aid in making possible the acquisition and operation of transit
services by local governments in recent years (Gov't Br. 26-38);  the
existence of substantial federal regulatory legislation governing
labor relations and terms of employment in the local transit industry
that was in place by the time significant numbers of local governments
began to acquire transit systems (Gov't Br. 39-43);  the absence of
any untoward impact upon state prerogatives resulting from application
of the FLSA to public transit employment (Gov't Br. 43-46);  and the
potent federal interest in preventing unfair competition in commerce,
which, Congress determined, required FLSA coverage of public transit
employment (Gov't Br. 46-48).  In the aggregate these factors show
that the transit provisions of the FLSA pose no threat to state
sovereignty.

   Appellees' response, by and large, is to suggest one example or
another of a service, claimed to be immune from operation of the FLSA
under the teaching of National League of Cities, that allegedly shares
one of the special attributes of the local transit industry.  /2/ The
particular analogies drawn by appellees generally are dubious, at
best.  A more significant and revealing consideraion, we submit, is
that appellees do not -- and cannot -- identify any state or local
governmental activitity recognized to be within the protected sphere
delineated in National League of Cities that possesses anything like
the combination of distinguishing attributes that set the public
sector of the local transit industry apart.

   For example, appellees observe (APTA Br. 25 n.33;  SAMTA Br. 35-37)
that hospitals and schools, like transit, currently are found in the
private as well as the public sector.  /3/ But appellees forget that
the public sector in these fields was well established before the
enactment of the FLSA -- and long before its extension to cover public
employment.  And there is no evidence whatsoever that public
participation in these fields resulted from governmental takeovers of
private enterprises previously subject to the FLSA, much less that
such a transformation was materially assisted by substantial federal
funding.

   Similarly, appellees adduce other examples of state or local
governmental activities that have been substantially assisted with
federal funds (APTA Br. 38 n.57;  SAMTA Br. 43), such as construction
of wastewater treatment plants.  /4/ But in none of these examples was
a service traditionally performed by the private sector subject to the
FLSA converted to public operation, thereby eroding federal
constitutional authority.  In other instances cited by appellees, such
as the education of handicapped children (see APTA Br. 38 n.57),
federal funds have encouraged or made possible the augmentation of
existing services or provision of public services to an expanded
client population within a existing area of local governmental
responsibility.  Such enhancement or expansion of existing services is
hardly comparable to the dramatic conversion of the entire field of
local transit service from the private sector to the public sector
that occurred in many communities in recent years.  Unlike the former,
the latter serves -- if the decision below should stand -- to repeal
the established federal wage and hour protections applicable in an
entire industry.

   The wholly artificial exercise of examining in isolation particular
facets of the complex of attributes that distinguish the public sector
of the transit industry from the protected "traditional governmental
functions" identified in National League of Cities cannot assist
appellees.  The ultimate inquiry required by National League of Cities
and its progeny is "whether the federal regulation affects basic state
prerogatives in such a way as would be likely to hamper the state
government's ability to fulfill its role in the Union and endanger its
'separate and independent existence." Long Island R.R., 455 U.S. at
686-687 (quoting National League of Cities, 426 U.S. at 851).  This
heavy burden cannot be met by a showing that transit shares selected
attributes of activities previously identified as protected.  /5/

