528 U.S. 62 - Kimel v. Florida Board of Regents

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE ELEVENTH CIRCUIT

[January 11, 2000]

Justice OConnor delivered the opinion of the Court.

The Age Discrimination in Employment Act of 1967 (ADEA or Act), 81 Stat. 602, as amended, 29 U.S.C. 621 et seq. (1994 ed. and Supp. III), makes it unlawful for an employer, including a State, to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual a because of such individuals age. 29 U.S.C. 623(a)(1). In these cases, three sets of plaintiffs filed suit under the Act, seeking money damages for their state employers alleged discrimination on the basis of age. In each case, the state employer moved to dismiss the suit on the basis of its Eleventh Amendment immunity. The District Court in one case granted the motion to dismiss, while in each of the remaining cases the District Court denied the motion. Appeals in the three cases were consolidated before the Court of Appeals for the Eleventh Circuit, which held that the ADEA does not validly abrogate the States Eleventh Amendment immunity. In these cases, we are asked to consider whether the ADEA contains a clear statement of Congress intent to abrogate the States Eleventh Amendment immunity and, if so, whether the ADEA is a proper exercise of Congress constitutional authority. We conclude that the ADEA does contain a clear statement of Congress intent to abrogate the States immunity, but that the abrogation exceeded Congress authority under 5 of the Fourteenth Amendment.

* A

The ADEA makes it unlawful for an employer to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individuals age. 29 U.S.C. 623(a)(1). The Act also provides several exceptions to this broad prohibition. For example, an employer may rely on age where it is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business. 623(f)(1). The Act also permits an employer to engage in conduct otherwise prohibited by 623(a)(1) if the employers action is based on reasonable factors other than age, 623(f)(1), or if the employer discharge[s] or otherwise discipline[s] an individual for good cause, 623(f)(3). Although the Acts prohibitions originally applied only to individuals at least forty years of age but less than sixty-five years of age, 81 Stat. 607, 29 U.S.C. 631 (1964 ed., Supp. III), Congress subsequently removed the upper age limit, and the Act now covers individuals age 40 and over, 29 U.S.C. 631(a). Any person aggrieved by an employers violation of the Act may bring a civil action in any court of competent jurisdiction for legal or equitable relief. 626(c)(1). Section 626(b) also permits aggrieved employees to enforce the Act through certain provisions of the Fair Labor Standards Act of 1938 (FLSA), and the ADEA specifically incorporates 16(b) of the FLSA, 29 U.S.C. 216(b).

Since its enactment, the ADEAs scope of coverage has been expanded by amendment. Of particular importance to these cases is the Acts treatment of state employers and employees. When first passed in 1967, the ADEA applied only to private employers. See 29 U.S.C. 630(b) (1964 ed., Supp. III) (defining term employer to exclude the United States, a corporation wholly owned by the Government of the United States, or a State or political subdivision thereof ). In 1974, in a statute consisting primarily of amendments to the FLSA, Congress extended application of the ADEAs substantive requirements to the States. Fair Labor Standards Amendments of 1974 (1974 Act), 28, 88 Stat. 74. Congress accomplished that expansion in scope by a simple amendment to the definition of employer contained in 29 U.S.C. 630(b): The term [employer] also means a a State or political subdivision of a State and any agency or instrumentality of a State or a political subdivision of a State a . Congress also amended the ADEAs definition of employee, still defining the term to mean an individual employed by any employer, but excluding elected officials and appointed policymakers at the state and local levels. 630(f). In the same 1974 Act, Congress amended 29 U.S.C. 216(b), the FLSA enforcement provision incorporated by reference into the ADEA. 88 Stat. 61. Section 216(b) now permits an individual to bring a civil action against any employer (including a public agency) in any Federal or State court of competent jurisdiction. Section 203(x) defines [p]ublic agency to include the Government of a State or political subdivision thereof, and any agency of a a State, or a political subdivision of a State. Finally, in the 1974 Act, Congress added a provision prohibiting age discrimination generally in employment at the Federal Government. 88 Stat. 74, 29 U.S.C. 633a (1994 ed. and Supp. III). Under the current ADEA, mandatory age limits for law enforcement officers and firefightersat federal, state, and local levelsare exempted from the statutes coverage. 5 U.S.C. 3307(d), (e); 29 U.S.C. 623(j) (1994 ed., Supp. III).

In December 1994, Roderick MacPherson and Marvin Narz, ages 57 and 58 at the time, filed suit under the ADEA against their employer, the University of Montevallo, in the United States District Court for the Northern District of Alabama. In their complaint, they alleged that the university had discriminated against them on the basis of their age, that it had retaliated against them for filing discrimination charges with the Equal Employment Opportunity Commission (EEOC), and that its College of Business, at which they were associate professors, employed an evaluation system that had a disparate impact on older faculty members. MacPherson and Narz sought declaratory and injunctive relief, backpay, promotions to full professor, and compensatory and punitive damages. App. 2125. The University of Montevallo moved to dismiss the suit for lack of subject matter jurisdiction, contending it was barred by the Eleventh Amendment. No party disputes the District Courts holding that the University is an instrumentality of the State of Alabama. On September 9, 1996, the District Court granted the Universitys motion. MacPherson v. University of Montevallo, Civ. Action No. 94AR2962S (ND Ala., Sept. 9, 1996), App. to Pet. for Cert. in No. 98796, pp. 63a71a. The court determined that, although the ADEA contains a clear statement of Congress intent to abrogate the States Eleventh Amendment immunity, Congress did not enact or extend the ADEA under its Fourteenth Amendment 5 enforcement power. Id., at 67a, 69a70a. The District Court therefore held that the ADEA did not abrogate the States Eleventh Amendment immunity. Id., at 71a.

In April 1995, a group of current and former faculty and librarians of Florida State University, including J. Daniel Kimel, Jr., the named petitioner in one of todays cases, filed suit against the Florida Board of Regents in the United States District Court for the Northern District of Florida. Complaint and Demand for Jury Trial in No. 95CV40194, 1 Record, Doc. No. 2. The complaint was subsequently amended to add as plaintiffs current and former faculty and librarians of Florida International University. App. 41. The plaintiffs, all over age 40, alleged that the Florida Board of Regents refused to require the two state universities to allocate funds to provide previously agreed upon market adjustments to the salaries of eligible university employees. The plaintiffs contended that the failure to allocate the funds violated both the ADEA and the Florida Civil Rights Act of 1992, Fla. Stat. 760.01 et seq. (1997 and Supp. 1998), because it had a disparate impact on the base pay of employees with a longer record of service, most of whom were older employees. App. 4245. The plaintiffs sought backpay, liquidated damages, and permanent salary adjustments as relief. Id., at 46. The Florida Board of Regents moved to dismiss the suit on the grounds of Eleventh Amendment immunity. On May 17, 1996, the District Court denied the motion, holding that Congress expressed its intent to abrogate the States Eleventh Amendment immunity in the ADEA, and that the ADEA is a proper exercise of congressional authority under the Fourteenth Amendment. No. TCA 9540194MMP (ND Fla., May 17, 1996), App. to Pet. for Cert. in No. 98796, pp. 57a62a.

In May 1996, Wellington Dickson filed suit against his employer, the Florida Department of Corrections, in the United States District Court for the Northern District of Florida. Dickson alleged that the state employer failed to promote him because of his age and because he had filed grievances with respect to the alleged acts of age discrimination. Dickson sought injunctive relief, backpay, and compensatory and punitive damages. App. 83109. The Florida Department of Corrections moved to dismiss the suit on the grounds that it was barred by the Eleventh Amendment. The District Court denied that motion on November 5, 1996, holding that Congress unequivocally expressed its intent to abrogate the States Eleventh Amendment immunity in the ADEA, and that Congress had authority to do so under 5 of the Fourteenth Amendment. Dickson v. Florida Dept. of Corrections, No. 5:9cv207RH (ND Fla., Nov. 5, 1996), App. to Pet. for Cert. in No. 98796, pp. 72a76a.

The plaintiffs in the MacPherson case, and the state defendants in the Kimel and Dickson cases, appealed to the Court of Appeals for the Eleventh Circuit. The United States also intervened in all three cases to defend the ADEAs abrogation of the States Eleventh Amendment immunity. The Court of Appeals consolidated the appeals and, in a divided panel opinion, held that the ADEA does not abrogate the States Eleventh Amendment immunity. 139 F.3d 1426, 1433 (1998). Judge Edmondson, although stating that he believed good reason exists to doubt that the ADEA was (or could have been properly) enacted pursuant to the Fourteenth Amendment, id., at 1430, rested his opinion on the ADEAs lack of unmistakably clear language evidencing Congress intent to abrogate the States sovereign immunity. Ibid. He noted that the ADEA lacks any reference to the Eleventh Amendment or to the States sovereign immunity and does not contain, in one place, a plain statement that States can be sued by individuals in federal court. Id., at 14301431. Judge Cox concurred in Judge Edmondsons ultimate conclusion that the States are immune from ADEA suits brought by individuals in federal court. Id., at 1444. Judge Cox, however, chose not to address the thorny issue of Congresss intent, id., at 1445, but instead found that Congress lacks the power under 5 of the Fourteenth Amendment to abrogate the States Eleventh Amendment immunity under the ADEA. Ibid. He concluded that the ADEA confers rights far more extensive than those the Fourteenth Amendment provides, id., at 1446, and that Congress did not enact the ADEA as a proportional response to any widespread violation of the elderlys constitutional rights. Id., at 1447. Chief Judge Hatchett dissented from both grounds. Id., at 1434.

