*1 PREPAID FLORIDA BANK SAVINGS COLLEGE EXPENSE EDUCATION POSTSECONDARY al. et BOARD 23, 1999 June 20, 1999 Decided April Argued 98-149. No. *2 Scalia, J., delivered opinion of the Court, in Rehnquist, J.,C. and O’Connor, Kennedy, and JJ., joined. Stevens, Thomas, J., filed a dissenting opinion,post, p. 691. Breyer, J., filed a dissenting opin- ion, in which Stevens, Souter, and Ginsburg, JJ., joined, post, p. 693. him With for petitioner. cause C. Todd
David argued Lodge. M. Deborah the briefs on cause Waxman argued General Solicitor 12.6, urg- Rule Court’s under States, respondent United Acting Assistant were on briefs himWith reversal. ing Wallace, General Deputy Solicitor Ogden, Attorney General Robinson, E. Michael Stern, B. Stewart, Mark L. Malcolm Byron III. Thomas H. Flor for respondent cause Mallín B. argued William With Board. Expense Education Postseeondary ida Prepaid F. Louis Joseph M. Ramirez were brief on the him Hubener.* *3 the Court. of the opinion delivered Scalia
Justice (TRCA), Act Clarification Remedy Trademark The 43(a) § under brought suits the States 3567, subjects Stat. International for the a brief Gilson filed and Jerome H. Redish *Martin reversal. curiae urging as amicus Association Trademark of Ohio State for the filed were curiae affirmance urging of amici Briefs B. Ohio, Edward of Attorney General Montgomery, D. Betty by et al. Solicitor, by and Porter, Assistant W. Solicitor, and Elise Foley, State of Pryor Bill as follows: States their respective for General Attorneys Arkansas, Bill Lock- Pryor of Alaska, Mark of M. Botelho Alabama, Bruce Delaware, Brady of JaneM. Colorado, of Salazar Ken California, yer of Cur- Illinois, J Joseph of Ryan E. Hawaii, James S. Bronster of Margery Moore of Mike oí Michigan, Granholm Jr., ran, Maryland, of Jennifer Ne Stenberg of Missouri, Don of Nixon (Jay)W. Jeremiah Mississippi, of New McLaughlin T Nevada, Philip Papa Del of Sue braska, Frankie of New Spitzer Eliot Mexico, of New A. Madrid Patricia Hampshire, of Penn Fisher Oklahoma, Michael D. of York, A. Drew Edmondson W. of South Barnett Island, Mark Rhode of Whitehouse Sheldon sylvania, Utah, Mark of Graham Tennessee, Jan of G. Summers Paul Dakota, V. Darrell Washington, Gregoire O. Christine Earley L. Virginia, for and Wyoming; Woodhouse Gay McGraw, Jr., Virginia, West and Ruda Richard et by al. Legislatures National Conference Crowley. I. James Dodson, E. James P. Brown, Miller, Gerald M. A. Caroline Charles a brief Stanley filed Jr., L. Richard Holst, Simpson, P. Martin curiae. as amicus California University of of the Regents of the (Lanham Trademark Act Act) of 1946 for false and misleading advertising, 60 Stat. 441, §1125(a). 15 U. S. C. question presented in this case is provision whether that permit effective to against suit a State for its alleged misrepresentation of its product own because the —either TRCA effects a constitutionally permissible abrogation of state sovereign immunity, or because the operates TRCA an invitation to waiver of such immunity which is automati- cally accepted by a State’s engaging in the regu- activities lated the Lanham Act.
I In Chisholm Georgia, (1793), Dall. 419 we asserted jurisdiction over an action in assumpsit brought by a South Carolina against citizen the State Georgia. In so doing, we reasoned that Georgia’ssovereign immunity qualified general jurisdictional provisions of Article III, and, most specifically,by provision extending judi the federal power cial to controversies “between a State and Citizens of another State.” U. S. Const., Art. III, §2, cl. 1. The “shock of surprise” created by this decision, Principality Monaco v. Mississippi, 292 U. (1934), S. 313, 325 prompted the imme diate adoption of the Eleventh provides: Amendment,
“The *4 Judicial of the United States shall not be construed any extend to suit in equity, law or com- prosecuted menced or against one of the United States by Citizens of another or State, Subjects Citizens or any of Foreign State.” Though precise its terms only bar jurisdiction federal over suits brought against one State citizens of another State or foreign state, we long have recognized that the Eleventh accomplished Amendment much more: It repudiated the premise central of Chisholm jurisdictional that the heads of Article superseded III the sovereign immunity that possessed States before entering the Union. This has been our understanding of the Amendment since the landmark 670 Ex (1890). also See 1U. S. Louisiana, 134 v. Hans of case Principality (1921); 490, 497-498 S.U. 256 York,
parte New and School State Pennhurst 320-328, supra, Monaco, of (1984);Seminole 97-98 89, S.U. Halderman, 465 Hospital v. (1996). 66-68 54, 44, S.U. 517 Florida, v. Fla. Tribe of have absolute, we not is suit immunity from this While individual an in circumstances only two recognized a suit such may authorize First, a State. may sue Fourteenth enforce its of exercise in Eleventh after enacted Amendment Amendment—an federal- to alter designed specifically Amendment (1976). 445 S.U. Bitzer, 427 v. Fitzpatrick balance. state con- immunity by sovereign its may waive a Second, State 447-448 U. S. 108 Barnard, Clark senting suit. cir- two these either on whether turns ease This present. cumstances
II 1125(a), §C.S.U. Act, 43(a) Lanham Section against of action right private 1946, created in enacted false makes or descriptions false uses person” who “[a]ny 43(a)by § amends TRCA The commerce. in representations instrumentality State, “any include “any person” defining instrumentality or a State employee or aof State §3(c), Stat. capacity.” official her his or acting pro toAct Lanham amends further TRCA 3568. immune, under be “shall entities state such vide States United Constitution amendment eleventh suit immunity, from any doctrine other under or any governmental including person, by any court Federal Act,” under any violation entity for nongovernmental enti such against available shall remedies ... available are remedies such extent the same “to ties §3(b) (codified in entity. a nonstate against” a suit §1122). U.S.C. Jersey char- Newais Savings Bank College Petitioner *5 1987, Jersey. Since New Princeton, located bank tered it has marketed and sold CollegeSure certificates deposit designed to finance the costs college education. College Savings patent holds upon the methodology of admin- istering its CollegeSure certificates. Respondent Florida Prepaid Postsecondary Education Expense (Florida Board Prepaid) is an arm of the State of Florida. Since has administered a prepayment tuition program designed to provide individuals with sufficient funds to cover future col- lege expenses. College Savings brought patent infringe- ment against action Florida Prepaid in United States District Court in Jersey. New That action is subject of today’s decision in Florida Prepaid Postsecondary Ed. Expense Bd. College Savings Bank, p. ante, 627. In addi- tion, and in the same College court, Savings filed the instant action alleging that Florida Prepaid §43(a) violated of the Lanham byAct making misstatements about its own tuition savings plans in its brochures and reports. annual
Florida Prepaid moved to dismiss this action on the ground that it was barred sovereign immunity. It ar gued had not abrogated sovereign immunity in this case because the TRCA was pursuant enacted to Con gress’s powers under Article I of the Constitution and, under our decisions in Seminole supra, Tribe, and Fitzpatrick, supra, Congress can abrogate state sovereign immunity only when it legislates to enforce the Fourteenth Amendment. The United States intervened to defend the constitutionality of the TRCA. Both it and College Savings argued that, under the doctrine of constructive waiver articulated in Par den v. Terminal R. Co. Ala. Docks Dept., 377 U. S. (1964), Prepaid Florida had waived its immunity from Lan- ham Act suits engaging in the interstate marketing and administration of its program after the TRCA made clear that such activity subject would Florida Prepaid to suit. College Savings argued also that Congress’s purported abro gation of Florida Prepaid’s sovereign immunity in the TRCA
672 pursuant to merely enacted was since effective, the of Clause Process Due the enforce I but also Article rejected both District Court The Amendment. Fourteenth Prepaid’s motion Florida granted arguments these of 1996). (N. Court J. Supp. 400 948 F. dismiss. 1997). granted (CA3 We 353 F. 3d 181 Appeals affirmed. 1063 S.U. 525
certiorari.