   2. a. In their efforts to portray local transit service as a
"traditional governmental function," appellees engage in a substantial
exercise in historical revisionism (see APTA Br. 23-24;  SAMTA Br.
26-28).  This is best demonstrated by tracing the course of APTA's own
utterances on this subject.  As recently as December 1979,
contemporaneous with the filing of the complaint in this action,
APTA's official public literature proclaimed bluntly:  "Public Fact
Book 55 (1978-1979 ed.).  Less than two years later, with this
litigation going forward, APTA reversed its assessment 180 degrees,
stating, based on the very same data, that "(p)ublic ownership of
transit is not a recent development" Transit Fact Book 1981, at 27
(1981).  Similarly, while appellees now attempt to minimize the
significance of federal financial assistance (APTA Br. 38), APTA
acknowledged in 1981 that federal funding for local transit in the
1960's saved transit in "many cities" from "extinction," and that
federal aid has since increased "many times." Transit Fact Book 1981,
at 29-30.  Indeed, even today, amici curiae National League of Cities
et al. appear to acknowledge (Br. 5-6) that although some public
transit systems existed prior to the advent of federal assistance, the
major shift of transit service from the private sector to the public
sector followed, and was dependent to a critical degree upon, the
availability of substantial federal financial assistance.  Appellees'
effort to characterize the public sector of the local transit industry
as an independent creation of state or local government of long
standing accordingly should be greeted with skepticism.

   b. As an alternative to this effort to recast history, appellees
fall back upon the district court's observation (J.S. App. 4a) that
transportation-related activities such as road building are
historically associated with the public sector (see SAMTA Br. 45-46;
see also APTA Br. 15-17, 23).  But there is no warrant for treating
all transportation-related activities as a single service for purposes
of Tenth Amendment analysis.  Plainly, that approach was not followed
in Long Island R.R. (see Gov't Br. 20-21).  And Jefferson County
Pharmaceutical Ass'n v. Abbott Laboratories, No. 81-827 (Feb. 23,
1983), slip op. 3 & n.6, rejects any such indiscriminate approach to
the contours of Tenth Amendment immunity.

   In any event, appellees' argument is simply factually
insupportable.  The employees whose eligibility for minimum wage and
overtime protection is at issue here are those who operate, service
and administer a transit system.  Such employees are in no respect
interchangeable with those engaged in road building or planning a
transportation infrastructure.  A tradition of state responsibility
for road building or maintenance is accordingly no more relevant in
determining the availability of Tenth Amendment immunity for transit
operating and administrative employees than is private sector
performance of the function of manufacturing motor vehicles, which
undoubtedly provide the bulk of local transportation.  /6/

   c. Like the district court (see J.A. App. 5a), in its effort to
establish the elements of Tenth Amendment immunity, SAMTA seizes upon
(Br. 24-26) state regulation of local transit service as a substitute
for the absent tradition of state operation of transit systems (see
also NLC Br. 4-5).  We have already explained (see Gov't Br. 21-24)
why this reasoning is alien to this Court's Tenth Amendment teaching.
SAMTA, however, points (Br. 24) to this Court's observation, in Long
Island R.R., at the end of its recitation of the long history of
federal regulation of employment relations in the railroad industry,
that "(t)here is no comparable history of longstanding state
regulation of railroad collective bargaining or of other aspects of
the railroad industry" (455 U.S. at 688).  But the Court's comment,
read in context, hardly suggests that the existence of such a
tradition would suffice to override the federal interest in
application of a uniform regulatory scheme.  See also Virginia Surface
Mining & Reclamation Ass'n, Inc., 452 U.S. at 289-292 & n.31.  /7/ At
most this would be one factor that might be considered in balancing
the federal and state interests.  See id. at 288 n.29.

   As it happens, however, there is no need to undertake a refined
balancing analysis here.  As explained in our opening brief (at
39-43), substantial federal regulation affected wages, collective
bargaining, and other aspects of labor relations in the private sector
of the transit industry by the time the bulk of the recent conversions
of transit operation fo public ownership occurred.  /8/ By contrast,
state regulation of private local transit operations did not, even by
appellees' account (see SAMTA Br. 25-26 & n.20;  see also NLC Br.
4-5), extend to any facet of labor relations, much less to wages and
overtime.