We granted certiorari, 525 U.S. 1121 (1999), to resolve a conflict among the Federal Courts of Appeals on the question whether the ADEA validly abrogates the States Eleventh Amendment immunity. Compare Cooper v. New York State Office of Mental Health, 162 F.3d 770 (CA2 1998) (holding that the ADEA does validly abrogate the States Eleventh Amendment immunity), cert. pending, No. 981524; Migneault v. Peck, 158 F.3d 1131 (CA10 1998) (same), cert. pending, No. 981178; Coger v. Board of Regents of the State of Tenn., 154 F.3d 296 (CA6 1998) (same), cert. pending, No. 98821; Keeton v. University of Nev. System, 150 F.3d 1055 (CA9 1998) (same); Scott v. University of Miss., 148 F.3d 493 (CA5 1998) (same); and Goshtasby v. Board of Trustees of the Univ. of Ill., 141 F.3d 761 (CA7 1998) (same), with Humenansky v. Regents of Univ. of Minn., 152 F.3d 822 (CA8 1998) (holding that the ADEA does not validly abrogate the States Eleventh Amendment immunity), cert. pending, No. 981235; and 139 F.3d 1426 (CA11 1998) (case below). II

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

Although todays cases concern suits brought by citizens against their own States, this Court has long aeunderstood the Eleventh Amendment to stand not so much for what it says, but for the presupposition a which it confirms. Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54 (1996) (quoting Blatchford v. Native Village of Noatak, 501 U.S. 775, 779 (1991)). Accordingly, for over a century now, we have made clear that the Constitution does not provide for federal jurisdiction over suits against nonconsenting States. College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., 527 U.S. ____, ____ (1999) (slip op., at 23); Seminole Tribe, supra, at 54; see Hans v. Louisiana, 134 U.S. 1, 15 (1890). Petitioners nevertheless contend that the States of Alabama and Florida must defend the present suits on the merits because Congress abrogated their Eleventh Amendment immunity in the ADEA. To determine whether petitioners are correct, we must resolve two predicatequestions: first, whether Congress unequivocally expressed its intent to abrogate that immunity; and second, if it did, whether Congress acted pursuant to a valid grant of constitutional authority. Seminole Tribe, supra, at 55.

To determine whether a federal statute properly subjects States to suits by individuals, we apply a simple but stringent test: aeCongress may abrogate the States constitutionally secured immunity from suit in federal court only by making its intention unmistakably clear in the language of the statute. Dellmuth v. Muth, 491 U.S. 223, 228 (1989) (quoting Atascadero State Hospital v. Scanlon, 473 U.S. 234, 242 (1985)). We agree with petitioners that the ADEA satisfies that test. The ADEA states that its provisions shall be enforced in accordance with the powers, remedies, and procedures provided in sections 211(b), 216 (except for subsection (a) thereof), and 217 of this title, and subsection (c) of this section. 29 U.S.C. 626(b). Section 216(b), in turn, clearly provides for suits by individuals against States. That provision authorizes employees to maintain actions for backpay against any employer (including a public agency) in any Federal or State court of competent jurisdiction a . Any doubt concerning the identity of the public agency defendant named in 216(b) is dispelled by looking to 203(x), which defines the term to include the government of a State or political subdivision thereof, and any agency of a a State, or a political subdivision of a State. Read as a whole, the plain language of these provisions clearly demonstrates Congress intent to subject the States to suit for money damages at the hands of individual employees.

Respondents maintain that these statutory sections are less than unmistakably clear for two reasons. Brief for Respondents 15. First, they note that the ADEA already contains its own enforcement provision, 626(c)(1), which provides in relevant part that [a]ny person aggrieved may bring a civil action in any court of competent jurisdiction for such legal or equitable relief as will effectuate the purposes of this chapter. Respondents claim that the existence of 626(c)(1) renders Congress intent to incorporate the clear statement of abrogation in 216(b), the FLSAs enforcement provision, ambiguous. The text of the ADEA forecloses respondents argument. Section 626(b) clearly states that the ADEA shall be enforced in accordance with the powers, remedies, and procedures provided in [section 216(b)] and subsection (c) of this section. 626(b) (emphasis added). In accord with that statutory language, we have explained repeatedly that 626(b) incorporates the FLSAs enforcement provisions, and that those remedial options operate together with 626(c)(1). See McKennon v. Nashville Banner Publishing Co., 513 U.S. 352, 357 (1995) ([The ADEAs] remedial provisions incorporate by reference the provisions of the Fair Labor Standards Act of 1938); Hoffman-La Roche Inc. v. Sperling, 493 U.S. 165, 167 (1989) ([T]he ADEA incorporates enforcement provisions of the Fair Labor Standards Act of 1938, and provides that the ADEA shall be enforced using certain of the powers, remedies, and procedures of the FLSA (citation omitted)); Lorillard v. Pons, 434 U.S. 575, 582 (1978) ([B]ut for those changes Congress expressly made [in the ADEA], it intended to incorporate fully the remedies and procedures of the FLSA). Respondents argument attempts to create ambiguity where, according to the statutes text and this Courts repeated interpretations thereof, there is none.

Respondents next point to the phrase court of competent jurisdiction in 216(b), and contend that it makes Congress intent to abrogate less than clear. Relying on our decision in the distinct context of a state waiver of sovereign immunity, Kennecott Copper Corp. v. State Tax Commn, 327 U.S. 573 (1946), respondents maintain that perhaps Congress simply intended to permit an ADEA suit against a State only in those cases where the State previously has waived its Eleventh Amendment immunity to suit. We disagree. Our decision in Kennecott Copper must be read in context. The petitioner there contended that Utah had waived its Eleventh Amendment immunity to suit in federal court through a state statute that authorized taxpayers to pay their taxes under protest and aethereafter bring an action in any court of competent jurisdiction for the return thereof a . Id., at 575, n. 1 (quoting Utah Code Ann. 80576 (1943)). Although the statute undoubtedly provided for suit against the State of Utah in its own courts, we held that the statute fell short of the required clear declaration by a State of its consent to be sued in the federal courts. 327 U.S., at 579580 (emphasis added). Section 216(b) contains no such ambiguity. The statute authorizes employee suits against States in any Federal or State court of competent jurisdiction. 216(b) (emphasis added). That language eliminates the ambiguity identified in Kennecott Copperwhether Utah intended to permit suits against the sovereign in state court only, or in state and federal court. Under 216(b), the answer to that question is clearactions may be maintained in federal and state court. That choice of language sufficiently indicates Congress intent, in the ADEA, to abrogate the States Eleventh Amendment immunity to suits by individuals.

Although Justice Thomas concedes in his opinion that our cases have never required that Congress make its clear statement in a single section or in statutory provisions enacted at the same time, post, at 7, he concludes that the ADEA lacks the requisite clarity because of the sequence of events surrounding the enactment and amendment of 216(b) and 626(b), post, at 4. Justice Thomas states that he is unwilling to assume that when Congress amended 216(b) in 1974, it recognized the consequences that amendment would have for the ADEA. Post, at 5. We respectfully disagree. The fact that Congress amended the ADEA itself in the same 1974 Act makes it more than clear that Congress understood the consequences of its actions. Indeed, Congress amended 216(b) to provide for suits against States in precisely the same Act in which it extended the ADEAs substantive requirements to the States. See 1974 Act, 6(d)(1), 88 Stat. 61 (amending 216(b)); 28(a), 88 Stat. 74 (extending ADEA to the States). Those provisions confirm for us that the effect on the ADEA of the 216(b) amendment was not mere happenstance. In any event, we have never held that Congress must speak with different gradations of clarity depending on the specific circumstances of the relevant legislation (e.g., amending incorporated provisions as opposed to enacting a statute for the first time). The clear statement inquiry focuses on what Congress did enact, not when it did so. We will not infer ambiguity from the sequence in which a clear textual statement is added to a statute.

We also disagree with Justice Thomas remaining points, see post, at 712. Although the ADEA does contain its own enforcement provision in 626(c)(1), the text of 626(b) acknowledges 626(c)(1)s existence and makes clear that the ADEA also incorporates 216(b), save as indicated otherwise in 626(b)s proviso. See 626(b) (The provisions of this chapter shall be enforced in accordance with the powers, remedies, and procedures provided in sectio[n] a 216 (except for subsection (a) thereof) a and subsection (c) of this section (emphasis added)). We fail to see how the interpretation suggested by Justice Thomas, under which 626(b) would carry over only those 216(b) embellishments not already provided for in 626(c)(1) except for the authorization of suits against States, see post, at 9, could be a permissible one. To accept that interpretation, for example, one would have to conclude that Congress intended to incorporate only the portion of 216(b)s third sentence that provides for collective actions, but not the part of the very same sentence that authorizes suits against States. See 216(b) (An action to recover the liability prescribed in either of the preceding sentences may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated).