III Florida’s contention first to turnWe Terms three decision Our validly abrogated. immunity was regu- power “to that the supra, held Tribe, ago Seminole Constitution I of the by Article conferred late Commerce” sovereign im- state abrogate authority to Congress no gives present case, abrogation in authority for munity. As Amendment, §5 Fourteenth upon relies petitioner reaffirmed supra, and Bitzer, v. Fitzpatrick held we used could be 72-73, atS.,U. Tribe, see in Seminole purpose. that no provides Amendment the Fourteenth 1 of Section without ... property of... any person “deprive shall Congress “[t]he provides Section of law.” process due legislation, by appropriate enforce, power to have shall City clear made We of this article.” provisions of Boerne (1997), term 516-529 S. Flores, 521 U. object valid seriously taken is to “enforce” —that remediation earefiilly delimited be the §5 legislation must claims Petitioner violations. of constitutional prevention 43(a) Act, § Lanham respect to with that, deprivations prevent remedy and TRCA enacted (1) rights: “property” species of two process due without advertis false competitor’s a business from right be free a right (2) generalized more product, own ing its about these Neither interests. business in one’s secure to be Process Due protected right property qualifies as Clause. As to the first: The hallmark protected of a property inter
est is the right to exclude others. That is “one of the most essential sticks in the bundle rights that are commonly characterized as property.” Kaiser Aetna v. United States, *7 444 U. S. (1979). 164, 176 That is why right the that we all possess to use public the lands is not the “property” right of anyone the —hence sardonic maxim, explaining what econo mists call the “tragedy of the commons,”1 publica, res res nullius. The Lanham may Act well provisions contain protect constitutionally cognizable property interests —nota bly, provisions its dealing with infringement of trademarks, which are the “property” of the owner because he can ex clude others from using them. g., See, e. K mart Corp. v.
Cartier, Inc., 486 U. (1988) S. 176, 185-186 (“Trademark law, like contract law, private confers rights, which are them rights selves grants exclusion. It the trademark owner a bundle of rights”). such The Lanham Act’sfalse-advertising provisions, however, bear no relationship any to right to ex clude; and Florida Prepaid’s alleged misrepresentations con cerning its products own upon intruded no interest over which petitioner had exclusive dominion.
Unsurprisingly, petitioner points to no decision of this (or Court of any other matter) court, for that recognizing a property right in freedom from a competitor’s false advertis ing about its products. own The petitioner closest comes is dicta in International News Service v. Associated Press, 248 U. S. (1918), where the Court jurisdic found equity tion over an unfair-competition claim “[t]he because rule that a court of equity concerns only itself protection in the property rights any treats right civil of a pecuniary nature as a property right.” But say that a court equity “treats any right civil of a pecuniary nature as a property right” is not say that all rights civil of a pecuniary nature are property rights. In fact, when one reads the pas- full
1See Hardin, The Tragedy of the Commons, 162 Science 1243 the is clear taken is statement this sage from will equity namely, that opposite, just the saying Court rights property as nature pecuniary aof rights civil treat such: not properly they are though even equity over jurisdiction sustain order “In abso- general any affirm need controversy, we court rule such. as news property lute prop- protection only itself concerns equity nature pecuniary right of any civil rights treats erty prop- acquire right to and; right... property aas business lawful aof conduct labor by honest erty guard right to as protection entitled much is fur- right that It ... acquired. already property ordinary case jurisdiction basis nishes 286-237. Id., at competition.” of unfair *8 in issue competition unfair that note may also We of nothing short to amounted Service News International something which information, proprietary of theft 233. id., at See exist. to said could others” to “exclude com- of unfair tort common-law argues that Petitioner Brief interests, property protects “by definition” petition designed is “by definition” TRCA thus 15, and Petitioner interests such of deprivations prevent remedy matter, that logical a Even false-advertising context. property protects everything not since follow, not does deprivations prevent remedy or designed is interests prohibiting ordinance municipal A interests. property those interests property protects areas residential billboards ordi- would erecting billboards although homeowners, sweep within To property. them deprive narily not interests property elusive Amendment Fourteenth law unfair-competition protected “by definition” are Process Due frequent admonition our violate would Davis, 424 Paul law.” tort merely “font Clause U. S.
Petitioner’s second assertion of a property interest rests upon argument an similar to the just one discussed, and suf- fers from the same flaw. argues Petitioner that businesses are “property” within the meaning of the Due Process Clause, and that Congress legislates § under 5 passes when it a law prevents (which interference with business false does). advertising Brief for Petitioner 19-20. The assets of a business (including will) good its unquestionably are property, any state taking of those assets is unques- tionably a “deprivation” under the Fourteenth Amendment. But business in the sense of the activity doing business, or the activity making a profit is not property in the ordi- nary sense—and it is only that, and not any business asset, which is impinged upon by a competitor’s false advertising. Finding that there is deprivation no of property at issue here, we need not pursue the question follow-on City Boerne would require otherwise us to resolve: whether the prophylactic measure taken under purported authority §5of (viz.,prohibition of States’ sovereign-immunity claims, which are not in themselves violations of the Fourteenth Amend- ment) was genuinely necessary prevent violation of the Fourteenth Amendment. We turn next question whether Florida’s sovereign immunity, though not abro- gated, was voluntarily waived.
IV We have long recognized that a State’s sovereign immu *9 nity personal “a privilege may which it pleasure.” waive at Clark v. Barnard, 108 S.,U. at 447. The decision to waive that immunity, however, altogether “is voluntary on part of the sovereignty.” Beers v. Arkansas, 20 How. 527, 529 (1858). Accordingly, our “test for determining whether a State has waived its immunity from jurisdic federal-court tion is a stringent one.” Atascadero State Hospital v. Scan lon, 478 U. (1985). S. 234, 241 Generally, we will find a waiver either if the State voluntarily jurisdic- invokes our
676 273, 284 U. S. 200 Co., R. Line Coast Atlantic v. tion, Gunter that declaration” "clear a makes the State if (1906),or else Northern Great jurisdiction, our to itself submit to
intends (1944). Penn also See 47, 54 S. 322 U. Read, v.Co. Ins. Life S., 465 U. Halderman, Hospital v. and School State hurst ex "unequivocally be must suit to (State’s consent 99 at federal in to suit consent does Thus, State pressed”). own itsof courts suit consenting to by merely court (1900). 441 — 445 436, S.U. 178 Reeves, v. Smith creation. stating by merely court in federal suit to it consent does Nor Dept. Health Florida sued,” and “sue to intention its Assn., Nursing Home v. Florida Servs. Rehabilitative and au curiam), or even (1981) (per 149-150 S.U. 450 juris competent any court “‘in against it thorizing suits ” Common, Tax Corp. State v. Copper Kennecott diction,’ a State that held even haveWe 573, 577-579 S.U. contrary, to commitment any contractual may, absent changes those apply waiver itsof conditions alter supra. Arkansas, v. Beers suit. pending Pre- Florida respondent that here suggestion nois There court. federal being sued consented expressly paid affirmatively in- has a ease is Nor Savings College petitioner Rather, jurisdiction. our voked Prepaid Florida maintain both States United and the immunity from its “constructively” waived "impliedly” has authority Parden on They sodo suit. Act Lanham (1964)— S. U. Dept., Docks Ala. R. Co. Terminal waiver our nadir stands opinion elliptical an jurisprudence. sovereign-immunity) matter, (and, owned railroad aof employees permitted we Parden, In Federal under action bring an by Alabama operated employer. (FELA) their against Liability Act Employers’ specifi- statute in the any provision absence Despite the authorized Act held States, we referring to the cally provision general itsof by virtue States against suits . . . railroad carrier common "[e]very suit subjecting *10 engaging in commerce between . . . the several States,” U. S. §51 C. (1940 ed.). We further held that Alabama had waived its immunity from FELA suit even though Alabama law expressly disavowed any such waiver: “By enacting [FELA]... Congress conditioned the right to operate a railroad in interstate commerce upon amenability suit in federal court as provided by Act; by. thereafter operating railroad in interstate
commerce, Alabama must be taken to have accepted that condition and thus to have consented to suit.” 377 S.,U. at 192.