   3. Appellees devote a considerable portion of their argument (APTA
Br. 35-45;  SAMTA Br. 41-45) to disputing what they mischaracterize as
a "Spending Power argument in a Commerce Clause case" (SAMTA Br.
42-43).  But the significance to our argument of federal grants to
local public transit systems is hardly "elusive" (compare APTA Br.
35-36).  It is simply this:  to the extent that Tenth Amendment
immunity may extend to local governmental functions that are
manifestly not "traditional" in the strict historical sense (see Gov't
Br. 24-26), it necessarily is pertinent to inquire how the "new"
function came to be established in the public sector.

   On that question appellees cannot dispute the historical record.
Private transit systems in many cities were taken over by local
government with substantial federal financial assistance.  The
representatives of local government told Congress, and Congress found
as a fact, that, in many cities, local transit service could not
survive without federal financial assistance that made possible public
acquisition and improvement of existing private systems.  In view of
the critical role of federal funding in establishing mass transit in
the public sector, it is unrealistic to portray transit as the kind of
"core state function" (EEOC v. Wyoming, slip op. 9) that cannot be
covered by uniform federal legislation establishing fair wage
standards without critically endangering the survival of the states as
independent entities.  See Long Island R.R., 455 U.S. at 686-687;  see
also Hughes v. Alexandria Scrap Corp., 426 U.S. 794, 815 (1976)
(Stevens, J., concurring).  Appellees simply cannot have it both ways,
stressing the non-"static" aspects of state sovereignty while ignoring
the path that led from past to present.  /9/

   Contrary to appellees' contention (APTA Br. 39;  SAMTA Br. 42),
nothing in Pennhurst State School and Hospital v. Halderman, 451 U.S.
1, 17 (1981), suggests that the federal funding that made possible
much of the growth of the public sector of transit industry must now
be disregarded.  Pennhurst embodies a rule of statutory construction
useful in determining otherwise ambiguous legislative intent, when it
is argued that a federal statute enacted under the spending power
imposes requirements on states that accept federal funds.  Cf. EEOC v.
Wyoming, slip op. 16 n.18.  Here, of course, there is no question but
that Congress intended to extend the FLSA to publicly operated transit
systems.  The only question presented is whether Congress exceeded its
constitutional power in doing so, a question as to which Pennhurst has
no bearing.  Federal funding is relevant to the constitutional
question because it is critical to assessing the nature and
significance of recent growth of the public sector of the transit
industry.  Because we do not contend that compliance with the FLSA was
a requirement imposed upon the states by the Urban Mass Transportation
Act of 1964 (UMT Act), and because the authority of Congress to enact
the FLSA rests on the Commerce Clause, the rule of statutory
construction reflected in Pennhurst has no application here.

   Appellees' reliance (APTA Br. 41;  SAMTA Br. 41) on Jackson Transit
Authority v. Local Div. 1285, Amalgamated Transit Union, 457 U.S. 15
(1982), is also misplaced.  The issue in that case was whether Section
13(c) of the UMT Act, 49 U.S.C. 1609(c), creates a federal cause of
action to enforce an agreement between transit labor and management,
entry into which was contemplated by the federal statute.  Because we
do not rely in this case on the legislative effect of Section 13(c) or
any other provision of the UMT Act, the Court's comment in Jackson
Transit, 457 U.S. at 27, that the UMT Act did not create a body of
federal transit labor law is likewise irrelevant.

   4. APTA argues (Br. 20-21;  see also NLC Br. 9-10) that, contrary
to Congress's considered judgment (see Gov't Br. 46), application of
the FLSA to transit operating employees would cause certain poorly
defined special hardships for public transit systems because of work
scheduling practices common in the industry.  Deference to the
legislative judgment is particularly appropriate in this instance.
Appellees have not shown any flaw in Congress's determinations that
overtime pay comparable to that required by the FLSA was generally
required by collective bargaining agreements in the public transit
industry and that any special problems of application could be
resolved through collective bargaining or in the administrative
process (see H.R. Rep. 93-913, 93d Cong., 2d Sess. 30-31 (1974)).