Justice Thomas also concludes that 216(b) itself fails the clear statement test. Post, at 1012. As we have already explained, the presence of the word competent in 216(b) does not render that provision less than unmistakably clear. See supra, at 1011. Justice Thomas reliance on a single phrase from our decision in Employees of Dept. of Public Health and Welfare of Mo. v. Department of Public Health and Welfare of Mo., 411 U.S. 279 (1973), see post, at 11, as support for the contrary proposition is puzzling, given his separate argument with respect to 6(d)(2)(A) of the 1974 Act. Crucial to Justice Thomas argument on that front is his acknowledgement that Congress did intend in the 1974 amendments to permit FLSA plaintiffs who had been frustrated by state defendants invocation of Eleventh Amendment immunity under Employees to avail themselves of the newly amended 216(b). Post, at 5; see also post, at 1112. We agree with the implication of that statement: In response to Employees, Congress clearly intended through the newly amended 216(b) to abrogate the States sovereign immunity. In light of our conclusion that Congress unequivocally expressed its intent to abrogate the States Eleventh Amendment immunity, we now must determine whether Congress effectuated that abrogation pursuant to a valid exercise of constitutional authority.

* This is not the first time we have considered the constitutional validity of the 1974 extension of the ADEA to state and local governments. In EEOC v. Wyoming, 460 U.S. 226, 243 (1983), we held that the ADEA constitutes a valid exercise of Congress power [t]o regulate Commerce a among the several States, Art. I, 8, cl. 3, and that the Act did not transgress any external restraints imposed on the commerce power by the Tenth Amendment. Because we found the ADEA valid under Congress Commerce Clause power, we concluded that it was unnecessary to determine whether the Act also could be supported by Congress power under 5 of the Fourteenth Amendment. Wyoming, 460 U.S., at 243. But see id., at 259263 (Burger, C. J., dissenting). Resolution of todays cases requires us to decide that question.

In Seminole Tribe, we held that Congress lacks power under Article I to abrogate the States sovereign immunity. 517 U.S., at 7273. Even when the Constitution vests in Congress complete lawmaking authority over a particular area, the Eleventh Amendment prevents congressional authorization of suits by private parties against unconsenting States. Id., at 72. Last Term, in a series of three decisions, we reaffirmed that central holding of Seminole Tribe. See College Savings Bank, 527 U.S., at ____ (slip op., at 4); Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U.S. ____, ____ (1999) (slip op., at 67); Alden v. Maine, 527 U.S. ____, ____ (1999) (slip op., at 12). Indeed, in College Savings Bank, we rested our decision to overrule the constructive waiver rule of Parden v. Terminal R. Co. of Ala. Docks Dept., 377 U.S. 184 (1964), in part, on our Seminole Tribe holding. See College Savings Bank, supra, at ____ (slip op., at 16) (Recognizing a congressional power to exact constructive waivers of sovereign immunity through the exercise of Article I powers would also, as a practical matter, permit Congress to circumvent the antiabrogation holding of Seminole Tribe). Under our firmly established precedent then, if the ADEA rests solely on Congress Article I commerce power, the private petitioners in todays cases cannot maintain their suits against their state employers.

Justice Stevens disputes that well-established precedent again. Compare post, at 17, with Alden, supra, at ____ (slip op., at 158) (Souter, J., dissenting); College Savings Bank, 527 U.S., at ____ (slip op., at 2, n. 2) (Stevens, J., dissenting); id., at ____ (slip op., at 713) (Breyer, J., dissenting); Florida Prepaid, supra, at ____ (slip op., at 1819) (Stevens, J., dissenting); Seminole Tribe, 517 U.S., at 76100 (Stevens, J., dissenting); id., at 100185 (Souter, J., dissenting). In Alden, we explained that, [a]lthough the sovereign immunity of the States derives at least in part from the common-law tradition, the structure and history of the Constitution make clear that the immunity exists today by constitutional design. 527 U.S., at ____ (slip op., at 2324). For purposes of todays decision, it is sufficient to note that we have on more than one occasion explained the substantial reasons for adhering to that constitutional design. See id., at ____ (slip op., at 245); College Savings Bank, supra, at ____ (slip op., at 12, 2024); Seminole Tribe, supra, at 5455, 5973; Pennsylvania v. Union Gas Co., 491 U.S. 1, 3042 (1989) (Scalia, J., concurring in part and dissenting in part). Indeed, the present dissenters refusal to accept the validity and natural import of decisions like Hans, rendered over a full century ago by this Court, makes it difficult to engage in additional meaningful debate on the place of state sovereign immunity in the Constitution. Compare Hans, 134 U.S., at 10, 1416, with post, at 56. Today we adhere to our holding in Seminole Tribe: Congress powers under Article I of the Constitution do not include the power to subject States to suit at the hands of private individuals.

Section 5 of the Fourteenth Amendment, however, does grant Congress the authority to abrogate the States sovereign immunity. In Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), we recognized that the Eleventh Amendment, and the principle of state sovereignty which it embodies, are necessarily limited by the enforcement provisions of 5 of the Fourteenth Amendment. Id., at 456 (citation omitted). Since our decision in Fitzpatrick, we have reaffirmed the validity of that congressional power on numerous occasions. See, e.g., College Savings Bank, supra, at ____ (slip op., at 2); Florida Prepaid, supra, at ____ (slip op., at 78); Alden, supra, at ____ (slip op., at 4648); Seminole Tribe, supra, at 59. Accordingly, the private petitioners in these cases may maintain their ADEA suits against the States of Alabama and Florida if, and only if, the ADEA is appropriate legislation under 5.

The Fourteenth Amendment provides, in relevant part:

Section 1. a No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

. . . . .

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

As we recognized most recently in City of Boerne v. Flores, 521 U.S. 507, 517 (1997), 5 is an affirmative grant of power to Congress. It is for Congress in the first instance to aedetermin[e] whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment, and its conclusions are entitled to much deference. Id., at 536 (quoting Katzenbach v. Morgan, 384 U.S. 641, 651 (1966)). Congress 5 power is not confined to the enactment of legislation that merely parrots the precise wording of the Fourteenth Amendment. Rather, Congress power to enforce the Amendment includes the authority both to remedy and to deter violation of rights guaranteed thereunder by prohibiting a somewhat broader swath of conduct, including that which is not itself forbidden by the Amendments text. 521 U.S., at 518.

Nevertheless, we have also recognized that the same language that serves as the basis for the affirmative grant of congressional power also serves to limit that power. For example, Congress cannot decree the substance of the Fourteenth Amendments restrictions on the States. a It has been given the power aeto enforce, not the power to determine what constitutes a constitutional violation. Id., at 519 (emphases added). The ultimate interpretation and determination of the Fourteenth Amendments substantive meaning remains the province of the Judicial Branch. Id., at 536. In City of Boerne, we noted that the determination whether purportedly prophylactic legislation constitutes appropriate remedial legislation, or instead effects a substantive redefinition of the Fourteenth Amendment right at issue, is often difficult. Id., at 519520. The line between the two is a fine one. Accordingly, recognizing that Congress must have wide latitude in determining where [that line] lies, we held that [t]here must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end. Id., at 520. In City of Boerne, we applied that congruence and proportionality test and held that the Religious Freedom Restoration Act of 1993 (RFRA) was not appropriate legislation under 5. We first noted that the legislative record contained very little evidence of the unconstitutional conduct purportedly targeted by RFRAs substantive provisions. Rather, Congress had uncovered only anecdotal evidence that, standing alone, did not reveal a widespread pattern of religious discrimination in this country. Id., at 531. Second, we found that RFRA is so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior. Id., at 532.

Last Term, we again had occasion to apply the congruence and proportionality test. In Florida Prepaid, we considered the validity of the Eleventh Amendment abrogation provision in the Patent and Plant Variety Protection Remedy Clarification Act (Patent Remedy Act). We held that the statute, which subjected States to patent infringement suits, was not appropriate legislation under 5 of the Fourteenth Amendment. The Patent Remedy Act failed to meet our congruence and proportionality test first because Congress identified no pattern of patent infringement by the States, let alone a pattern of constitutional violations. 527 U.S., at ____ (slip op., at 11) (emphasis added). Moreover, because it was unlikely that many of the acts of patent infringement affected by the statute had any likelihood of being unconstitutional, we concluded that the scope of the Act was out of proportion to its supposed remedial or preventive objectives. Id., at ____ (slip op., at 1819). Instead, [t]he statutes apparent and more basic aims were to provide a uniform remedy for patent infringement and to place States on the same footing as private parties under that regime. Id., at ____ (slip op., at 19). While we acknowledged that such aims may be proper congressional concerns under Article I, we found them insufficient to support an abrogation of the States Eleventh Amendment immunity after Seminole Tribe. Florida Prepaid, supra, at ____ (slip op., at 1920). C

Applying the same congruence and proportionality test in these cases, we conclude that the ADEA is not appropriate legislation under 5 of the Fourteenth Amendment. Initially, the substantive requirements the ADEA imposes on state and local governments are disproportionate to any unconstitutional conduct that conceivably could be targeted by the Act. We have considered claims of unconstitutional age discrimination under the Equal Protection Clause three times. See Gregory v. Ashcroft, 501 U.S. 452 (1991); Vance v. Bradley, 440 U.S. 93 (1979); Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307 (1976) (per curiam). In all three cases, we held that the age classifications at issue did not violate the Equal Protection Clause. See Gregory, supra, at 473; Bradley, supra, at 102103, n. 20, 108112; Murgia, supra, at 317. Age classifications, unlike governmental conduct based on race or gender, cannot be characterized as so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy. Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 440 (1985). Older persons, again, unlike those who suffer discrimination on the basis of race or gender, have not been subjected to a aehistory of purposeful unequal treatment. Murgia, supra, at 313 (quoting San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 28 (1973)). Old age also does not define a discrete and insular minority because all persons, if they live out their normal life spans, will experience it. 427 U.S., at 313314. Accordingly, as we recognized in Murgia, Bradley, and Gregory, age is not a suspect classification under the Equal Protection Clause. See, e.g., Gregory, supra, at 470; Bradley, supra, at 97; Murgia, supra, at 313314.

