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ruling in Federal Maritime Commission v. South Carolina State Ports Authority, 42 which held that state sovereign immunity also applies to quasi-judicial proceedings in federal agencies. The operator of a cruise ship devoted to gambling had been denied entry to the Port of Charleston, and subsequently filed a complaint with the Federal Maritime Commission, alleging a violation of the Shipping Act of 1984. 43 Justice Breyer, writing for the four dissenting justices, emphasized the executive (as opposed to judicial nature) of such agency adjudications, and pointed out that the ultimate enforcement of such proceedings in federal court was exercised by a VerDate Apr<15>2004 14:46 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00008 Fmt 8222 Sfmt 8222 C:\CONAN\CON041.SGM PRFM99 PsN: CON041 AMENDMENT 11—SUITS AGAINST STATES 1633 44 122 S. Ct. at 1872, 1874. 45 E.g., Employees of the Dep’t of Public Health and Welfare v. Department of Public Health and Welfare, 411 U.S. 279, 291–92 (1973) (Justice Marshall concurring); Nevada v. Hall, 440 U.S. 410, 420–21 (1979); Patsy v. Florida Board of Regents, 457 U.S. 496, 520 (1982) (Justice Powell dissenting); Seminole Tribe of Florida v. Florida, 517 U.S. 44, 64 (1996). 46 415 U.S. 651 (1974). 47 415 U.S. at 678. The Court relied on Ford Motor Co. v. Department of Treasury, 323 U.S. 459 (1945), where the issue was whether state officials who had voluntarily appeared in federal court had authority under state law to waive the State’s immunity. Edelman has been followed in Sosna v. Iowa, 419 U.S. 393, 396 n.2 (1975); Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 278 (1977), with respect to the Court’s responsibility to raise the Eleventh Amendment jurisdictional issue on its own motion. 48 See Patsy v. Florida Board of Regents, 457 U.S. 496, 515–16 n.19 (1982), in which the Court bypassed the Eleventh Amendment issue, which had been brought to its attention, because of the interest of the parties in having the question resolved on the merits. See id. at 520 (Justice Powell dissenting). 49 Clark v. Barnard, 108 U.S. 436 (1883). federal agency (as is allowed under the doctrine of sovereign immunity). The majority, however, while admitting to a ‘‘relatively barren historical record,’’ presumed that when a proceeding was ‘‘unheard of’’ at the time of the founding of the Constitution, it could not subsequently be applied in derogation of a ‘‘State’s dignity’’ within our system of federalism. 44 The Nature of the States’ Immunity A great deal of the difficulty in interpreting and applying the Eleventh Amendment stems from the fact that the Court has not been clear, or at least has not been consistent, with respect to what the Amendment really does and how it relates to the other parts of the Constitution. One view of the Amendment, set out above in the discussion of Hans v. Louisiana, Ex parte New York, and Principality of Monaco, is that Chisholm was erroneously decided and that the Amendment’s effect, its express language notwithstanding, was to restore the ‘‘original understanding’’ that Article III’s grants of federal court jurisdiction did not extend to suits against the States. That view finds present day expression. 45 It explains the decision in Edelman v. Jordan, 46 in which the Court held that a State could properly raise its Eleventh Amendment defense on appeal after having defended and lost on the merits in the trial court. ‘‘[I]t has been well settled . . . that the Eleventh Amendment defense sufficiently partakes of the nature of a jurisdictional bar so that it need not be raised in the trial court.’’ 47 But that the bar is not wholly jurisdictional seems established as well. 48 Moreover, if under Article III there is no jurisdiction of suits against States, the settled principle that States may consent to suit 49 becomes conceptually difficult, inasmuch as it is not possible VerDate Apr<15>2004 14:46 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00009 Fmt 8222 Sfmt 8222 C:\CONAN\CON041.SGM PRFM99 PsN: CON041 1634 AMENDMENT 11—SUITS AGAINST STATES 50 E.g., People’s Band v. Calhoun, 102 U.S. 256, 260–61 (1880). See Justice Powell’s explanation in Patsy v. Florida Board of Regents, 457 U.S. 496, 528 n.13 (1982) (dissenting) (no jurisdiction under Article III of suits against unconsenting States). 