   In sum, appellees have wholly failed to demonstrate concrete
burdens upon their sovereign prerogatives that would flow from
application of the FLSA to public transit systems.  The power of
Congress to regulate commerce may not be interdicted on so flimsy a
foundation.

   For the foregoing reasons, and the reasons set forth in our opening
brief, /10/ the judgment of the district court should be reversed.

   Respectfully submitted.

   REX E. LEE

      Solicitor General

   THEODORE B. OLSON

      Assistant Attorney General

   MARCH 1984

   /1/ APTA stated in 1981 that commuter railroads "are rapidly being
merged into the transit industry" and without exception "are now
either publicly owned or receive financial support from public
agencies." Transit Fact Book 1981, at 18.  And in its amicus curiae
brief in Long Island R.R., APTA remarked (at 21) that "this Court
should not evaluate commuter trains in isolation, but rather it should
consider them as an integral part of local urban mass transportation
systems throughout the United States." Respondent (see Br. 7, 18-24 &
nn.22-23) and the other amici supporting it in Long Island R.R. made
the same point (see Nat'l League of Cities Br. 10-12;  Nat'l Inst. of
Mun. Law Officers Br. 3, 10-17).  Of course, as APTA observes (Br. 14
n.15, 26 n.38), we pointed out in Long Island R.R. that the question
presented in this case did not have to be resolved there, and that
differences existed between the role of local government in commuter
rail operations and in other forms of transit.  But nothing in our
earlier brief suggests that mass transit operations meet the test for
Tenth Amendment immunity.  Moreover, it is difficult to understand how
APTA can maintain (Br. 15-16) that transit services are an inseparable
part of a city's larger transportation network, yet that different
constitutional rules should apply to a commuter railroad and bus or
subway operations conducted by the very same governmental entity.
(The Long Island Railroad is operated by New York's Metropolitan
Transportation Authority, which also operates New York City's buses
and subways.  See Resp. Br. 1-2, Long Island R.R.)

   /2/ See generally SAMTA Br. 33-40, 43-44;  APTA Br. 25 n.33, 33-34
38 n.57, 39-40 & n.61.

   /3/ We note that appellees utilize incommensurable statistics in
making these comparisons, highlighting for instance (APTA Br. 25 n.33)
the proportion of schools that are privately operated.  But the data
that we have presented (see Gov't Br. 16-18) reflect the proportion of
American communities that have assumed responsibility for local
transit service.  Appellees have not identified a single community in
the United States that relies exclusively on private schools.  The
states' and municipalities' perception that eduction is a service they
have a sovereign duty to provide -- irrespective of the availability
of private sector alternatives -- reflects that education, unlike
transit, is among the "functions * * * which governments are created
to provide" (National League of Cities, 426 U.S. at 851).  Cf. Plyler
v. Doe, 457 U.S. 202, 221-223 (1982).

   /4/ If, as appellees assert, these plants simply would not exist
but for the availability of federal funding, it might well be entirely
proper for Congress to require FLSA protection for the employees of
such plants.  Contrary to appellees' assumption, the mere
characterization of "sanitation" as a traditional government function
in National League of Cities, 426 U.S. at 851, does not resolve this
issue.  Cf. 29 C.F.R. 775.3(b) (FLSA may be applied to production and
sale of organic fertilizer as a by-product of sewage treatment;  see
Gov't Br. 6).

   /5/ Appellees seek (APTA Br. 12-14;  SAMTA Br. 15-17) to foreclose
consideration by the Court of whether application of the FLSA to
public transit systems unduly intrudes upon the states' "ability 'to
structure integral operations'" (Hodel v. Virginia Surface Mining &
Reclamation Ass'n, Inc., 452 U.S. 264, 288 (1981) (quoting National
League of Cities, 426 U.S. at 852)) or whether "the nature of the
federal interest advanced" here is "such that it justifies state
submission" (Hodel, 452 U.S. at 288 n.29).  But it would be improper
to read National League of Cities to prevent examination of any
element of the established tests for Tenth Amendment immunity.