States may discriminate on the basis of age without offending the Fourteenth Amendment if the age classification in question is rationally related to a legitimate state interest. The rationality commanded by the Equal Protection Clause does not require States to match age distinctions and the legitimate interests they serve with razorlike precision. As we have explained, when conducting rational basis review we will not overturn such [government action] unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the [governments] actions were irrational. Bradley, supra, at 97. In contrast, when a State discriminates on the basis of race or gender, we require a tighter fit between the discriminatory means and the legitimate ends they serve. See, e.g., Adarand Constructors, Inc. v. Pe±a, 515 U.S. 200, 227 (1995) ([Racial] classifications are constitutional only if they are narrowly tailored measures that further compelling governmental interests); Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982) (holding that gender classifications are constitutional only if they serve aeimportant governmental objectives and a the discriminatory means employed are aesubstantially related to the achievement of those objectives (citation omitted)). Under the Fourteenth Amendment, a State may rely on age as a proxy for other qualities, abilities, or characteristics that are relevant to the States legitimate interests. The Constitution does not preclude reliance on such generalizations. That age proves to be an inaccurate proxy in any individual case is irrelevant. [W]here rationality is the test, a State aedoes not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. Murgia, supra, at 316 (quoting Dandridge v. Williams, 397 U.S. 471, 485 (1970)). Finally, because an age classification is presumptively rational, the individual challenging its constitutionality bears the burden of proving that the facts on which the classification is apparently based could not reasonably be conceived to be true by the governmental decisionmaker. Bradley, supra, at 111; see Gregory, supra, at 473.

Our decisions in Murgia, Bradley, and Gregory illustrate these principles. In all three cases, we held that the States reliance on broad generalizations with respect to age did not violate the Equal Protection Clause. In Murgia, we upheld against an equal protection challenge a Massachusetts statute requiring state police officers to retire at age 50. The State justified the provision on the ground that the age classification assured the State of the physical preparedness of its officers. 427 U.S., at 314315. Although we acknowledged that Officer Murgia himself was in excellent physical health and could still perform the duties of a state police officer, we found that the statute clearly met the requirements of the Equal Protection Clause. Id., at 311, 314317. That the State chooses not to determine fitness more precisely through individualized testing after age 50 [does not prove] that the objective of assuring physical fitness is not rationally furthered by a maximum-age limitation. Id., at 316. In Bradley, we considered an equal protection challenge to a federal statute requiring Foreign Service officers to retire at age 60. We explained: If increasing age brings with it increasing susceptibility to physical difficulties, a the fact that individual Foreign Service employees may be able to perform past age 60 does not invalidate [the statute] any more than did the similar truth undercut compulsory retirement at age 50 for uniformed state police in Murgia. 440 U.S., at 108. Finally, in Gregory, we upheld a provision of the Missouri Constitution that required judges to retire at age 70. Noting that the Missouri provision was based on a generalization about the effect of old age on the ability of individuals to serve as judges, we acknowledged that [i]t is far from true that all judges suffer significant deterioration in performance at age 70, [i]t is probably not true that most do, and [i]t may not be true at all. 501 U.S., at 473. Nevertheless, because Missouris age classification was subject only to rational basis review, we held that the States reliance on such imperfect generalizations was entirely proper under the Equal Protection Clause. Ibid. These decisions thus demonstrate that the constitutionality of state classifications on the basis of age cannot be determined on a person-by-person basis. Our Constitution permits States to draw lines on the basis of age when they have a rational basis for doing so at a class-based level, even if it is probably not true that those reasons are valid in the majority of cases.

Judged against the backdrop of our equal protection jurisprudence, it is clear that the ADEA is so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior. City of Boerne, 521 U.S., at 532. The Act, through its broad restriction on the use of age as a discriminating factor, prohibits substantially more state employment decisions and practices than would likely be held unconstitutional under the applicable equal protection, rational basis standard. The ADEA makes unlawful, in the employment context, all discriminat[ion] against any individual a because of such individuals age. 29 U.S.C. 623(a)(1). Petitioners, relying on the Acts exceptions, dispute the extent to which the ADEA erects protections beyond the Constitutions requirements. They contend that the Acts prohibition, considered together with its exceptions, applies only to arbitrary age discrimination, which in the majority of cases corresponds to conduct that violates the Equal Protection Clause. We disagree.

Petitioners stake their claim on 623(f)(1). That section permits employers to rely on age when it is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business. Petitioners reliance on the bona fide occupational qualification (BFOQ) defense is misplaced. Our interpretation of 623(f)(1) in Western Air Lines, Inc. v. Criswell, 472 U.S. 400 (1985), conclusively demonstrates that the defense is a far cry from the rational basis standard we apply to age discrimination under the Equal Protection Clause. The petitioner in that case maintained that, pursuant to the BFOQ defense, employers must be permitted to rely on age when such reliance has a rational basis in fact. Id., at 417. We rejected that argument, explaining that [t]he BFOQ standard adopted in the statute is one of aereasonable necessity, not reasonableness, id., at 419, and that the ADEA standard and the rational basis test are significantly different, id., at 421.

Under the ADEA, even with its BFOQ defense, the States use of age is prima facie unlawful. See 29 U.S.C. 623(a)(1); Western Air Lines, 472 U.S., at 422 (Under the Act, employers are to evaluate employees a on their merits and not their age). Application of the Act therefore starts with a presumption in favor of requiring the employer to make an individualized determination. See ibid. In Western Air Lines, we concluded that the BFOQ defense, which shifts the focus from the merits of the individual employee to the necessity for the age classification as a whole, is aemeant to be an extremely narrow exception to the general prohibition of age discrimination contained in the ADEA. Id., at 412 (citation omitted). We based that conclusion on both the restrictive language of the statutory BFOQ provision itself and the EEOCs regulation interpreting that exception. See 29 CFR 1625.6(a) (1998) (It is anticipated that this concept of a [BFOQ] will have limited scope and application. Further, as this is an exception to the Act it must be narrowly construed). To succeed under the BFOQ defense, we held that an employer must demonstrate either a substantial basis for believing that all or nearly all employees above an age lack the qualifications required for the position, or that reliance on the age classification is necessary because it is highly impractical for the employer to insure by individual testing that its employees will have the necessary qualifications for the job. 472 U.S., at 422423 (emphases added). Measured against the rational basis standard of our equal protection jurisprudence, the ADEA plainly imposes substantially higher burdens on state employers. Thus, although it is true that the existence of the BFOQ defense makes the ADEAs prohibition of age discrimination less than absolute, the Acts substantive requirements nevertheless remain at a level akin to our heightened scrutiny cases under the Equal Protection Clause.

Petitioners also place some reliance on the next clause in 623(f)(1), which permits employers to engage in conduct otherwise prohibited by the Act where the differentiation is based on reasonable factors other than age. This exception confirms, however, rather than disproves, the conclusion that the ADEAs protection extends beyond the requirements of the Equal Protection Clause. The exception simply makes clear that [t]he employer cannot rely on age as a proxy for an employees remaining characteristics, such as productivity, but must instead focus on those factors directly. Hazen Paper Co. v. Biggins, 507 U.S. 604, 611 (1993). Under the Constitution, in contrast, States may rely on age as a proxy for other characteristics. See Gregory, 501 U.S., at 473 (generalization about ability to serve as judges at age 70); Bradley, 440 U.S., at 108109, 112 (generalization about ability to serve as Foreign Service officer at age 60); Murgia, 427 U.S., at 314317 (generalization about ability to serve as state police officer at age 50). Section 623(f)(1), then, merely confirms that Congress, through the ADEA, has effectively elevated the standard for analyzing age discrimination to heightened scrutiny.

That the ADEA prohibits very little conduct likely to be held unconstitutional, while significant, does not alone provide the answer to our 5 inquiry. Difficult and intractable problems often require powerful remedies, and we have never held that 5 precludes Congress from enacting reasonably prophylactic legislation. Our task is to determine whether the ADEA is in fact just such an appropriate remedy or, instead, merely an attempt to substantively redefine the States legal obligations with respect to age discrimination. One means by which we have made such a determination in the past is by examining the legislative record containing the reasons for Congress action. See, e.g., Florida Prepaid, 527 U.S., at ________ (slip op., at 1118); City of Boerne, 521 U.S., at 530531. The appropriateness of remedial measures must be considered in light of the evil presented. Strong measures appropriate to address one harm may be an unwarranted response to another, lesser one. Id., at 530 (citing South Carolina v. Katzenbach, 383 U.S. 301, 308 (1966)).