51 See, e.g., the Court’s express rejection of the Eleventh Amendment defense in these cases. United States v. Texas, 143 U.S. 621 (1892); South Dakota v. North Carolina, 192 U.S. 286 (1904). 52 E.g., Fitzpatrick v. Bitzer, 427 U.S. 445 (1976); Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989). 53 The principal citation is, of course, Marbury v. Madison, 5 U.S. (1 Cr.) 137 (1803). 54 Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 98, 99 (1984). 55 As Justice Holmes explained, the doctrine is based ‘‘on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends.’’ Kawananakoa v. Polyblank, 205 U.S. 349, 353 (1907). Of course, when a state is sued in federal court pursuant to federal law, the Federal Government, not the defendant state, is ‘‘the authority that makes the law’’ creating the right of action. See Seminole Tribe of Florida v. Florida, 517 U.S. 44, 154 (1996) (Justice Souter dissenting). On the sovereign immunity of the United States, see supra pp. 746–48. For the history and jurisprudence, see Jaffe, Suits Against Governments and Officers: Sovereign Immunity, 77 HARV. L. REV. 1 (1963). 56 Alden v. Maine, 527 U.S. 706, 713 (1999). 57 See, e.g., United States v. Lee, 106 U.S. 196, 210–14 (1882); Belknap v. Schild, 161 U.S. 10, 18 (1896); Hopkins v. Clemson Agricultural College, 221 U.S. 636, 642– 43, 645 (1911). 58 A sovereign may consent to suit. E.g., United States v. Sherwood, 312 U.S. 584, 586 (1941); United States v. United States Fidelity & Guaranty Co., 309 U.S. 506, 514 (1940). to confer jurisdiction where it is lacking through the consent of the parties. 50 And there is jurisdiction under Article III of some suits against States, such as those brought by the United States or by other States. 51 And, furthermore, Congress is able in at least some instances to legislate away state immunity, 52 although it may not enlarge Article III jurisdiction. 53 The Court has recently declared that ‘‘the principle of sovereign immunity [reflected in the Eleventh Amendment] is a constitutional limitation on the federal judicial power established in Art. III,’’ but almost in the same breath has acknowledged that ‘‘[a] sovereign’s immunity may be waived.’’ 54 Another explanation of the Eleventh Amendment is that it recognizes the doctrine of sovereign immunity, which was clearly established at the time: a state was not subject to suit without its consent. 55 This view also has support in modern case law: ‘‘the State’s immunity from suit is a fundamental aspect of sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today . . .’’ 56 The Court in dealing with questions of governmental immunity from suit has traditionally treated interchangeably precedents dealing with state immunity and those dealing with federal governmental immunity. 57 Viewing the Amendment and its radiations into Article III in this way provides a consistent explanation of the consent to suit as a waiver. 58 The limited effect of the doctrine in this context in federal court arises VerDate Apr<15>2004 14:46 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00010 Fmt 8222 Sfmt 8222 C:\CONAN\CON041.SGM PRFM99 PsN: CON041 AMENDMENT 11—SUITS AGAINST STATES 1635 59 See Fletcher, supra. 60 440 U.S. 410 (1979). 61 440 U.S. at 424 n.24. The Court looked to the full faith and credit clause as a possible constitutional limitation. The dissent would have found implicit constitutional assurance of state immunity as an essential component of federalism. Id. at 427 (Justice Blackmun), 432 (Justice Rehnquist). 62 For a while only Justice Brennan advocated this view, Parden v. Terminal Ry., 377 U.S. 184 (1964); Employees of the Dep’t of Pub. Health and Welfare v. Department of Pub. Health and Welfare, 411 U.S. 279, 298 (1973) (dissenting), but in time he was joined by three others. See, e.g., Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 247 (1985) (Justice Brennan, joined by Justices Marshall, Blackmun, and Stevens, dissenting). 63 E.g., United States v. Texas, 143 U.S. 621 (1892); South Dakota v. North Carolina, 192 U.S. 286 (1904). See Kansas v. Colorado, 533 U.S. 1 (2001) (state may from the fact that traditional sovereign immunity arose in a unitary state, barring unconsented suit against a sovereign in its own courts or the courts of another sovereign. But upon entering the Union the States surrendered their sovereignty to some undetermined and changing degree to the national government, a sovereign that does not have plenary power over them but which is more than their coequal. 