The four dissenting Justices in Parden refused to infer a
waiver because Congress had not “expressly declared” that
a operating
commerce would be subject
to liability,
but
they went on to acknowledge
a concession that,
—in
strictly
was
speaking,
necessary
their analysis —that
Congress possessed the
effect such a waiver of the
State’s constitutionally protected
so
immunity
long
did
so with
Id.,
clarity.
at 198-200 (opinion of
J.).
White,
Only nine years later,
in Employees
Dept.
Public
Health Mo. v. Department
Welfare Public Health
Mo.,
678 Labor Fair the of provision the unlike 285, atS.,U.
411 class broad applied that question in Act Standards in railroad the distinguished alsoWe employees. of “in profit” for “operated was it that ground on the Parden normally corporations and persons private where area the Marshall, Justice 284. at S.,U. 411 enterprise.” ran concluding that further, even went Stewart, by Justice joined clearly purported Congress had view, their although, in courts, federal in by individuals to suits subject States 287, Id., at so. authority to do the constitutional lacked result). concurring in (opinion 289-290 dictum) is there (in that observed year, we next in our waiver constructive of doctrine for place” “no emphasized and we jurisprudence, sovereign-immunity most stated only where waiver “find would we that implications overwhelming by such or language express reasonable any other room no [will]leave text from (1974) 673 651, S. Jordan, 415 U. v. Edelman construction.” (internal later, omitted). Terms Several marks quotation Transp., Public Highways Dept. v. Texas Welch of address avoided expressly although we (1987), 468 U. S. 483 conditioning a State’s Congress’s constitutionality ing the State’s upon the activity Clause in Commerce engaging doubt “no there immunity, said we waiver negate intent congressional discussion Parden’s that law,” and good longer immunity nois Amendment Eleventh with [it] inconsistent extent “to Parden overruled im Amendment of Eleventh abrogation an requirement unmistakably expressed must munity n. 8.2 at S.,U. 483 language,” clear holding narrowing 2 criticizing cases string response In as decisions Breyek -Parden cases post three up holds Parden, Justice call avoided “carefully at least 696, or Parden, post, “support[ed]” Atasca- “support” perception His at 698. post, into question,” [it] ing nothing upon (1985), rests Scanlon, S.U. Hospital dero a waiver “suggest[ed] case fact than substantial more College Savings and the United States concede, as they surely must, that these intervening decisions have seriously limited the holding of Parden. They maintain, however, that Employees and Welch are distinguishable, and that a core principle Parden remains good law. A Parden-style waiver of immunity, they say, is still possible after Employ- ees and Welch so long as the following two conditions are satisfied: First, Congress must provide unambiguously that *12 the State will be subject suit if it engages in certain speci- fied conduct governed by federal regulation. Second, the State must voluntarily elect to in engage the federally regu- lated conduct that subjects it to suit. In this latter regard, their argument goes, a State is never deemed to have con- structively waived its sovereign immunity by in engaging activities that it cannot realistically choose to abandon, such may be found in a State’s acceptance of a federal grant.” Post, at 696. But we make the same suggestion today, while utterly rejecting Parden. As we explain elsewhere in detail, see infra, at 686-687, conditions attached to a State’s receipt of federal funds are simply not analogous to Parden-style conditions attached to a State’s decision to engage in other- wise lawful commercial Breyer’s activity. Justice case, second Welch, overruled Parden in part, as we discuss above, and we think it quite im- possible to believe that the following statement in the opinion did not “questio[n] the holding Parden that the Court today discards,’"'post, at 698: “We assume, without deciding or intimating view of the question, that the authority of Congress to subject uneonsenting States to suit in federal court is not confined §5 of the Fourteenth Amendment.” 483 S.,U. at 475. Calling what a prior case has flatly decided a “question” in need of (lest “deciding,” and there be any doubt on the point) making it clear that we “intimatfe] no view” as to whether the answer given by that prior ease correct, was surely was handwriting on the wall which even an inept cryptologist would recognize as spelling out the caption of today’s opinion. As for Seminole Tribe Fla. v. Florida, 517 U. S. 44 (1996),we explain elsewhere, see infra, at 682-684, how that case was logically and practically inconsistent with Parden, even though it did not expressly Breyer overrule it. Justice realizes this well enough, or else his call for an overruling of case, which occupies almost half of his dissent, see post, at 699-705, would be supremely irrelevant to the matter before us. is waiver constructive but force; police aof operation oper profit, for enterprise an runs where appropriate persons private by occupied traditionally field ain ates from sufficiently removed activities in engages corporations, or3, States United Brief Reply functions,” [state] “core com interstate in participant” “market aas acts otherwise Em Constr. Council of Massachusetts v.White cf. merce, theory, (1983). On 204, 206-208 U. S. Inc., 460 ployers, immunity from its constructively waived Prepaid Florida activity nonessential and voluntary in engaging suit investment educational for-profit advertising a selling and notice on being put after commerce interstate in vehicle subject to would TRCA language clear doing so. liability for Act Lanham Par- experiment constructive-waiver thinkWe attempting merit no see and conceived, ill den detail, below explain weAs it.of any remnant salvage fundamentally eases, prior with sharply broke Parden applied never haveWe ones. later with incompatible have fact statute, *13 another Parden holding of it in opinion subsequent every in the case narrowed stands Parden short, In consideration. under been has immunity, jurisprudence anomaly in an Today, we law. constitutional jurisprudence in indeed decision our may remain Whatever shoe: other drop the overruled. expressly is Parden cases our with Parden square eannot we with, begin To sovereign immu waiver express State’s a requiring Co. Ins. Northern g., Life Great e. See, unequivocal. nity a requiring point whole (1944). The 47S. U. Read, certain to be is waiver itsof State by the declaration” “clear little is there But suit. consents fact mere State’s upon based consent actual assume reason regulation. congressional subject field presence express State’s between difference a fundamental is There Congress’s immunity and its waives unequivocally ing expressing unequivocally its intention that if the State takes certain action it shall be deemed to have waived that immu- In nity. the latter situation, the most that can be said with certainty that the State has been on put notice that Con- gress intends to subject it to suits brought by individuals. That is far very from concluding that the State made an “alto- gether voluntary” decision to waive its immunity. Beers, 20 How., at 529.3
Indeed, Parden-style waivers are simply unheard of in the
context of other constitutionally protected privileges. As
we said in Edelman, “[c]onstructive consent is not a doctrine
commonly associated with the surrender of constitutional
rights.”
3In an attempt to cast doubt on our characterization of Parden as a
groundbreaking
case, Justice
Beeyer
points to three earlier decisions
which allegedly demonstrate that Parden worked no major change.