Our examination of the ADEAs legislative record confirms that Congress 1974 extension of the Act to the States was an unwarranted response to a perhaps inconsequential problem. Congress never identified any pattern of age discrimination by the States, much less any discrimination whatsoever that rose to the level of constitutional violation. The evidence compiled by petitioners to demonstrate such attention by Congress to age discrimination by the States falls well short of the mark. That evidence consists almost entirely of isolated sentences clipped from floor debates and legislative reports. See, e.g., S. Rep. No. 93846, p. 112 (1974); S. Rep. No. 93690, p. 56 (1974); H. R. Rep. No. 93913, pp. 4041 (1974); S. Rep. No. 93300, p. 57 (1973); Senate Special Committee on Aging, Improving the Age Discrimination Law, 93d Cong., 1st Sess., 14 (Comm. Print 1973); 113 Cong. Rec. 34742 (1967) (remarks of Sen. Steiger); id., at 34749 (remarks of Rep. Donohue); 110 Cong. Rec. 13490 (1964) (remarks of Sen. Smathers); id., at 9912 (remarks of Sen. Sparkman); id., at 2596 (remarks of Rep. Beckworth). The statements of Senator Bentsen on the floor of the Senate are indicative of the strength of the evidence relied on by petitioners. See, e.g., 118 Cong. Rec. 24397 (1972) (stating that there is ample evidence that age discrimination is broadly practiced in government employment, but relying on newspaper articles about federal employees); id., at 7745 (Letters from my own State have revealed that State and local governments have also been guilty of discrimination toward older employees); ibid. ([T]here are strong indications that the hiring and firing practices of governmental units discriminate against the elderly a).

Petitioners place additional reliance on Congress consideration of a 1966 report prepared by the State of California on age discrimination in its public agencies. See Hearings on H. R. 3651 et al. before the Subcommittee on Labor of the House of Representatives Committee on Education and Labor, 90th Cong., 1st Sess., pp. 161201 (1967) (Hearings) (reprinting State of California, Citizens Advisory Committee on Aging, Age Discrimination in Public Agencies (1966)). Like the assorted sentences petitioners cobble together from a decades worth of congressional reports and floor debates, the California study does not indicate that the State had engaged in any unconstitutional age discrimination. In fact, the report stated that the majority of the age limits uncovered in the state survey applied in the law enforcement and firefighting occupations. Hearings 168. Those age limits were not only permitted under California law at the time, see ibid., but are also currently permitted under the ADEA. See 5 U.S.C. 3307(d), (e); 29 U.S.C. 623(j) (1994 ed., Supp. III). Even if the California report had uncovered a pattern of unconstitutional age discrimination in the States public agencies at the time, it nevertheless would have been insufficient to support Congress 1974 extension of the ADEA to every State of the Union. The report simply does not constitute evidence that [unconstitutional age discrimination] had become a problem of national import. Florida Prepaid, supra, at ____ (slip op., at 13).

Finally, the United States argument that Congress found substantial age discrimination in the private sector, see Brief for United States 38, is beside the point. Congress made no such findings with respect to the States. Although we also have doubts whether the findings Congress did make with respect to the private sector could be extrapolated to support a finding of unconstitutional age discrimination in the public sector, it is sufficient for these cases to note that Congress failed to identify a widespread pattern of age discrimination by the States. See Florida Prepaid, 527 U.S., at ___ (slip op., at 11).

A review of the ADEAs legislative record as a whole, then, reveals that Congress had virtually no reason to believe that state and local governments were unconstitutionally discriminating against their employees on the basis of age. Although that lack of support is not determinative of the 5 inquiry, id., at ____ (slip op., at 1718); City of Boerne, 521 U.S., at 531532, Congress failure to uncover any significant pattern of unconstitutional discrimination here confirms that Congress had no reason to believe that broad prophylactic legislation was necessary in this field. In light of the indiscriminate scope of the Acts substantive requirements, and the lack of evidence of widespread and unconstitutional age discrimination by the States, we hold that the ADEA is not a valid exercise of Congress power under 5 of the Fourteenth Amendment. The ADEAs purported abrogation of the States sovereign immunity is accordingly invalid.

Our decision today does not signal the end of the line for employees who find themselves subject to age discrimination at the hands of their state employers. We hold only that, in the ADEA, Congress did not validly abrogate the States sovereign immunity to suits by private individuals. State employees are protected by state age discrimination statutes, and may recover money damages from their state employers, in almost every State of the Union.1 Those avenues of relief remain available today, just as they were before this decision.

Because the ADEA does not validly abrogate the States sovereign immunity, however, the present suits must be dismissed. Accordingly, the judgment of the Court of Appeals is affirmed.

It is so ordered.

Opinion of Stevens, J.

Justice Stevens, with whom Justice Souter, Justice Ginsburg, and Justice Breyer join, dissenting in part and concurring in part.

Congress power to regulate the American economy includes the power to regulate both the public and the private sectors of the labor market. Federal rules outlawing discrimination in the workplace, like the regulation of wages and hours or health and safety standards, may be enforced against public as well as private employers. In my opinion, Congress power to authorize federal remedies against state agencies that violate federal statutory obligations is coextensive with its power to impose those obligations on the States in the first place. Neither the Eleventh Amendment nor the doctrine of sovereign immunity places any limit on that power. See Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 165168 (1996) (Souter, J., dissenting); EEOC v. Wyoming, 460 U.S. 226, 247248 (1983) (Stevens, J., concurring).

The application of the ancient judge-made doctrine of sovereign immunity in cases like these is supposedly justified as a freestanding limit on congressional authority, a limit necessary to protect States dignity and respect from impairment by the National Government. The Framers did not, however, select the Judicial Branch as the constitutional guardian of those state interests. Rather, the Framers designed important structural safeguards to ensure that when the National Government enacted substantive law (and provided for its enforcement), the normal operation of the legislative process itself would adequately defend state interests from undue infringement. See generally Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 Colum. L. Rev. 543 (1954).

It is the Framers compromise giving each State equal representation in the Senate that provides the principal structural protection for the sovereignty of the several States. The composition of the Senate was originally determined by the legislatures of the States, which would guarantee that their interests could not be ignored by Congress.1 The Framers also directed that the House be composed of Representatives selected by voters in the several States, the consequence of which is that the states are the strategic yardsticks for the measurement of interest and opinion, the special centers of political activity, the separate geographical determinants of national as well as local politics. Id., at 546.

Whenever Congress passes a statute, it does so against the background of state law already in place; the propriety of taking national action is thus measured by the metric of the existing state norms that Congress seeks to supplement or supplant.2 The persuasiveness of any justification for overcoming legislative inertia and taking national action, either creating new federal obligations or providing for their enforcement, must necessarily be judged in reference to state interests, as expressed in existing state laws. The precise scope of federal laws, of course, can be shaped with nuanced attention to state interests. The Congress also has the authority to grant or withhold jurisdiction in lower federal courts. The burden of being haled into a federal forum for the enforcement of federal law, thus, can be expanded or contracted as Congress deems proper, which decision, like all other legislative acts, necessarily contemplates state interests. Thus, Congress can use its broad range of flexible legislative tools to approach the delicate issue of how to balance local and national interests in the most responsive and careful manner.3 It is quite evident, therefore, that the Framers did not view this Court as the ultimate guardian of the States interest in protecting their own sovereignty from impairment by burdensome federal laws.4

Federalism concerns do make it appropriate for Congress to speak clearly when it regulates state action. But when it does so, as it has in these cases,5 we can safely presume that the burdens the statute imposes on the sovereignty of the several States were taken into account during the deliberative process leading to the enactment of the measure. Those burdens necessarily include the cost of defending against enforcement proceedings and paying whatever penalties might be incurred for violating the statute. In my judgment, the question whether those enforcement proceedings should be conducted exclusively by federal agencies, or may be brought by private parties as well, is a matter of policy for Congress to decide. In either event, once Congress has made its policy choice, the sovereignty concerns of the several States are satisfied, and the federal interest in evenhanded enforcement of federal law, explicitly endorsed in Article VI of the Constitution, does not countenance further limitations. There is not a word in the text of the Constitution supporting the Courts conclusion that the judge-made doctrine of sovereign immunity limits Congress power to authorize private parties, as well as federal agencies, to enforce federal law against the States. The importance of respecting the Framers decision to assign the business of lawmaking to the Congress dictates firm resistance to the present majoritys repeated substitution of its own views of federalism for those expressed in statutes enacted by the Congress and signed by the President.

The Eleventh Amendment simply does not support the Courts view. As has been stated before, the Amendment only places a textual limitation on the diversity jurisdiction of the federal courts. See Atascadero State Hospital v. Scanlon, 473 U.S. 234, 286289 (1985) (Brennan, J., dissenting). Because the Amendment is a part of the Constitution, I have never understood how its limitation on the diversity jurisdiction of federal courts defined in Article III could be abrogated by an Act of Congress. Seminole Tribe, 517 U.S., at 93 (Stevens, J., dissenting). Here, however, private petitioners did not invoke the federal courts diversity jurisdiction; they are citizens of the same State as the defendants and they are asserting claims that arise under federal law. Thus, todays decision (relying as it does on Seminole Tribe) rests entirely on a novel judicial interpretation of the doctrine of sovereign immunity,6 which the Court treats as though it were a constitutional precept. It is nevertheless clear to me that if Congress has the power to create the federal rights that these petitioners are asserting, it must also have the power to give the federal courts jurisdiction to remedy violations of those rights, even if it is necessary to abrogate the Courts Eleventh Amendment version of the common-law defense of sovereign immunity to do so. That is the essence of the Courts holding in Pennsylvania v. Union Gas Co., 491 U.S. 1, 1323 (1989).