59 Thus, outside the area of federal court jurisdiction, there is the case of Nevada v. Hall, 60 which perfectly illustrates the difficulty. The case arose when a California resident sued a Nevada state agency in a California court because one of the agency’s employees negligently injured him in an automobile accident in California. While recognizing that the rule during the framing of the Constitution was that a State could not be sued without its consent in the courts of another sovereign, the Court discerned no evidence in the federal constitutional structure, in the specific language, or in the intention of the Framers that would impose a general, federal constitutional constraint upon the action of a State in authorizing suit in its own courts against another State. The Court did imply that in some cases a ‘‘substantial threat to our constitutional system of cooperative federalism’’ might arise and occasion a different result, but this was not such a case. 61 Within the area of federal court jurisdiction, the issue becomes the extent to which the States upon entering the Union gave up their immunity to suit in federal court. Chisholm held, and the Eleventh Amendment reversed the holding, that the States had given up their immunity to suit in diversity cases based on common law or state law causes of action; Hans v. Louisiana and subsequent cases held that the Amendment in effect codified an understanding of broader immunity to suits based on federal causes of action. 62 Other cases have held that the States did give up their immunity to suits by the United States or by other States and that subjection to suit continues. 63 VerDate Apr<15>2004 14:46 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00011 Fmt 8222 Sfmt 8222 C:\CONAN\CON041.SGM PRFM99 PsN: CON041 1636 AMENDMENT 11—SUITS AGAINST STATES seek damages from another state, including damages to its citizens, provided it shows that the state has an independent interest in the proceeding). 64 E.g., Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976); Quern v. Jordan, 440 U.S. 332, 337 (1979). 65 See Hutto v. Finney, 437 U.S. 678 (1978), in which the various opinions differ among themselves on the degree of explicitness required. See also Quern v. Jordan, 440 U.S. 332, 343–45 (1979). Later cases stiffened the rule of construction. See n.56, infra, and text at nn. 79–84. The parallelism of congressional power to regulate and to legislate away immunity is not exact. Thus, in Employees of the Dep’t of Pub. Health and Welfare v. Department of Pub. Health and Welfare, 411 U.S. 279 (1973), the Court strictly construed congressional provision of suits as not reaching States, while in Maryland v. Wirtz, 392 U.S. 183 (1968), it had sustained the constitutionality of the substantive law. 66 Gunter v. Atlantic Coast Line R.R., 200 U.S. 273, 284 (1906). 67 Smith v. Reeves, 178 U.S. 436 (1900); Murray v. Wilson Distilling Co., 213 U.S. 151, 172 (1909); Graves v. Texas Co., 298 U.S. 393, 403–04 (1936); Great Northern Life Ins. Co. v. Read, 322 U.S. 47 (1944). 68 Great Northern Life Ins. Co. v. Read, 322 U.S. 47, 54 (1944); Ford Motor Co. v. Department of Treasury, 323 U.S. 459 (1945); Kennecott Copper Corp. v. State Tax Comm’n, 327 U.S. 573 (1947); Petty v. Tennessee-Missouri Bridge Comm’n, 359 U.S. 275 (1959); Florida Dep’t of Health v. Florida Nursing Home Ass’n, 450 U.S. 147 (1981). Compare Patsy v. Florida Bd. of Regents, 457 U.S. 496, 519 n.* (1982) (Justice White concurring), with id. at 522 and n.5 (Justice Powell dissenting). Still another view of the Eleventh Amendment is that it embodies a state sovereignty principle limiting the power of the Federal Government. 64 In this respect, the federal courts may not act without congressional guidance in subjecting States to suit, and Congress, which can act to the extent of its granted powers, is constrained by judicially-created doctrines requiring it to be explicit when it legislates against state immunity. 65 Suits Against States Aside from suits against States by the United States and by other States, there are permissible suits by individuals against States upon federal constitutional and statutory grounds and indeed upon grounds expressly covered by the Eleventh Amendment in somewhat fewer circumstances. Consent to Suit and Waiver.