   The transit provisions of the FLSA amendments of 1966 and 1974 were
not before the Court in National League of Cities.  Moreover, the
Court carefully canvassed the effects of the wage and hour
requirements as applied to the traditional governmental functions
involved in National League of Cities.  It determined that they
entailed "a virtual chain reaction of substantial and almost certainly
unintended consequential effects on state decisionmaking" amounting to
a "wide-ranging and profound threat to the structure of State
governance" (EEOC v. Wyoming, No. 81-554 (Mar. 2, 1984), slip op. 13).
 Only then was the Court able to conclude that the states' ability to
set wages for employees performing these particular governmental
functions free of the impact of federal law was an integral part of
state sovereignty.  See 426 U.S. at 845-852.  By contrast, we have
presented substantial arguments, not answered by appellees, that no
such impermissible effect is portended by the distinct statutory
provisions of the FLSA rest upon Congress's determination that
application of the FLSA to the public sector of the transit industry
is required in order to prevent unfair competition (see Gov't Br.
46-48) -- a consideration nowhere addressed in National League of
Cities.

   The presumption of constitutionality that cloaks the 1966 and 1974
transit amendments to the FLSA (see Usery v. Turner Elkhorn Mining
Co., 428 U.S. 1, 15 (1976)) accordingly cannot be overcome without
consideration of all the factors that bear upon the question
presented.  Indeed, to artifically constrict the range of the Court's
inquiry in this case would be inconsistent with the Court's
explanation in National League of Cities (426 U.S. at 852-853) of its
refusal to overrule Fry v. United States, 421 U.S. 542 (1975).

   /6/ Appellees' reliance (SAMTA Br. 5-6 n.3, 45-46;  APTA Br. 5 n.8,
23) on Molina-Estrada v. Puerto Rico Highway Authority, 680 F.2d 841
(1st Cir. 1982), is misplaced.  There the court held, as a matter of
statutory interpretation, that the FLSA does not apply to employees of
the Puerto Rico Highway Authority whose "work is related to the
Authority's road building and maintenance activities" (id. at 846).
Tenth Amentment principles were invoked only by analogy to guide the
court in statutory interpretation (id. at 846-847).  Although the
court observed that the Puerto Rico Highway Authority "plans to build
a mass transit system" (id. at 845), its decision rested upon the
individual plantiff/employees' jobs -- in road building and
maintenance (id. at 846) -- and in no respect suggests that operation
of a transit system should be regarded as a traditional governmental
function inseparable from responsibility for road construction.  As
noted in our opening brief (at 10 n.13), the courts of appeals
uniformly have rejected the claim advanced by appellees in this case.

   /7/ SAMTA generally makes the mistake of treating each of the
observations offered to buttress the holding of Long Island R.R. that
the Railway Labor Act may constitutionally be applied to a state owned
commuter railroad as a negative pregnant prescribing a different
result if any of the facts of the case were altered (see SAMTA Br.
17-29).  But, as the unanimity that attended the Court's decision in
Long Island R.R. attests, the multiplicity of factors supporting the
Court's decision simply reflects that the decision was a relatively
clearcut one.  Application of the teaching of Long Island R.R.
requires more than mere mechanical comparison of the facts of the two
cases.

   /8/ SAMTA suggests (Br. 22-23) that, because the National Labor
Relations Act, 29 U.S.C. (& Supp. V) 151 et seq., applies to certain
private sector counterparts to protected functions enumerated in
National League of Cities, that statute may not be considered in
determining whether a state takeover of services previously performed
by the private sector impermissibly erodes federal authority.  But the
problem of erosion of federal authority arises only when a new public
sector endeavor is created by conversion of private sector activities.
 Moreover, contrary to SAMTA's further suggestion, to bar such erosion
of federal authority is not to impose a fixed view of state functions
inconsistent with Long Island R.R.  Rather, there is an important
distinction between genuinely new state services that may, in some
instances, reshape the protected sphere of state activity without
vitiating federal sovereignty, and functions taken over from the
private sector that were previously subject to federal regulation.
See Long Island R.R., 455 U.S. at 686-687.