I remain convinced that Union Gas was correctly decided and that the decision of five Justices in Seminole Tribe to overrule that case was profoundly misguided. Despite my respect for stare decisis, I am unwilling to accept Seminole Tribe as controlling precedent. First and foremost, the reasoning of that opinion is so profoundly mistaken and so fundamentally inconsistent with the Framers conception of the constitutional order that it has forsaken any claim to the usual deference or respect owed to decisions of this Court. Stare decisis, furthermore, has less force in the area of constitutional law. See, e.g., Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406410 (1932) (Brandeis, J., dissenting). And in this instance, it is but a hollow pretense for any State to seek refuge in stare decisis protection of reliance interests. It cannot be credibly maintained that a States ordering of its affairs with respect to potential liability under federal law requires adherence to Seminole Tribe, as that decision leaves open a States liability upon enforcement of federal law by federal agencies. Nor can a State find solace in the stare decisis interest of promoting the evenhanded . . . and consistent development of legal principles. Payne v. Tennessee, 501 U.S. 808, 827 (1991). That principle is perverted when invoked to rely on sovereign immunity as a defense to deliberate violations of settled federal law. Further, Seminole Tribe is a case that will unquestionably have serious ramifications in future cases; indeed, it has already had such an effect, as in the Courts decision today and in the equally misguided opinion of Alden v. Maine, 527 U.S. ___ (1999). Further still, the Seminole Tribe decision unnecessarily forces the Court to resolve vexing questions of constitutional law respecting Congress 5 authority. Finally, by its own repeated overruling of earlier precedent, the majority has itself discounted the importance of stare decisis in this area of the law.7 The kind of judicial activism manifested in cases like Seminole Tribe, Alden v. Maine, Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U.S. ___ (1999), and College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., 527 U.S. ___ (1999), represents such a radical departure from the proper role of this Court that it should be opposed whenever the opportunity arises.

Accordingly, I respectfully dissent.

Opinion of Thomas, J.

Justice Thomas, with whom Justice Kennedy joins, concurring in part and dissenting in part.

In Atascadero State Hospital v. Scanlon, 473 U.S. 234 (1985), this Court, cognizant of the impact of an abrogation of the States Eleventh Amendment immunity from suit in federal court on the usual constitutional balance between the States and the Federal Government, reaffirmed that Congress may abrogate a only by making its intention unmistakably clear in the language of the statute. Id., at 242. This rule aeassures that the legislature has in fact faced, and intended to bring into issue, the critical matters involved in the judicial decision. Will v. Michigan Dept. of State Police, 491 U.S. 58, 65 (1989) (quoting United States v. Bass, 404 U.S. 336, 349 (1971)). And it is especially applicable when this Court deals with a statute like the Age Discrimination in Employment Act of 1967 (ADEA), whose substantive mandates extend to elevator operators, janitors, charwomen, security guards, secretaries, and the like in every office building in a States governmental hierarchy. Employees of Dept. of Public Health and Welfare of Mo. v. Department of Public Health and Welfare of Mo., 411 U.S. 279, 285 (1973). Because I think that Congress has not made its intention to abrogate unmistakably clear in the text of the ADEA, I respectfully dissent from Part III of the Courts opinion.1

* It is natural to begin the clear statement inquiry by examining those provisions that reside within the four corners of the Act in question. Private petitioners and the government correctly observe that the ADEAs substantive provisions extend to the States as employers, see 29 U.S.C. 623(a) (providing that [i]t shall be unlawful for an employer to engage in certain age discriminatory practices); 630(b) (defining employer to include a State or a political subdivision of a State); 630(f) (defining employee as an individual employed by any employer), and that the ADEA establishes an individual right-of-action provision for aggrieved persons, see 626(c)(1) (Any person aggrieved may bring a civil action in any court of competent jurisdiction for such legal or equitable relief as will effectuate the purposes of this chapter). Since, in the case of a state employee, the only possible defendant is the State, it is submitted that Congress clearly expressed its intent that a state employee may qualify as a person aggrieved under 626(c)(1) and bring suit against his state employer in federal court.

While the argument may have some logical appeal, it is squarely foreclosed by precedentwhich explains the Courts decision to employ different reasoning in finding a clear statement, see ante, at 9. In Employees, we confronted the pre-1974 version of the Fair Labor Standards Act (FLSA), which clearly extended as a substantive matter to state employers, and included the following private right-of-action provision: aeAction to recover such liability may be maintained in any court of competent jurisdiction. Employees, supra, at 283 (quoting 29 U.S.C. 216(b) (1970 ed.). We held that this language fell short of a clear statement of Congress intent to abrogate. The FLSAs substantive coverage of state employers could be given meaning through enforcement by the Secretary of Labor, which would raise no Eleventh Amendment issue, 411 U.S., at 285286, and we were reluctant to believe that Congress in pursuit of a harmonious federalism desired to treat the States so harshly by abrogating their Eleventh Amendment immunity, id., at 286. See also, e.g., Dellmuth v. Muth, 491 U.S. 223, 228 (1989) (holding that Congress had not clearly stated its intent to abrogate in a statute that authorized parties aggrieved a to aebring a civil action a in any State court of competent jurisdiction or in a district court of the United States without regard to the amount in controversy ) (quoting 20 U.S.C. 1415(e)(2) (1982 ed.)).

The ADEA is no different from the version of the FLSA we examined in Employees. It unquestionably extends as a substantive matter to state employers, but does not mention States in its right-of-action provision: Any person aggrieved may bring a civil action in any court of competent jurisdiction for such legal or equitable relief as will effectuate the purposes of this chapter. 29 U.S.C. 626(c)(1). This provision simply does not reveal Congress attention to the augmented liability and diminished sovereignty concomitant to an abrogation of Eleventh Amendment immunity. Congress, acting responsibly, would not be presumed to take such action silently. Employees, supra, at 284285.

Perhaps recognizing the obstacle posed by Employees, private petitioners and the government contend that the ADEA incorporates a clear statement from the FLSA. The ADEAs incorporating reference, which has remained constant since the enactment of the ADEA in 1967, provides: The provisions of this chapter shall be enforced in accordance with the powers, remedies, and procedures provided in sections 211(b), 216 (except for subsection (a) thereof), and 217 of this title, and subsection (c) of this section. 29 U.S.C. 626(b). It is argued that 216(b)one of the incorporated provisions from the FLSAunequivocally abrogates the States immunity from suit in federal court. That section states in relevant part that [a]n action to recover the liability prescribed in either of the preceding sentences may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction. 29 U.S.C. 216(b).

But, as noted in the above discussion of Employees, 216(b) was not always so worded. At the time the ADEA was enacted in 1967, a relatively sparse version of 216(b)which Employees held insufficient to abrogate the States immunityprovided that an [a]ction to recover such liability may be maintained in any court of competent jurisdiction. 29 U.S.C. 216(b) (1964 ed.). It was not until 1974 that Congress modified 216(b) to its current formulation. Fair Labor Standards Amendments of 1974 (1974 Amendments), 6(d)(1), 88 Stat. 61.

This sequence of events suggests, in my view, that we should approach with circumspection any theory of clear statement by incorporation. Where Congress amends an Act whose provisions are incorporated by other Acts, the bill under consideration does not necessarily mention the incorporating references in those other Acts, and so fails to inspire confidence that Congress has deliberated on the consequences of the amendment for the other Acts. That is the case here. The legislation that amended 216(b), 6(d)(1) of the 1974 Amendments, did not even acknowledge 626(b). And, given the purpose of the clear statement rule to aeassur[e] that the legislature has in fact faced the issue of abrogation, Will, 491 U.S., at 65 (quoting Bass, 404 U.S., at 349), I am unwilling to indulge the fiction that Congress, when it amended 216(b), recognized the consequences for a separate Act (the ADEA) that incorporates the amended provision.

To be sure, 28 of the 1974 Amendments, 88 Stat. 74, did modify certain provisions of the ADEA, which might suggest that Congress understood the impact of 6(d)(1) on the ADEA. See ante, at 11. But 6(d)(2)(A), another of the 1974 Amendments, suggests just the opposite. Section 6(d)(2)(A) added to the statute of limitations provision of the FLSA, 29 U.S.C. 255 a new subsection (d), which suspended the running of the statutory periods of limitation on any cause of action brought under section 16(b) of the [FLSA, 29 U.S.C. 216(b)] a on or before April 18, 1973, the date Employees was decided, until one hundred and eighty days after the effective date of [the 1974 Amendments]. The purpose of this new subsectionrevealed not only by its reference to the date Employees was decided, but also by its exception for actions in which judgment has been entered for the defendant on the grounds other than State immunity from Federal jurisdictionwas to allow FLSA plaintiffs who had been frustrated by state defendants invocation of Eleventh Amendment immunity under Employees to avail themselves of the newly amended 216(b).2 It appears, however, that Congress was oblivious to the impact of 6(d)(2)(A) on the ADEA. The new 255(d), by operation of 7(e) of the ADEA, 29 U.S.C. 626(e) (1988 ed.) (Sectio[n] 255 a of this title shall apply to actions under this chapter),3 automatically became part of the ADEA in 1974. And yet the new 255(d) could have no possible application to the ADEA because, as the Court observes, ante, at 11 (citing 28(a) of the 1974 Amendments), the ADEAs substantive mandates did not even apply to the States until the 1974 Amendments. Thus, before 1974, there were no ADEA suits against States that could be affected by 255(d)s tolling provision. If Congress had recognized this overinclusiveness problem, it likely would have amended 626(e) to incorporate only 255(a)(c). Cf. 626(b) (incorporating the powers, remedies, and procedures provided in sectio[n] a 216 (except for subsection (a) thereof) (emphasis added)). But since Congress did not do so, we are left to conclude that Congress did not clearly focus on the impact of 6(d)(2)(A) on the ADEA. And Congress insouciance with respect to the impact of 6(d)(2)(A) suggests that Congress was similarly inattentive to the impact of 6(d)(1).