These cases, however, have only the most tenuous relation to Parderis
actual holding
one might suspect
—as
from the dissent’s soft-pedaled de
scription of them as “roughly comparable” and
(in
involving
quotation
marks) ‘“waivers.”’ Post, at 696.
United,
two,
first
States v. Cali
fornia,
682 commerce interstate in securities selling of or buying
the prose criminal any federal jury ato entitled be not would securities engaging persons Would fraud. such of cution be deemed amendment an such of adoption the after fraud protected constitutionally their “constructively waived” have trad the all, After eases? criminal jury in trial rights per any one activity that an vital so not is ing of securities voluntary aas regarded be cannot trade decision son’s descrip classic The no. is course, of answer, choice. the is right constitutional aof waiver an effective tion known aof abandonment or relinquishment “intentional 464 458, S.U. 304 Zerbst, v. Johnson privilege.” right presumption reasonable every indulge “[C]ourts (1938). rights. constitutional fundamental waiver” against 389, U. S. Bogash, 301 rel. Kennedy ex v.Co. Ins. Aetna Util. Public v.Co. Telephone Bell Ohio also See pre (we not (1937) “do S.U. Ohio, 301 Comm’n of rights”). fundamental loss acquiescence sume trial right to than less immunity, no sovereign Great protected. constitutionally is eases, criminal jury in And 98. atS.,U. Pennhurst, 465 51; supra, Northern, immunity obviously sovereign — oí context in the federal established well case—it present analogy to closest States e.g., United See, implied. not are waivers proposi- “settled (describing (1969) 41, S. King, U. immunity sovereign waiver States’ the United tio[n]” that expressed”). unequivocally be must implied but be “cannot with different should rule why the reason no see We immunity. sovereign respect to state “constructive speak it is anomalous how Given is not privilege, protected constitutionally aof waiver” opinion Parden very cornerstone surprising constit immunity is notion began waiver discussion Parden’s grounded. utionally observation: with
“By empowering Congress to regulate commerce . . .
the States necessarily surrendered any portion of their
sovereignty that would stand in
way
of such regula-
tion. Since imposition of the FELA right of action
upon interstate railroads is within the congressional
regulatory power, it must follow that application of the
Act to such a railroad cannot
precluded
by sovereign
immunity.”
Recognizing a congressional power to exact constructive waivers of sovereign immunity through the exercise of Arti- I powers cle would practical also, as a permit matter, Con- gress to circumvent the antiabrogation holding of Seminole Tribe. Forced waiver abrogation are not even different sides of the same they are the same side of coin— the same coin. congressional “All private creations of rights of action attach recovery to the defendant’s commission of some act, possession of some status, in a field where Congress has authority regulate conduct. Thus, all federal prescrip- tions are, insofar as prospective their application is con- cerned, in a sense conditional, and—to the extent that the objects of the prescriptions consciously engage in the activ- ity or hold the status produces liability be rede- —can ” scribed as invitations to ‘waiver.’ Pennsylvania v. Union Gas Co.,491 U. (1989) S. 1, J., dissenting). See (Scalia, also Fitzpatrick, 427 U. S., at 451-452 (referring to congres- sional intent to “abrogate” state sovereign immunity as a “necessary predicate” for Parden-style waiver). There little more than a verbal distinction between saying that Congress can make Florida liable private parties for false or misleading advertising in interstate commerce pre- of its paid program, tuition and saying the same thing adding but advertising.” such engage chooses *16 “if Florida end the at more little is waiver constructive that evidence further
As revealing the consider name, another under abrogation than to upon relied provision statutory case: of facts sover- its constructively waived Florida that demonstrate to purported that provision very same the immunity is eign it. abrogate princi- constitutionally grounded the that think we doNor where, as robust any less immunity is sovereign of ple conduct is waiver constructive for basis asserted here, is abandon, that to choose realistically could the State that by pri- performed traditionally is profit, for undertaken resembles otherwise and corporations, and citizens vate abroga- Permitting participants.” “market of behavior only right constitutional waiver constructive or tion evil— limit course would exist conditions these when any more has limitation say that to hard but or abrogation limiting say, than, tradition text support Since month. Friday of last to waiver constructive sovereign traditionally limited not was immunity itself volun- upon bearing no they have since and factors, these they why reason principled nois there waiver, the tariness held we When analysis. waiver our into enter should action an immunity barred sovereign Tribe Seminole against Act Regulatory Gaming Indian brought under gam- negotiate alleged failure its for Florida the State not didwe Indians, Tribe the Seminole compact with bling negotiate decision Florida’s whether consider pause consider pause we did involuntary. Nor somehow was rea- and “fair towing service tugboat running whether performed traditionally was profit, rates” sonable resembled otherwise and corporations, citizens private Ex held, we when participants” “market the behavior immu- (1921), that S.U. York, parte New Newof against admiralty action an nity foreclosed York for damages caused by the State’s engaging in such activity. Hans itself involved an action against Louisiana to recover coupons on a bond—the issuance of which surely rendered Louisiana a participant in the financial markets.
The “market participant” eases from our dormant
Commerce Clause jurisprudence, relied upon by the United
States, are inapposite.
e.g.,
See,
White v. Massachusetts
Council
Constr. Employers,
Inc., 460 U. S.
(1983);
Reeves, Inc. v. Stake,
686 477. S.,U. 483 Welch, defendants.”
employers 246.4 S., at U. Atascadero, 473 Cf. which in contexts other two to points States United exercise Congress, permitted have we asserts waivers” “constructive extract to powers, I Article its Petty Tennessee-Missouri v. immunity. In sovereign state bistate (1959), held we S.U. Comm’n, Bridge interstate an to pursuant created been had which commission partook (and assumed we compact pro- suability aof by reason suit to consented immunity) had compact. of the approval congressional to attached vision Dole, 483 Dakota South cases such held have we And of its exercise may, Congress (1987), that S.U. States to the funds grant its condition power, spending could Congress actions taking certain their upon entails funds acceptance take, and to them require funda- us seem cases These actions. agreement an Com- Under one. present from mentally different cannot States §10, cl. I, Const., Art. S.U. Clause, pact ex- obtaining the first compact without interstate an form ais consent such granting Congress; consent press its use obligation no has also, So gratuity. such States; funds disburse power to Clause Spending *18 sovereign Beeyer state limit we that 4 Justice suggestion for the As lim so has Congress because activities state to noncommercial immunity trend,” see “modern with accord immunity, sovereign foreign ited Immunities Sovereign Foreign (citing the opinion) (dissenting at 699 post, Stevens’s Justice 11605(a)(2)), also see U. S. C. (FSIA), 28 1976 ofAct sovereign state that fact ignores proposal This at 692: dissent, post, doctrine constitutional immunity, is a foreign immunity, unlike trends. resistant immutable both is meant that be no distinction course, makes Amendment, of Eleventh text were if so we activities —and noncommercial commercial tween Amend Beeyer’s interpretation literalistic Justice combine activities” a “commercial have FSIA, would we for affection his ment with federal commenced those except States against suits all exception sense,” “makes hardly State, a disposition another by citizens court 699. at post, funds gifts. are In present case, however, what Con gress threatens if the agree refuses to to its condition is not the denial of gift or gratuity, but a sanction: exclusion of the State from permissible otherwise activity. Justice
Breyer’s dissent acknowledges the intuitive difference be tween the two, but asserts that it disappears when gift is threatened to be withheld is substantial enough. Post, at 697. Perhaps so, which why, in eases involving conditions attached to federal funding, we have acknowl edged that “the financial inducement offered by Congress might be so coercive pass as to point ‘pressure ” turns into compulsion.’ Dole, supra, at 211, quoting Stew ard Machine Co. v. Davis, 301 U. S. 548, 590 In any event, we think where the constitutionally guaranteed pro tection of the States’ sovereign immunity is involved, the point of coercion is automatically passed —and voluntari ness of waiver destroyed what is —when attached to the re fusal to waive is the exclusion of the State from otherwise lawful activity.