—The immunity of a State from suit is a privilege which it may waive at its pleasure. It may do so by a law specifically consenting to suit in the federal courts. 66 But the conclusion that there has been consent or a waiver is not lightly inferred; the Court strictly construes statutes alleged to consent to suit. Thus, a State may waive its immunity in its own courts without consenting to suit in federal court, 67 and a general authorization ‘‘to sue and be sued’’ is ordinarily insufficient to constitute consent. 68 ‘‘The Court will give effect to a State’s waiver of Eleventh Amendment immunity ‘only where stated by the most express language or by such overwhelming implication from the text as [will] leave no room for any other reasonable construction.’ . . . VerDate Apr<15>2004 13:52 Aug 18, 2004 Jkt 077500 PO 00000 Frm 00012 Fmt 8222 Sfmt 8222 C:\CONAN\CON041.SGM PRFM99 PsN: CON041 AMENDMENT 11—SUITS AGAINST STATES 1637 69 Port Authority Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 305–06 (1990) (internal citations omitted; emphasis in original). 70 495 U.S. 299 (1990). 71 495 U.S. at 306-07. See, on the other hand, Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241 (1985). 72 377 U.S. 184 (1964). The alternative but interwoven ground had to do with Congress’ power to withdraw immunity. See also Petty v. Tennessee-Missouri Bridge Comm’n, 359 U.S. 275 (1959). 73 Edelman v. Jordan, 415 U.S. 651, 671–72 (1974). For the same distinction in the Tenth Amendment context, see National League of Cities v. Usery, 426 U.S. 833, 854 n.18 (1976). 74 Edelman v. Jordan, 415 U.S. 651 (1974) (quoting id. at 673, Murray v. Wilson Distilling Co., 213 U.S. 151, 171 (1909)); Florida Dep’t of Health v. Florida Nursing Home Ass’n, 450 U.S. 147 (1981). Of the four Edelman dissenters, Justices Marshall and Blackmun found waiver through knowing participation, 415 U.S. at 688. In Florida Dep’t, Justice Stevens noted he would have agreed with them had he been on the Court at the time but that he would now adhere to Edelman. Id. at 151. A State does not waive its Eleventh Amendment immunity by consenting to suit only in its own courts . . . and ‘[t]hus, in order for a state statute or constitutional provision to constitute a waiver of Eleventh Amendment immunity, it must specify the State’s intention to subject itself to suit in federal court.’’’ 69 Thus, in Port Authority Trans-Hudson Corp. v. Feeney, 70 an expansive consent ‘‘to suits, actions, or proceedings of any form or nature at law, in equity or otherwise . . .’’ was deemed too ‘‘ambiguous and general’’ to waive immunity in federal court, since it might be interpreted to reflect only a State’s consent to suit in its own courts. But when combined with language specifying that consent was conditioned on venue being laid ‘‘within a county or judicial district, established by one of said States or by the United States, and situated wholly or partially within the Port of New York District,’’ waiver was effective. 71 While the Court in a few cases has found a waiver by implication, the current vitality of these cases is questionable. Thus, in Parden v. Terminal Railway, 72 the Court ruled that employees of a state-owned railroad could sue the State for damages under the Federal Employers’ Liability Act. One of the two primary grounds for finding lack of immunity was that by taking control of a railroad which was subject to the FELA, enacted some 20 years previously, the State had effectively accepted the imposition of the Act and consented to suit. 73 Distinguishing Parden as involving a proprietary activity, the Court subsequently refused to find any implied consent to suit by States participating in federal spending programs; participation was insufficient, and only when waiver has been ‘‘stated by the most express language or by such overwhelming implications from the text as [will] leave no room for any other reasonable construction,’’ will it be found. 