Insofar as 6(d)(2)(A) is closer to 6(d)(1) in terms of space and purpose than is 28, the implication I would draw from 6(d)(2)(A) almost certainly outweighs the inference the Court would draw from 28. In any event, the notion that 28 of the 1974 Amendments evidences Congress awareness of every last ripple those amendments might cause in the ADEA is at best a permissible inference, not the unequivocal declaration which a is necessary before we will determine that Congress intended to exercise its powers of abrogation. Dellmuth, 491 U.S., at 232.

The Court advances a more general critique of my approach, explaining that we have never held that Congress must speak with different gradations of clarity depending on the specific circumstances of the relevant legislation a . Ante, at 1112. But that descriptive observation, with which I agree, is hardly probative in light of the fact that a clear statement by incorporation argument has not to date been presented to this Court. I acknowledge that our previous cases have not required a clear statement to appear within a single section or subsection of an Act. Pennsylvania v. Union Gas Co., 491 U.S. 1, 710 (1989), overruled on other grounds, Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996); see also id., at 5657 (confirming clear statement in one statutory subsection by looking to provisions in other subsection). Nor have our cases required that such separate sections or subsections of an Act be passed at the same time. Union Gas, supra, at 713, and n. 2 (consulting original provisions of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 and 1986 amendments to that Act). But, even accepting Union Gas to be correctly decided, I do not think the situation where Congress amends an incorporated provision is analogous to Union Gas. In the Union Gas setting, where the later Congress actually amends the earlier-enacted Act, it is reasonable to assume that the later Congress focused on each of the various provisions, whether new or old, that combine to express an intent to abrogate.

Even if a clarifying amendment to an incorporated provision might sometimes provide a clear statement to abrogate for purposes of the Act into which the provision is incorporated, this is not such a case for two reasons. First, 626(b) does not clearly incorporate the part of 216(b) that establishes a private right-of-action against employers. Second, even assuming 626(b) incorporates 216(b) in its entirety, 216(b) itself falls short of an unmistakably clear expression of Congress intent to abrogate the States Eleventh Amendment immunity from suit in federal court. A

I do not dispute that 626(b) incorporates into the ADEA some provisions of 216(b). But it seems to me at least open to debate whether 626(b) incorporates the portion of 216(b) that creates an individual private right of action, for the ADEA already contains its own private right-of-action provision626(c)(1). See McKennon v. Nashville Banner Publishing Co., 513 U.S. 352, 358 (1995) (The ADEA a contains a vital element found in both Title VII and the Fair Labor Standards Act: It grants an injured employee a right of action to obtain the authorized relief. 29 U.S.C. 626(c)); 1 B. Lindemann & P. Grossman, Employment Discrimination Law 573574 (3d ed. 1996) (The ADEA grants any aggrieved person the right to sue for legal or equitable relief that will effectuate the purposes of the Act (citing 626(c)(1)) (footnote omitted)). While the right-of-action provisions in 626(c) and 216(b) are not identically phrased, compare 626(c)(1) (Any person aggrieved may bring a civil action in any court of competent jurisdiction for such legal or equitable relief as will effectuate the purposes of this chapter), with 216(b) (An action to recover the liability prescribed in either of the preceding sentences may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction a ), they are certainly similar in function.

Indeed, if 216(b)s private right-of-action provision were incorporated by 626(b) and hence available to ADEA plaintiffs, the analogous right of action established by 626(c)(1) would be wholly superfluousan interpretive problem the Court does not even pause to acknowledge. To avoid the overlap, one might read the ADEA to create an exclusive private right-of-action in 626(c)(1), and then to add various embellishments, whether from elsewhere in the ADEA, see 626(c)(2) (trial by jury), or from the incorporated parts of the FLSA, see, e.g., 216(b) (collective actions); ibid. (attorneys fees); ibid. (liquidated damages).4

Of course the Courts interpretationthat an ADEA plaintiff may choose 626(c)(1) or 216(b) as the basis for his private right of actionis also plausible. But such a permissible inference, whatever its logical force, would remain just that: a permissible inference. It would not be the unequivocal declaration which a is necessary before we will determine that Congress intended to exercise its powers of abrogation. Dellmuth, 491 U.S., at 232. Apparently cognizant of this rule, the Court resorts to extrinsic evidence: our prior decisions. See, e.g., ante, at 10 ( ae[T]he ADEA incorporates enforcement provisions of the Fair Labor Standards Act of 1938, and provides that the ADEA shall be enforced using certain of the powers, remedies, and procedures of the FLSA (alteration in original)) (quoting Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 167 (1989) (citation omitted)). But judicial opinions, especially those issued subsequent to the enactments in question, have no bearing on whether Congress has clearly stated its intent to abrogate in the text of the statute. How could they, given that legislative historywhich at least antedates the enactments under reviewis irrelevant to a judicial inquiry into whether Congress intended to abrogate the Eleventh Amendment? Dellmuth, supra, at 230. In any event, Hoffmann-La Roche, which did not present the question of a States Eleventh Amendment immunity,5 is perfectly consistent with the view that the ADEA incorporates only extras from the FLSA, not overlapping provisions. Hoffmann-La Roche involved the ADEAs incorporation of FLSAs authorization of collective actions, which follows 216(b)s individual private right-of-action provision, see 216(b) (An action to recover the liability prescribed in either of the preceding sentences may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated (emphasis added)), and so may be viewed as falling outside the overlap described above.6

Even if 626(b) incorporates 216(b)s individual right-of-action provision, that provision itself falls short of unmistakable clarity insofar as it describes the forum for suit as any Federal or State court of competent jurisdiction. 216(b) (emphasis added). For it may be that a federal court is not competent under the Eleventh Amendment to adjudicate a suit by a private citizen against a State unless the State consents to the suit. As we explained in Employees, [t]he history and tradition of the Eleventh Amendment indicate that by reason of that barrier a federal court is not competent to render judgment against a nonconsenting State. 411 U.S., at 284 (emphasis added). The Court suggests, ante, at 12, that its ability to distinguish a single precedent, ante, at 10 (discussing Kennecott Copper Corp. v. State Tax Commn, 327 U.S. 573 (1946)), illuminates this aspect of 216(b). But the Court neither acknowledges what Employees had to say on this point nor explains why it follows from the modern 216(b)s clarity relative to the old 216(b) that the modern 216(b) is clear enough as an absolute matter to satisfy the Atascadero rule, which requires unmistakable clarity.

That is not to say that the FLSA as a whole lacks a clear statement of Congress intent to abrogate. Section 255(d) elucidates the ambiguity within 216(b). Section 255(d), it will be recalled, suspended the running of the statute of limitations on actions under 216(b) brought against a State or political subdivision on or before April 18, 1973 (the date Employees was decided) until one hundred and eighty days after the effective date of the [1974 Amendments], except that such suspension shall not be applicable if in such action judgment has been entered for the defendant on the grounds other than State immunity from Federal jurisdiction. 255(d) (emphasis added). As I explained in Part II,7 however, not only does 255(d) on its face apply only to the FLSA, but Congress failure to amend the ADEAs general incorporation of 255, 29 U.S.C. 626(e) (1988 ed.), strongly suggests that Congress paid scant attention to the impact of 255(d) upon the ADEA. Accordingly, I cannot accept the notion that 255(d) furnishes clarifying guidance in interpreting 216(b) for ADEA purposes, whatever assistance it might provide to a construction of 216(b) for FLSA purposes.8
* * *

For these reasons, I respectfully dissent from Part III of the Courts opinion.