V The principal thrust of Breyer’s Justice dissent is an upon attack very legitimacy of state sovereign immunity itself. regard, In Breyer Justice and the other dis- proclaim senters that they are yet “not ready,” post, at (emphasis added), to adhere to precedent still-warm Seminole Tribe and to the 110-year-old decision in Hans that supports it.5 Accordingly, Breyer Justice reiterates Breyer Justice purports to “accept this pre-Seminole Court’s Tribe sovereign immunity decisions,” post, at 699 (dissenting opinion), but by that he could not mean Hans, but rather only the distorted view of Hans that prevailed briefly between Farden and Seminole Tribe. Pardon the first case suggest the sovereign immunity announced in Hans was so fragile a flower that it could be abrogated under Article I—a sug gestion contrary to the reality that Hans involved a congressional itself conferral of jurisdiction enacted under *19 I. Article See Pennsylvania v. Gas, Union 491 1, U. S. (1989) 36-37 (Scalia, J., dissenting). Moreover, that conferral of jurisdiction was combined, in Hans, with a substantive
688 now-fashionable the thankfully) form, outline in
(but only set forth Amendment Eleventh the accounts revisionist has that detail repetitive a degree.of in opinions other in 700-701, at post, Compare woods. northern our despoiled dissenting); J., (Brennan, 258-302 at Atascadero, supra, with Seminole dissenting); J., (Brennan, 504-516 at Welch, supra, id., at dissenting); J., (Stevens, 76-99 at S.,U. Tribe, 517 Maine, v. Alden see But dissenting). J., (Soüter, 100-185 arguments dissenting). J., (Souter, 760-808 at post, refuted, and soundly been have sources these in recited re been has marshaled been have they which position clear as and precedent tradition constitutional jected consigns which venerable, as almost conclusive, 137 Madison, 1 Cranch v. Marbury whether over debate otherworldly more forums to decided wrongly was (1803), 35-42 33-34, S., at U. Gas, 491 Union See ours. than 54-73; at Tribe, supra, Seminole dissenting); J., (Scalia, nothing think score, we this On 712-730. at Alden, post, peculiar observations minor two except said need further case. to one itself, which Constitution Clause Contracts under
claim
force than
lesser, abrogative
than
rather
greater,
have
to
think
would
Justice
Clause.
Commerce
to the
pursuant
enacted
statute
substantive
ex
not
did
in Hans
statute
interpose
Breyer
apparently
would
”
Semi
“
quoting
at
post,
immunity/
pierce
to
‘purpor[t]
pressly
opinion
dissenting)
J.,
(Souter,
S.,
119
—but
Tribe,
U.
at
nole
any
it made
think
Parden
did
refinement, nor
to
allude
not
did
Hans
adum
even
not
was
rule”
statement
“clear
The so-called
difference.
S.,
284-285.
at
411 U.
Parden, Employees,
after
years
nine
until
brated
distinction
Breyer’s
upon
reliance
Justice
square
difficult
It
(and is therefore
question
federal
involves
case
present
700-701,with
Amendment),
post,
see
Eleventh
covered
explicitly
sover
that the
of which
point
Hans, the whole
fidelity
professed
its
Amend
Eleventh
by) the
created
(rather than
reflected
immunity
eign
put
toOr
itself
Amendment
of the
text
narrow
transcends
ment
decisions”
immunity
Tribe
“pre-Seminole
differently,
Chisholm
include
appear
Breyer
allegiance
pledges
Justice
11.
Const., Arndt.
U. S.
see
(1793). But
Dall.
Georgia,
*20
First,
Breyer
and the other dissenters have
Justice
adopted a decidedly perverse theory of stare decisis. While
finding themselves entirely
unconstrained
a venerable
precedent such as Hans, embedded within our legal system
for over a century,
g.,
see, e. Welch, 483
S.,U.
at 494, n. 27;
Union Gas, supra, at 34-35 (Scalia,
J., dissenting), at the
same
they
time
cling desperately to an anomalous and
severely undermined
(Parden)
decision
from the 1960’s.
Surely
approach
this
to stare decisis is exactly backwards—
unless, of course, one wishes to use it as a weapon rather
guide,
than a
in which case any
approach
old
will do. Sec
ond, while we stress that the following observation has no
bearing upon our resolution of this case, we find it puzzling
that Justice
Breyer
would choose this occasion to criticize
our sovereign-immunity jurisprudence as being ungrounded
in constitutional text, since
present
lawsuit that he would
allow go
having apparently been
forward —
commenced
against a
(Florida)
by a citizen of
(Col
another State
lege Savings Bank of New Jersey),
As for the more diffuse treatment of the subject of federal- ism contained in portion last opin- Breyer’s Justice ion: It is alarming to learn that so many Members of Court subscribe to a theory of federalism rejects “the details of any particular federalist doctrine”—which it says can and should “change to reflect the Nation’s changing needs”—and puts forward as only “unchanging goal” of federalism worth mentioning “the protection of liberty,” which it believes is most directly achieved by “promoting the sharing among citizens governmental decisionmaking finally (we come demands turn authority,” which rep- people’s flexibility’' for legislative “necessary point) proposi- 702-703. Post, Congress. resentatives directly achieved most liberty” is protection “the tion *21 governmental of among citizens sharing the “promoting from dropped have might well authority” decisionmaking Madi- of those from surely not but Robespierre, of lips the gov- star north Hamilton, whose Jefferson, son, especially governmental indeed, even— — power, ernmental coun- dispersed be to had people, by the wielded power States, the to dispersal of degree the say that toAnd tered. gov- be tois States, by the check of degree the hence to flexibility” is “legislative for need Congress’s erned comes opinion Breyer’s utterly. deny federalism (Justice “federal- aof example only the when admitting this to close being acknowledge as bear can it constraint ism” aof invalidation the is recognition judicial for appropriate text for passion the given things, all under —of law State’s “dormant opinion his of parts some —the characterizes flexibility on 703.) Legislative post, Clause,” Commerce of federalism touchstone bewill part of acid becomes combustion support capacity when flexibility desir- Congressional extinguisher. fire of a test power bounds only within federal course—but able, (the bounds those Beyond by the Constitution. established opinion Our menace. is a it goes), theory Constitution our are; bounds Justice what discern sought today has place. any permanent them denies dissent Breyer’s Breyer’s upon comment Justice must Finally, we discredited with today decision our comparison York, Newv. of Lochner case substantive-due-proeess re- course, Lochner, resembles It 45S. U. governmental assertion rejects a novel spect that ifBut justified. be believed legislature list mini-Lochner, aas qualify enough to were alone in- judgments of our Most endless. would mini-Lochners validating state and federal laws fit that description. We had always thought that the distinctive feature of Lochner, nicely captured in Justice Holmes’s dissenting remark about “Mr. Herbert Spencer’s Social Statics,” id., at 75, was that it sought to impose a particular economic philosophy upon the Constitution. And we think that aptly feature character- izes, not our opinion, but Breyer’s Justice dissent, which believes that States should not enjoy the normal constitu- tional protections of sovereign immunity when they step out of their proper economic role (we to engage in are sure Mr. Herbert Spencer shocked) would be “ordinary commercial ventures,” post, at 694. What ever happened to the need “legislative flexibility”?