74 This aspect of VerDate Apr<15>2004 13:52 Aug 18, 2004 Jkt 077500 PO 00000 Frm 00013 Fmt 8222 Sfmt 8222 C:\CONAN\CON041.SGM PRFM99 PsN: CON041 1638 AMENDMENT 11—SUITS AGAINST STATES 75 Welch v. Texas Dep’t of Highways and Pub. Transp., 483 U.S. 468 (1987). Justice Powell’s plurality opinion was joined by Chief Justice Rehnquist and by Justices White and O’Connor. Justice Scalia, concurring, thought Parden should be overruled because it must be assumed that Congress enacted the FELA and other statutes with the understanding that Hans v. Louisiana shielded states from immunity. Id. at 495. 76 108 U.S. 436 (1883). 77 Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 466–467 (1945); Edelman v. Jordan, 415 U.S. 651, 677–678 (1974). 78 Lapides v. Board of Regents of University System of Georgia, 122 S. Ct. 1640 (2002). 79 Lake County Estates v. Tahoe Regional Planning Agency, 440 U.S. 391, 400– 01 (1979), citing Edelman v. Jordan, 415 U.S. 651 (1974); and Ford Motor Co. v. Department of Treasury, 323 U.S. 459 (1945). The fact that a state agency can be indemnified for the costs of litigation does not divest the agency of its Eleventh Amendment immunity. Regents of the University of California v. Doe, 519 U.S. 425 (1997). Parden has now been overruled, a plurality of the Court emphasizing that congressional abrogation of immunity must be express and unmistakable. 75 Similarly, a State may waive its immunity by initiating or participating in litigation. In Clark v. Barnard, 76 the State had filed a claim for disputed money deposited in a federal court, and the Court held that the State could not thereafter complain when the court awarded the money to another claimant. However, the Court is loath to find a waiver simply because of the decision of an official or an attorney representing the State to litigate the merits of a suit, so that a State may at any point in litigation raise a claim of immunity based on whether that official has the authority under state law to make a valid waiver. 77 However, this argument is only available when the State is brought into federal court involuntarily. If a State voluntarily agrees to removal of a state action to federal court, the Court has held it may not then invoke a defense of sovereign immunity and thereby gain an unfair tactical advantage. 78 With respect to governmental entities that derive their authority from the State, but are not the State, the Court closely examines state law to determine what the nature of the entity is, whether it is an arm of the State or whether it is to be treated like a municipal corporation or other political subdivision. An arm of the State has immunity: ‘‘agencies exercising state power have been permitted to invoke the Amendment in order to protect the state treasury from liability that would have had essentially the same practical consequences as a judgment against the State itself.’’ 79 Municipal corporations, though they partake under state law of the State’s immunity, do not have immunity in federal court and the VerDate Apr<15>2004 14:46 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00014 Fmt 8222 Sfmt 8222 C:\CONAN\CON041.SGM PRFM99 PsN: CON041 AMENDMENT 11—SUITS AGAINST STATES 1639 80 Lincoln County v. Luning, 133 U.S. 529 (1890); Chicot County v. Sherwood, 148 U.S. 529 (1893); Workman v. City of New York, 179 U.S. 552 (1900); Moor v. County of Alameda, 411 U.S. 693 (1973); Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274 (1977). Notice that in National League of Cities v. Usery, 426 U.S. 833 (1976), the Court extended the state immunity from regulation in that case to political subdivisions as well. 81 Lake County Estates v. Tahoe Regional Planning Agency, 440 U.S. 391 (1979); Petty v. Tennessee-Missouri Bridge Comm’n, 359 U.S. 275 (1959). 82 Fitzpatrick v. Bitzer, 427 U.S. 445 (1976); Hutto v. Finney, 437 U.S. 678 (1978); City of Rome v. United States, 446 U.S. 156 (1980). More recent cases affirming Congress’ § 5 powers include: Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 99 (1984); Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238 (1985); Dellmuth v. Muth, 491 U.S. 223, 227 (1989). 83 Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976). 84 427 U.S. at 456 (under the Fourteenth Amendment, Congress may ‘‘provide for private suits against States or state officials which are constitutionally impermissible in other contexts.’’) 