1. Together with No. 98-796, United States v. Florida Board of Regents et al., also on certiorari to the same court.

1. See Alaska Stat. Ann. 18.80.010 et seq. (1998); Ariz. Rev. Stat. Ann. 41-1401 et seq. (1999); Ark. Code Ann. 21-3-201, 21-3-203 (1996); Cal. Govt. Code Ann. 12900 et seq. (West 1992 and Supp. 1999); Colo. Rev. Stat. 24-34-301 et seq. (1998); Conn. Gen. Stat. 46a-51 et seq. (1999); Del. Code Ann., Tit. 19, 710 et seq. (Supp. 1998); Fla. Stat. Ann. 112.044, 760.01 et seq. (1997 and Supp. 1998); Ga. Code Ann. 45-19-21 et seq. (1990 and Supp. 1996); Haw. Rev. Stat. 378-1 et seq. (1993 and Cum. Supp. 1998); Idaho Code 67-5901 et seq. (1995 and Supp. 1999); Ill. Comp. Stat., ch. 775, 5/1-101 et seq. (1998); Ind. Code 22-9-2-1 et seq. (1993); Iowa Code 216.1 et seq. (1994 and Supp. 1999); Kan. Stat. Ann. 44-1111 et seq. (1993 and Cum. Supp. 1998); Ky. Rev. Stat. Ann. 344.010 et seq. (Michie 1997 and Supp. 1998); La. Rev. Stat. Ann. 23:311 et seq. (West 1998); id., 51:2231 et seq. (West Supp. 1999); Me. Rev. Stat. Ann., Tit. 5, 4551 et seq. (1998-1999 Supp.); Md. Ann. Code, Art. 49B, 1 et seq. (1998 and Supp. 1999); Mass. Gen. Laws 151:1 et seq. (West 1997 and Supp. 1998); Mich. Comp. Laws 37.2101 et seq. (West 1985 and Supp. 1999); Minn. Stat. 363.01 et seq. (1991 and Supp. 1999); Miss. Code Ann. 25-9-149 (1991); Mo. Rev. Stat. 213.010 et seq. (1994 and Cum. Supp. 1998); Mont. Code Ann. 49-1-101 et seq. (1997); Neb. Rev. Stat. 48-1001 et seq. (1998); Nev. Rev. Stat. 613.310 et seq. (1995); N. H. Rev. Stat. Ann. 354-A:1 et seq. (1995 and Supp. 1998); N. J. Stat. Ann. 10:3-1, 10:5-1 et seq. (West 1993 and Supp. 1999); N. M. Stat. Ann. 28-1-1 et seq. (1996); N. Y. Exec. Law 290 et seq. (McKinney 1993 and Supp. 1999); N. C. Gen. Stat. 126-16 et seq. (1999); N. D. Cent. Code 14-02.4-01 et seq. (1997 and Supp. 1999); Ohio Rev. Code Ann. 4112.01 et seq. (1998); Okla. Stat., Tit. 25, 1101 et seq. (1991 and Supp. 1999); Ore. Rev. Stat. 659.010 et seq. (1997); 43 Pa. Cons. Stat. 951 et seq. (1991 and Supp. 1999); R. I. Gen. Laws 28-5-1 et seq. (1995 and Supp. 1997); S. C. Code Ann. 1-13-10 et seq. (1986 and Cum. Supp. 1998); Tenn. Code Ann. 4-21-101 et seq. (1998); Tex. Lab. Code Ann. 21.001 et seq. (1996 and Supp. 1999); Utah Code Ann. 34A-5-101 et seq. (Supp. 1999); Vt. Stat. Ann., Tit. 21, 495 et seq. (1987 and Supp. 1999); Va. Code Ann. 2.1-116.10 et seq. (1995 and Supp. 1999); Wash. Rev. Code 49.60.010 et seq. (1994); W. Va. Code 5-11-1 et seq. (1999); Wis. Stat. Ann. 111.01 et seq. (West 1997 and Supp. 1998); Wyo. Stat. Ann. 27-9-101 et seq. (1999).

1. The Federalist No. 45, p. 291 (C. Rossiter ed. 1961 (J. Madison)) (The State governments may be regarded as constituent and essential parts of the federal government . . . . The Senate will be elected absolutely and exclusively by the State legislaturesa . Thus, [it] will owe its existence more or less to the favor of the State governments, and must consequently feel a dependence, which is much more likely to beget a disposition too obsequious than too overbearing towards them).

2. When Congress expanded the ADEA in 1974 to apply to public employers, all 50 States had some form of age discrimination law, but 24 of them did not extend their own laws to public employers. See App. to Brief for Respondents 1a-25a.

3. Thus, the present majoritys view does more than simply aggrandize the power of the Judicial Branch. It also limits Congress options for responding with precise attention to state interests when it takes national action. The majoritys view, therefore, does not bolster the Framers plan of structural safeguards for state interests. Rather, it is fundamentally at odds with that plan. Indeed, as Justice Breyer has explained, forbidding private remedies may necessitate the enlargement of the federal bureaucracy and make it more difficult to decentralize governmental decisionmaking and to provide individual citizens, or local communities, with a variety of enforcement powers. College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., 527 U.S. ___, ___ (1999) (slip op., at 13) (dissenting opinion); see also Printz v. United States, 521 U. S 898, 976-978 (1997) (Breyer, J., dissenting).

4. The President also plays a role in the enactment of federal law, and the Framers likewise provided structural safeguards to protect state interests in the selection of the President. The electors who choose the President are appointed in a manner directed by the state legislatures. Art. II, 1, cl. 2. And if a majority of electors do not cast their vote for one person, then the President is chosen by the House of Representatives. But in chusing the President by this manner, the Constitution directs that the Votes shall be taken by States, the Representatives from each State having one Vote. Art. II, 1, cl. 3 (emphasis added); see also Amdt. 12. Moreover, the Constitution certainly protects state interests in other ways as well, as in the provisions of Articles IV, V, and VII. My concern here, however, is with the respect for state interests safeguarded by the ordinary legislative process. The balance between national and local interests reflected in other constitutional provisions may vary, see, e.g., U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995), but insofar as Congress legislative authority is concerned, the relevant constitutional provisions were crafted to ensure that the process itself adequately accounted for local interests. I also recognize that the Judicial Branch sometimes plays a role in limiting the product of the legislative process. It may do so, for example, when the exercise of legislative authority runs up against some other constitutional command. See Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 166-167 (1996) (Souter, J., dissenting). But in those instances, courts are not crafting wholly judge-made doctrines unrelated to any constitutional text, nor are they doing so solely under the guise of the necessity of safeguarding state interests.

5. Because Congress has clearly expressed its intention to subject States to suits by private parties under the ADEA, I join Part III of the Opinion of the Court.

6. Under the traditional view, the sovereign immunity defense was recognized only as a matter of comity when asserted in the courts of another sovereign, rather than as a limitation on the jurisdiction of that forum. See Schooner Exchange v. McFaddon, 7 Cranch 116, 136 (1812) (Marshall, C. J.); Nevada v. Hall, 440 U.S. 410, 414-418 (1979).

7. See, e.g., College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., 527 U.S., at ___ (slip op., at 8-14) (overruling Parden v. Terminal R. Co. of Ala. Docks Dept., 377 U.S. 184 (1964)); Seminole Tribe, 517 U.S., at 63-73 (overruling Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989)); Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 127, 132-137 (1984) (Stevens, J., dissenting) ([T]he Court repudiates at least 28 cases, spanning well over a century of this Courts jurisprudence).

1. I concur in Parts I, II, and IV of the Courts opinion because I agree that the purported abrogation of the States Eleventh Amendment immunity in the ADEA falls outside Congress 5 enforcement power.

2. That Congress had this purpose in mind as to the FLSA does not mean that the product of Congress effortsthe amended 216(b) qualifies as a clear statement. The amended 216(b)s description of the forum as any Federal a court of competent jurisdiction, 29 U.S.C. 216(b) (emphasis added), is ambiguous insofar as a Federal court might not be competent unless the State defendant consents to suit. See infra, at 1012. My present point is simply that, even assuming the amended 216(b) qualifies as a clear statement, the 1974 Congress likely did not contemplate the impact of the new 216(b) on the ADEA.

3. The ADEA was amended in 1991 to remove the incorporating reference. See Civil Rights Act of 1991, 115, 105 Stat. 1079, 29 U.S.C. 626(e).

4. The ADEA expressly limits this last remedy to cases of willful violations. 29 U.S.C. 626(b); see Lorillard v. Pons, 434 U.S. 575, 581 (1978).

5. That the Hoffmann-La Roche Court did not consider 216(b)s implications for the Eleventh Amendment clear statement rule is apparent from its selective quotation of 216(b)omitting the words (including a public agency). See Hoffmann-La Roche, Inc. v. Sperling, 493 U.S., at 167168 (This controversy centers around one of the provisions the ADEA incorporates, which states, in pertinent part, that an action aemay be maintained against any employer a in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated (alteration in original)) (quoting 29 U.S.C. 216(b) (1982 ed.)).

6. The other two cases upon which the Court relies, see ante, at 10 (citing McKennon v. Nashville Banner Publishing Co., 513 U.S. 352, 357 (1995), and Lorillard v. Pons, supra, at 582), are also consistent with the view that the ADEA incorporates only extras from the FLSA, not overlapping provisions. In neither case did we consider whether the ADEA incorporates the part of 216(b) that creates a private action against any employer (including a public agency) in any Federal or State court of competent jurisdiction.

7. Supra, at 56.

8. While 255 once was incorporated by the ADEA, see 7(e), 81 Stat. 605, 29 U.S.C. 626(e) (1988 ed.), the ADEA was amended in 1991 to remove the incorporating reference, see Civil Rights Act of 1991, 115, 105 Stat. 1079, 29 U.S.C. 626(e). The current unavailability of 255(d) for ADEA purposes perhaps explains why the Court, which purports to examine only the statute in its current form, ante, at 12, does not rely on 255(d). But, as I have explained, without the light 255(d) sheds on 216(b), 216(b) falls short of a clear statement of Congress intent to abrogate.