[*] [*] [*] *22 Concluding, for the foregoing reasons, that the sovereign immunity of the State of Florida was neither validly ab- rogated by the Trademark Remedy Clarification Act, nor voluntarily waived by the State’s activities in interstate commerce, we hold that the federal courts are juris- without diction to entertain this suit against an arm of the State of Florida. judgment The of the Third Circuit dismissing the action is affirmed.
It is so ordered. Justice Stevens, dissenting. This case has argued been and decided on the basis of
assumptions may that not be entirely correct. Accepting them, arguendo, the judgment of the Court of Appeals should be reversed for the reasons set forth in Justice Breyer’s dissent, which I joined. have I believe, however, that the importance of this case and the other two “states rights” eases decided today merits this additional comment. procedural The posture of this requires case the Court to assume that Florida Prepaid is an “arm of the State” of Flor- ida because its activities relate to the State’s pro- educational assumption that of validity the But 671. Ante, at grams. be tois area this in jurisprudence Court’s if the doubtful is status the about assumptions present-day on primarily based century. 18th immunity the of doctrine the of commer- the role kind play the then not Sovereigns did may it eases, future today. In they do that marketplace cial sover- coverage of state the limit to appropriate therefore enterprises treating commercial immunity eign sovereigns foreign activities commercial like States 1976.1 ofAct Immunities Sovereign Foreign under has complaint petitioner’s assumes majority also is one but Act, Lanham of the alleged violation prop- itsof “deprivation” ato amount to sufficiently serious assump- those neither think I 674-675. Ante, at erty. ease, raised issue principal to relevant tions power constitutional Congress had namely, whether instrumentalities against States suits authorize granted Constitution judgment my In violation. such Fourteenth 5 of Section so.2 do ample legis- appropriate enact Congress to authorizes Amendment proc- due without property deprivations prevent lation Trade- persuaded amI majority, Unlike ess. exercise valid a Act Remedy Clarification mark advertising false allegedly Prepaid’s Florida if even power, foreign exception activity (commercial 1605(a)(2) §C.S. 28 U. See definition following *23 provides statute The immunity). sovereign or conduct commercial course a regular "either activity': "commercial character commercial act. or transaction commercial particular a course of the nature to the reference be determined shall activity an to its reference than act, rather or transaction particular conduct 1603(d). § purpose.” (1989), 1, 23 Co., S. U. Gas Union Pennsylvania, held in As we States’ abrogate Congress granted Clause Commerce convinced I remain immunity. defense common-law con principal in the stated the reasons decided correctly case curring opinions.
in this ease did not violate the Constitution. My conclusion rests on premises two that the rejects. Court my First, opinion “the activity doing business, or activity making a profit,” ante, at 675, ais form of prop- erty. The asset that often appears on a company’sbalance “good sheet as will” is the substantial equivalent of that “ac- tivity.” It is the same kind of “property” that Congress de- §7 scribed in of the Sherman Act, 26 Stat. §4 210, and in the Clayton Act, 38 Stat. 731. A State’s deliberate destruc- tion of a going business is surely deprivation of property within the meaning of the Due Process Clause. Second, the validity of congressional decision abrogate sovereign immunity in a category of cases does depend on the strength of the claim asserted particular in a ease within that category. Instead, the decision depends on whether had a reasonable basis for concluding that abrogation was necessary prevent violations that would otherwise occur. Given the presumption of validity that supports all federal I statutes, believe the Court must shoul- der the burden of demonstrating why the judgment of the Congress of the United States should not command our re- spect. It has not done so.
For these reasons, as well as those expressed by Justice Breyer, I respectfully dissent. Justice Breyer, with whom Justice Stevens, Justice
Souter, Ginsburg and Justice join, dissenting. The Court holds that Congress, in the exercise of its com- power, merce require cannot a State to waive its immunity from suit in federal court even where the State engages activity from might which it readily withdraw, such as feder- ally regulated commercial activity. This Court pre- has viously held to the contrary. Parden v. Terminal R. Co. of Ala. Docks Dept., 377 U. S. 184 I would not abandon precedent. *24 unanimously subscribed Court ago Thirty-five years I Justice overrules. today Court the that holding
to the dissented who Court the Members writing for four White, holding as that succinctly described issue, different aon follows: a condition to Congress the within
“[I]t is transportation interstate the in engage to permit State’s immunity State’s a waiver on business might Congress business. such arising out suits from such conduct regulable allowing that determine well body by a undertaken to be railroad aof operation from resulting directly liability from immune legally reg- itsof purposes to inimical sois operations these either option to put must State that ulation consenting to conduct in participation foregoing Id., at thereby.” caused injury responsibility legal and Harlan, Douglas, joined J., White, (opinion JJ.). Stewart, clear so overruling of justify seeking to majority, a constitutional holding as Parden’s describes precedent, a is cases,” prior sharply with “broke "anomaly” that has and ones,” later with incompatible “fundamentally Ante, opinion.” subsequent every ... “narrowed been things. those none Parden 680. support holding finds Parden’s anomalous, being from Far ordinary engages State aWhen precedent. in reason outside person, private like acts ventures, commercial unlikely way a responsibilities, “core” of its area governmental basic aof fulfillment essential prove those regulate decides A obligation. likely State exempt the than rather activities commercial differently treating the exemption, an believes threaten would persons, private identically situated from primarily aimed program regulatory federal objectives of
695
private
at
(1994
conduct. Compare,
g.,
e.
12
§1841(b)
U. S. C.
III)
ed., Supp.
(exempting state companies
regu
from
lations covering federal bank holding companies); 15 U. S. C.
§77e(a)(2) (exempting state-issued securities from federal
laws);
securities
and 29
§652(5)
U. S. C.
(exempting States
from the definition of “employer[sJ” subject to federal occu
pational safety and
laws),
health
with 11
§
U.
106(a)
S. C.
(subjecting States to federal bankruptcy court judgments);
§
15
1122(a)
U. S. C.
(subjecting States to suit for violation of
Act);
Lanham
17
§511(a)
U. S. C.
(subjecting States to suit
for copyright infringement); and 35
271(h)
§
U. S. C.
(subject-
ing States to suit
patent
for
infringement). And a Congress
that includes the State
only
within its
regu-
substantive
latory rules but also (expressly) within a
system
related
private remedies likely believes that a remedial exemption
would similarly threaten that program. See Florida Pre-
paid Postsecondary Ed. Expense Bd. v.
liege
Co
Savings Bank,
ante, at 656-657 (Stevens,
J., dissenting).
It thereby avoids
an enforcement gap which, when allied with
pressures
a competitive marketplace,
place
could
regulated
State’s
private competitors at
significant
disadvantage.
These considerations make Congress’ need
possess
power to condition entry into the market upon a waiver (as
immunity
“necessary
proper”
to the exer-
cise of its
power)
commerce
unusually strong, deny
Congress
power
would deny effec-
tively to regulate private conduct. Cf.
v. Taylor,
California
353 U. S.
553, 566
At the same
they
time
make a
State’s need to exercise sovereign immunity unusually weak,
for the State is unlikely to have to supply
private
what
firms
already supply,
may
nor
it fairly
special
demand
treatment,
even
protect
public
purse, when it does so. Neither
can one easily imagine what the Constitution’s Founders
would have thought about the assertion of sovereign immu-
nity in
special
this
context. These considerations, differing
in kind or degree from those that would support
general
Pardens
indicate
power,
“abrogation”
congressional
decisions
Court’s
irrespective
sound,
holding is
(1996), U. S.
Florida, v.
Fla.