85 In Maher v. Gagne, 448 U.S. 122 (1980), the Court found that Congress could validly authorize imposition of attorneys’ fees on the State following settlement of a suit based on both constitutional and statutory grounds, even though settlement had prevented determination that there had been a constitutional violation. Maine v. Thiboutot, 448 U.S. 1 (1980), held that § 1983 suits could be premised on federal statutory as well as constitutional grounds. Other cases in which attorneys’ fees were awarded against States are Hutto v. Finney, 437 U.S. 678 (1978); and New York Gaslight Club v. Carey, 447 U.S. 54 (1980). States may not confer it. 80 Entities created through interstate compacts (subject to congressional approval) generally also are subject to suit. 81 Congressional Withdrawal of Immunity.—The Constitution grants to Congress power to legislate in ways that affect the States. At least in some instances when Congress does so, it may subject the States themselves to suit at the initiation of individuals to implement the legislation. The clearest example arises from the Reconstruction Amendments, which are direct restrictions upon state powers and which expressly provide for congressional implementing legislation. 82 Thus, ‘‘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.’’ 83 Dwelling on the fact that the Fourteenth Amendment was ratified after the Eleventh became part of the Constitution, the Court implied that earlier grants of legislative power to Congress in the body of the Constitution might not contain a similar power to authorize suits against the States. 84 The power to enforce the Civil War Amendments is substantive, however, not being limited to remedying judicially cognizable violations of the amendments, but extending as well to measures that in Congress’ judgment will promote compliance. 85 The principal judicial brake on this power to abrogate state immunity has been application of a VerDate Apr<15>2004 14:46 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00015 Fmt 8222 Sfmt 8222 C:\CONAN\CON041.SGM PRFM99 PsN: CON041 1640 AMENDMENT 11—SUITS AGAINST STATES 86 Even prior to the recent tightening of the rule to require clear expression in the statutory language itself (see n. and accompanying text, infra), application of the rule curbed congressional enforcement. Fitzpatrick v. Bitzer, 427 U.S. 445 451–53 (1976); Hutto v. Finney, 437 U.S. 678, 693–98 (1978). Because of its rule of clear statement, the Court in Quern v. Jordan, 440 U.S. 332 (1979), held that in enacting 42 U.S.C. § 1983, Congress had not intended to include States within the term ‘‘person’’ for the purpose of subjecting them to suit. The question arose after Monell v. New York City Dep’t of Social Services, 436 U.S. 658 (1978), reinterpreted ‘‘person’’ to include municipal corporations. Cf. Alabama v. Pugh, 438 U.S. 781 (1978). The Court has reserved the question whether the Fourteenth Amendment itself, without congressional action, modifies the Eleventh Amendment to permit suits against States, Milliken v. Bradley, 433 U.S. 267, 290 n.23 (1977), but the result in Milliken, holding that the Governor could be enjoined to pay half the cost of providing compensatory education for certain schools, which would come from the state treasury, and in Scheuer v. Rhodes, 416 U.S. 232 (1974), permitting imposition of damages upon the governor, which would come from the state treasury, is suggestive. But see Mauclet v. Nyquist, 406 F. Supp. 1233 (W.D.N.Y. 1976) (refusing money damages under the Fourteenth Amendment), appeal dismissed sub nom. Rabinovitch v. Nyquist, 433 U.S. 901 (1977). The Court declined in Ex parte Young, 209 U.S. 123, 150 (1908), to view the Eleventh Amendment as modified by the Fourteenth. 87 491 U.S. 1 (1989). The plurality opinion of the Court was by Justice Brennan and was joined by the three other Justices who believed Hans was incorrectly decided. See id. at 23 (Justice Stevens concurring). The fifth vote was provided by Justice White, id. at 45, 55–56 (Justice White concurring), although he believed Hans was correctly decided and ought to be maintained and although he did not believe Congress had acted with sufficient clarity in the statutes before the Court to abrogate immunity. Justice Scalia thought the statutes were express enough but that Congress simply lacked the power. Id. at 29. Chief Justice Rehnquist and Justices O’Connor and Kennedy joined relevant portions of both opinions finding lack of power and lack of clarity.

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