The Burger Court switched sides in two 5–4 decisions involving the application of provisions of the Fair Labor Standards Act (FLSA) to state employees. The two cases were National League of Cities v. Usery (1976) and Garcia v. San Antonio Metropolitan Transit Authority (1985). In Usery, the Supreme Court ruled 5–4 that a 1974 law extending the minimum wage and maximum hours provisions of the FLSA could not be applied to the states. The Court determined that the application of this federal law to the states infringed on the states’ Tenth Amendment rights by violating “traditional aspects of state sovereignty.” Many Court observers said that the Usery decision breathed life into the Tenth Amendment.

However, the Court changed course in Garcia by ruling that “we perceive nothing in the overtime and minimum-wage requirements of the FLSA … that is destructive of state sovereignty or violative of any constitutional provision.” The Court’s change was caused by Justice Harry Blackmun, who switched sides from Usery to Garcia.