Tribe
Seminole
p. 706.
post,
Maine,
Alden
cases.”
prior
with
“sharply.
break
Parden
did
Neither
“waivers”
related
found
authority that
cited
itself
Parden
States
United
circumstances.
comparable
roughly
least
example, held
*26
(1936), for
175
U. S.
297
California,
v.
rail, has
commerce
interstate
in
engaging
“by
State,
a
which
185,
at
id.,
power,”
commerce
to
subjected itself
related) substan
though
(different
aof
to a waiver
amounted
also
Parden
568.
supra, at
Taylor,
also
immunity. See
tive
necessary
seeking
holding that States
authority
on
relied
“by
had,
compact
an interstate
approval
congressional
[waiver
'assume[d] the
realm
[federal]
venturing into
S.,U.
377
.
. . attached.’”
immunity] conditions
sovereign
Comm’n,
Bridge
Petty Tennessee-Missouri
v.
(quoting
196
at
a
found
had
law
(1959)).
case
Earlier
275, 281-282
S.U.
359
bring
to
decision
immunity
State’s
in a
waiver
Jer
v. New
Gardner
bankruptcy. See
in
claim
creditor’s
a
suggest
law,
case
Later
573-574
565,
sey,
S.U.
329
acceptance of
a State’s
found
may be
ing
waiver
that
473
Scanlon,
Hospital
Atascadero
grant, see
federal
Where
conclusion.
Parderis
(1985),supports
234,
U. S.
sharp break?
is
be-
It
question.
to
answer
only one
has
majority
The
to
any “waiver”
requires
law
ease
this Court’s
lieves
cases
But
680.
Ante,
“unequivocal.”
“express”
ma-
so.
not
is
show
just referred
have
I
to
away with
cases
those
explain some
jority tries
waive
refusal
attached
is
what
statement
what
while
gratuity,”
gift
a denial
“the
cases
those
[an]other-
from
the State
exclusion
‘‘the
here is
is involved
does
statement
This
687.
Ante, at
activity.”
lawful
wise
a difference
simply states
It
away a difference.
explain
explanation.
an
demands
The statement does appeal to an intuition, namely, that it
is somehow easier for the State, and hence more voluntary,
to forgo
gift
“a
or gratuity” than to refrain from “otherwise
lawful activity,” or that it is somehow more compelling or
oppressive for Congress to forbid the State
perform
an “otherwise lawful” act than to withhold “beneficence.”
But the force of this intuition depends upon the example that
one chooses as its illustration; and realistic examples suggest
the intuition is not sound in the present context. Given
the amount of money at stake, it may be harder, not easier,
for a State to refuse highway funds than to refrain from en
tering the investment services business. See U. S. Dept.
of Commerce, Bureau of Census, Federal Aid to States for
Fiscal Year
p.
1999)
(Federal
(Apr.
Government
provided over $20billion to States for highways
1998).
It
is more compelling and oppressive for Congress to threaten
to withhold from a State fluids needed to educate its children
than to threaten to subject it to suit when it competes di
rectly with
*27
private
investment company. See id., at 5
(Federal
provided
Government
over $21 billion to States for
1998).
education in
The distinction that the majority seeks
to make—drawn in
gifts
terms of
and entitlements —does
not exist.
The majority is also wrong
say
to
that this Court has “nar
rowed” Parden in its “subsequent opinion^],” ante, at 680,
at least
any
in
way relevant to today’s decision. Parden con
sidered two separate
(1)
issues:
Does Congress have the
require
to
a State to waive
(2)
its immunity?
How
clearly must Congress speak when it does so? The Court
has narrowed
only
Parden
in respect to the second issue, not
the first; but today we are concerned only with the first.
The Court in Employees Dept.
Public Health
of
and
of
Wel
Mo. v. Department
fare of
Public Health and
of
Welfare of
Mo.,
698 immunity States” the of sovereign the lift not did
(“Congress
Parden,
limitation
Employees’
added)). And
(emphasis
nor
corporations
and
persons
private
where
area
“the
clar
context
the
in
place
took
enterprise,”
mally
the
ran
“Congress
(specifying
284
atS.,U.
411
ity,
power.
not
added)). Al
(emphasis
area
limited
outside
act”
can
holding in
Parden’s
limited
have
would
Justices
though two
required
simply have
would
limitation
power,
respect to
conse
notice
advance
the States
give
Congress to
noted,
they
as
which,
immunity),
(loss of
quence
(Marshall, J., con
296-297
S., at
411 U.
Parden.
happened
result).
curring in
no
offer
majority mentions
remaining cases
deciding
without
assume,
“We
said,
One
support.
greater
authority of
question,
intimating
viewa
federal
suit
unconsenting States
subject
Congress to
Amendment.”
§
Fourteenth
of5
confined
court
Transp., 488
Public
Highways
Dept.
Texas
v.Welch
legislative
considered
also
others
Two
468, 475
S.U.
247
supra, at
Hospital,
Atascadero
power.
clarity, not
indicating a
clearly
short”
far
“falls
Act
(Rehabilitation
Act); Edelman
under
funds
accepting
by a State
waiver
Security
(same
Social
(1974)
651,
U. S.
Jordan,
calling Par-
carefully avoided
Act).
Tribe
Seminole
Even
cannot,
specifying
While
question.
into
den
unilaterally
“abrogate
powers,
I
Article
itsof
exercise
open
it left
at S.,U.
suit,”
immunity from
the States’
Parden,
referring “unilaterally”
term
scope
“unremarkable,
standing for the
criticism,
without
*28
may waive
States
proposition
unrelated,
completely
except
short,
In
65.
at S.,U.
immunity,” 517
their
had
Court
this
member
no
majority,
today’s
those
today
the Court
Parden
holding of
questioned
ever
sal
attempting to
“merit
find
cannot
it
because
discards
680.
Ante, at
of it.”
any
vage
remnant
Parden had
questioned
never been
because, Seminole
Tribe or not, it still makes sense. The line the
today
Court
rejects has been
drawn
this
place
Court to
States outside
the ordinary dormant Commerce Clause rules when they act
as “market participants.” White v. Massachusetts Council
Constr. Employers, Inc.,
II
I resist all the more strongly the Courts extension of
Seminole Tribe in this case because, although I accept -pre-Seminole
Court’s
Tribe sovereign immunity decisions, I
yet
am not
ready to adhere to the proposition of law set forth
in Seminole Tribe. Cf. EEOC v. Wyoming,
eign
those
include
My reasons
Jus-
power.
Article
an I
already have described
and
Souter
Stevens
tices
detail.
surrounding debates
nor
text
(1)
constitutional
Neither
Ar-
Congress lacks
view
Tribe's
support Seminole
immunity in
sovereign
abrogate
State’s
I
ticle
eases). Seminole
diversity
(unlike
cases
federal-question
dissent-
J.,
(Stevens,
nn.
and
98,
atS., U.
82-88,
Tribe, 517
majori-
dissenting);
ef.
J.,
(Souter,
at 142-150
ing); id.,
ante,
argument,
687-688.
of this
ty’s characterization
support
legal
important
offer
(2)
precedents
The
help
Seminole
immunity
not
do
sovereign
doctrine
critically different
upon a
They
focus
all
majority.
Tribe
legislative
acting without
courts,
namely, whether
question,
immunity, whether
sovereign
state
abrogate
support, can
Principality
so. See
do
can
legislatively,
acting
Congress,
(1934);
Loui
v.
Hans
S. 313
292 U.
Mississippi,
v.