   /9/ As we have previously explained (Gov't Br. 24-26), nothing in
Long Island R.R. should be understood to adopt an ahistorical approach
to the scope of state immunity from federal enactments under the
Commerce Clause.  Indeed, the additional evidence canvassed in that
case (455 U.S. at 687-688) was largely historical in nature.

   Nor, contrary to SAMTA's suggestion (Br. 31-32), is a different
rule required by Brush v. Commissioner, 300 U.S. 352, 370-371 (1937).
Subsequent decision in the area of tax immunity make clear that the
language cited by SAMTA represented only an interpretation of the
applicable Treasury regulation, which adopted an ahistorical standard.
 See Helvering v. Gerhardt, 304 U.S. 405, 422-423 (1938).  And in New
York v. United States, 326 U.S. 572 (1946), a plurality of the Court,
speaking through Chief Justice Stone, rejected an ahistorical
approach, at least to the extent that it would "accomplish a
withdrawal from the taxing power of the nation a subject of taxation
of a nature which has been traditionally within that power from the
beginning" (326 U.S. at 588).  At the same time, Justice Frankfurter,
joined by Justice Rutledge, condemned an ahistorical standard as "too
shifting a basis for determining constitutional power and too tangled
in expediency to serve as a dependable legal criterion" (326 U.S. at
580).

   The Court has recently recognized the hazards of adopting such
shifting rules of law.  First National City Bank v. Banco Para El
Commercio Exterior, No. 81-984 (June 17, 1983), slip op. 22 n.27.  In
our opening brief we also noted (at 50-51) the burdens that would be
imposed upon Congress by judicial acceptance of a formless and
ahistorical standard for Tenth Amendment immunity.  We explained that
our constitutional regrime assigns to Congress both the competence and
the primary responsibility for making adjustments in federal
legislation to reflect altered social or economic circumstances that
affect the exercise of federal commerce power.  It is sheer sophistry
to respond, as APTA does (Br. 32 n.49), that the public transit
provisions of the FLSA became unconstitutional on the date National
League of Cities was decided.  Undoubtedly that decision marked a
significant departure in this Court's Tenth amendment jurisprudence.
But APTA nowhere takes issue with our observation (Br. 49) that the
transit provisions of the FLSA were valid when enacted, even under the
law as established in National League of Cities.

   /10/ Appellees have, for the third time (see Gov't Reply Mem. at
the jurisdictional stage 2 & n.1), pressed their argument (APTA Br.
46-47;  SAMTA Br. 47-50) that the public transit provisions of the
FLSA are not severable from the applications of the Act that were
invalidated in National League of Cities.  We have responded to this
argument in our Reply Memorandum at the jurisdictional stage (at 2-5).
 It is wholly irrelevant, in this regard, whether SAMTA itself was
subject to the 1966 FLSA amendments (compare SAMTA Br. 49 n.41).  Even
if it were not, Congress's intention to bring transit employment under
the umbrella of the FLSA independently of its application to other
public employees is readily apparent from the 1966 and 1974 FLSA
amendments, which made special provision for covering transit
employees (see Gov't Br. 2-4).  In fact, however, the 1966 amendments
to the FLSA covered employees of a local transit system "if the rates
and services of such (system) are subject to regulation by a state or
local agency (regardless of whether or not such (system) is public or
private or operated for profit or not for profit)." 29 U.S.C. (1970
ed.) 203(r)(2).  There is no warrant for reading this language to
exclude from FLSA coverage transit systems operated by local
government entities that regulated their own fares and services.