Monaco
2 Dall.
Georgia,
(1890);
Chisholm
1U. S.
siana, 134
supra, at
Tribe,
dissenting); Seminole
(Iredell,
(1793)
J.,
legislation
(“Because no federal
dissenting)
J.,
(Souter,
cannot
it
issue,
immunity
at pierce state
purporting
immunity to
sovereign
state
held
Hans
fairly be said
immunizing it
status
constitutional
some
attained
have
abrogation”).
from
doctrine.
immunity
a common-law
(3) Sovereign
selec-
doctrines
common-law
received
Nation
American
new
frequently
others, and
abandoning
some,
accepting
tively,
Nation’s
new
light
accepted
modifying those
supra, at
Tribe,
Seminole
circumstances.
special needs
federal-
Nation’s
new
dissenting). The
J.,
130-142
(Souter,
Nation), de-
(of
sovereignty
lodestar, dual
ist
im-
single-sovereign
traditional
modification
manded
to narrow
thereby permitting
doctrine,
munity
necessary.
immunity where
abolish
*30
(a) Dual sovereignty undercuts the doctrine’s traditional
“logical
practical”
justification,
(in
namely
the words of
Holmes),
Justice
that “there can be
legal
no
right
against
the authority that makes the law on which the right de
pends.” Kawananakoa v. Polyblank,
remedies) ignore the substantive federal law that binds them, thereby disabling the National Government and weak ening the very Union that the Constitution creates. Cf. Mc Culloch v. Maryland, 4 Wheat. (1819); 407-408 Cohens Virginia, 6 Wheat. 264, 386-387 (4) By interpreting the Constitution as rendering immu- table this one common-law (sovereign doctrine immunity), Seminole Tribe threatens the Nation’s ability to enact eco- nomic legislation needed for the future in way much the Lochner v. New York, 198 (1905), U. S. 45 threatened the Na- tion’s ability to enact legislation soeial years over 90 ago. I shall elaborate upon point. last-mentioned The sim- ilarity to Lochner lies in the risk that Seminole Tribe the Court’s subsequent cases will deprive Congress of neces- sary legislative flexibility. Their rules will make it more dif- ficult for Congress to create, example, a decentralized system of private individual say private remedies, a remedial system protect needed to intellectual property, including irrespective materials, educational
computer-related 21st-century ain system a such of, importance for, or need Postsecondary Ed. Prepaid Florida economy. Cf. advanced 656-660 at ante, (STE Bank, Savings College v.Bd. Expense work rules harm (illustrating the dissenting) J., VENS, inhibit will rules Similarly, those system). patent or say, incentive-based regimes, legal innovative creation ac deliberately take systems, regulatory decentralized re powers, roles, assigning differences local count citi but administrators, federal just sponsibility, private incorporate must regime such if least zens, *31 polluter) water (e. g., a State a against State remedy kind this needs ironically, effectively. Yet, work basic federalism’s of one achieve tois flexibility if of objectives. de- the with confused not should objective basic That of contours the doctrine, federalist any particular of tails Na- our of course the over changed have doctrine federalist Louisiana, for purchase Jefferson’s history. Thomas tion’s for a need the about debate great reshaped the example, powers; of federal interpretation literal, a than rather broad, right State’s a claim the ended effectively War the Civil its ulti- and Deal, New Second law; “nullify” a federal to legis- state and federal showed ratification, judicial mate Court’s exclusive; mutually authority were lative against protection clarified decisions rights” “civil basic to offers Amendment Fourteenth infringement fed- specific content instance each liberty. In human chang- Nation’s change to reflect had eralist doctrines slavery, Great end (territorial expansion, ing needs desegregation). Depression, unchang- one least reflect changing doctrines those But pro- helps to Federalism liberty. protection goal: ing helping the sense modern our simply in liberty not tect gov- by distant imposed restraints free remain individual among sharing by promoting directly more ernment, but governmental citizens of decisionmaking authority. See B. Constant, (B. Political Writings 307 1988)(de Fontana transl. scribing the “Liberty of the Ancients Compared with that of Moderns”). The ancient world understood the need to divide sovereign power among a nation's citizens, thereby creating government in which all would exercise that power; they called “free” the citizens who exercised so divided. Our Nation’s Founders understood the same, for they wrote Constitution that governmental divided author ity, that great retained power at state and local levels, and which foresaw, indeed assumed, democratic citizen participa government tion in at all levels, including levels that facili tated citizen participation closer to a citizen’s home.
In today’s legislative world, flexibility is necessary if we are protect this kind of liberty. Modern commerce and the technology upon which it rests need large markets and government seek large enough to secure trading rules that permit industry compete global in the marketplace, pre- pollution vent that crosses borders, and to assure adequate protection of health and safety by discouraging a regulatory “race to the bottom.” Yet local control over local decisions necessary. remains Uniform regulatory decisions about, for example, chemical waste disposal, pesticides, or food label- *32 ing, will directly daily affect life in every locality. they But may reflect differing views among localities about the rela- tive importance of the wage levels or prefer- environmental ences that underlie them. Local control can take account of such concerns and help to maintain a sense of community despite global forces that threaten it. Federalism matters to ordinary citizens seeking to maintain a degree of control, a sense of community, in an increasingly interrelated and complex world. Courts can remain sensitive to these needs they when in-
terpret statutes apply constitutional provisions, for ex- ample, the dormant Commerce Clause. But courts cannot easily draw the proper basic lines of authority. The proper
704 context highly often is balance
local/national/international are allocate would that rules judicial And specific. laws write can however, Legislatures, broad. too far often regula- Specific balance. embody that specifically more that certain leave that lines draw can example, for schemes, tory com- local States, involve that untouched, or authority local funds, grant the through directly citizens or munities, context, upon Depending privileges. or rights, powers, among citi- interaction require or encourage may Congress why is That government. levels working various zens a flexi- demands problem federalist substantive modern the help (and not it does response legislative context-specific ble, immunity view ahistorie an constitutionalize place limitations, tends remedial freezing its that, law). reach beyond its may achieve Congress possibility recognize I S.U. Young, 209 parte ways. Ex in other objectives damages only where though effective available, (1908),is still create might too, Congress, important. are remedies bureaucracy “enforcement” damages-eollecting federal prefer to Congress would responsibilities charged with Alden eitizens, private of States hands place S. U. States, v. United Printz 755-756; post, at Maine, Con perhaps dissenting). Or (1997) J., (Breyer, (includ seeks results achieve able bewill gress necessary embodying the decentralization) ing case, programs funding federal “waivers” —in burden upon impose simply decisions Court’s reason. apparent no legislation, rewriting satisfactory. Unfortu- alternatives these none But separate decisions today’s related Tribe nately, Seminole strand skein—a federalist from strand formal one time since antirepublican understood been has im- anof level strand they elevate Cicero—and *33 thought of akin more principle constitutional mutable role so when They do Madison. of James I than James sovereign immunity once played in helping to assure the States that political their independence would remain even after joining the Union no longer holds stage. center See Nevada v. Hall, 440 U. S. 410, 418 They do so when a federal court’s ability to enforce judgment its against a State is no longer a major concern. See The Federalist (C. No. p. 81, 488 1961)(A. Rossiter ed. Hamilton). they And do so without adequate legal support grounded in either his- tory practical need. To the contrary, by making that doc- trine immune from congressional Article I modification, the Court makes it more difficult for Congress to decentralize governmental decisionmaking and provide individual citi- zens, or local communities, with a variety of enforcement powers. By diminishing congressional flexibility to do so, the Court makes it somewhat more difficult to satisfy mod- ern federalism’s more important liberty-protecting needs. In this sense, is counterproductive. III
I do not know whether the State has engaged in false ad- vertising or unfair competition College Savings Bank al- leges. But this ease was dismissed at the threshold. Con- gress has clearly said that College Savings Bank may bring a Lanham Act suit in these circumstances. For the reasons set forth opinion, I believe Congress has the constitu- tional so provide. I would therefore reverse judgment of the Court of Appeals.