college savings bank florida prepaid postsecondary education expense board et argued april decided june individual may sue state congress authorized suit exercise power enforce fourteenth amendment fitzpatrick bitzer state waived sovereign immunity consenting suit clark barnard trademark remedy clarification act trca subjects suits brought trademark act lanham act false misleading advertising petitioner markets sells certificates deposit designed finance college costs respondent florida prepaid postsecondary education expense board florida prepaid florida state entity began tuition prepayment program petitioner filed suit alleging florida prepaid violated misrepresenting program granting florida prepaid motion dismiss sovereign immunity grounds district rejected arguments made petitioner intervened constructive waiver doctrine parden terminal docks florida prepaid waived immunity engaging interstate marketing administration program trca made clear activity subject suit congress abrogation sovereign immunity trca effective since enacted enforce fourteenth amendment due process clause third circuit affirmed held federal courts jurisdiction entertain suit florida sovereign immunity neither validly abrogated trca voluntarily waived pp trca abrogate florida sovereign immunity congress may legislate fourteenth amendment enforce amendment provisions object legislation must remediation prevention constitutional violations petitioner argument congress enacted trca remedy prevent state deprivations two property interests without due process rejected neither right free business competitor false advertising product right secure one business interests qualifies protected property right first hallmark constitutionally protected property interest right exclude others lanham act provisions bear relationship right exclude florida prepaid alleged misrepresentation concerning products intruded upon interest petitioner exclusive dominion second asserted property interest business assets property state taking assets deprivation business sense activity business making profit property impinged upon competitor false advertising product pp florida sovereign immunity voluntarily waived activities interstate commerce generally waiver occurs state voluntarily invokes clearly declares intends submit jurisdiction federal courts petitioner maintain implied constructive waiver possible congress provides unambiguously state subject private suit engages certain federally regulated conduct state voluntarily elects engage conduct rely decision parden supra held federal employers liability act authorized private suit operating railroads virtue general provision permitting suit common carriers engaged interstate commerce never applied parden holding another statute fact narrowed case every subsequent opinion consideration even supplemented requirement unambiguous statement congressional intent subject suit parden squared cases requiring state express waiver sovereign immunity unequivocal see great northern life ins read also inconsistent recent decision seminole tribe relevant asserted basis constructive waiver conduct state undertaken profit traditionally performed private entities otherwise resembles behavior ket participants whatever may remain decision parden expressly overruled pp affirmed scalia delivered opinion rehnquist kennedy thomas joined stevens filed dissenting opinion breyer filed dissenting opinion stevens souter ginsburg joined college savings bank petitioner florida prepaid postsecondary education expense board et al writ certiorari appeals third circuit june justice scalia delivered opinion trademark remedy clarification act trca stat subjects suits brought trademark act lanham act false misleading advertising stat question presented case whether provision effective permit suit state alleged misrepresentation product either trca effects constitutionally permissible abrogation state sovereign immunity trca operates invitation waiver immunity automatically accepted state engaging activities regulated lanham act chisholm georgia dall asserted jurisdiction action assumpsit brought south carolina citizen state georgia reasoned georgia sovereign immunity qualified general jurisdictional provisions article iii specifically provision extending federal judicial power controversies state citizens another state art iii cl shock surprise created decision principality monaco mississippi prompted immediate adoption eleventh amendment provides judicial power shall construed extend suit law equity commenced prosecuted one citizens another state citizens subjects foreign state though precise terms bar federal jurisdiction suits brought one state citizens another state foreign state long recognized eleventh amendment accomplished much repudiated central premise chisholm jurisdictional heads article iii superseded sovereign immunity possessed entering union understanding amendment since landmark case hans louisiana see also ex parte new york principality monaco supra pennhurst state school hospital halderman seminole tribe florida immunity suit absolute recognized two circumstances individual may sue state first congress may authorize suit exercise power enforce fourteenth amendment amendment enacted eleventh amendment specifically designed alter balance fitzpatrick bitzer second state may waive sovereign immunity consenting suit clark barnard case turns whether either two circumstances present ii section lanham act enacted created private right action ny person uses false descriptions makes false representations commerce trca amends defining person include state instrumentality state employee state instrumentality state acting official capacity stat trca amends lanham act provide state entities shall immune eleventh amendment constitution doctrine sovereign immunity suit federal person including governmental nongovernmental entity violation act remedies shall available state entities extent remedies available suit nonstate entity codified petitioner college savings bank new jersey chartered bank located princeton new jersey since marketed sold collegesure certificates deposit designed finance costs college education college savings holds patent upon methodology administering collegesure certificates respondent florida prepaid postsecondary education expense board florida prepaid arm state florida since administered tuition prepayment program designed provide individuals sufficient funds cover future college expenses college savings brought patent infringement action florida prepaid district new jersey action subject today decision florida prepaid postsecondary ed expense bd college savings bank ante addition college savings filed instant action alleging florida prepaid violated lanham act making misstatements tuition savings plans brochures annual reports florida prepaid moved dismiss action ground barred sovereign immunity argued congress abrogated sovereign immunity case trca enacted pursuant congress powers article constitution decisions seminole tribe supra fitzpatrick supra congress abrogate state sovereign immunity legislates enforce fourteenth amendment intervened defend constitutionality trca college savings argued doctrine constructive waiver articulated parden terminal docks dept florida prepaid waived immunity lanham act suits engaging interstate marketing administration program trca made clear activity subject florida prepaid suit college savings also argued congress purported abrogation florida prepaid sovereign immunity trca effective since enacted merely pursuant article also enforce due process clause fourteenth amendment district rejected arguments granted florida prepaid motion dismiss supp appeals affirmed granted certiorari iii turn first contention florida sovereign immunity validly abrogated decision three terms ago seminole tribe supra held power regulate commerce conferred article constitution gives congress authority abrogate state sovereign immunity authority abrogation present case petitioner relies upon fourteenth amendment held fitzpatrick bitzer reaffirmed seminole tribe see used purpose section fourteenth amendment provides state shall deprive person property without due process law section provides congress shall power enforce appropriate legislation provisions article made clear city boerne flores term enforce taken seriously object valid legislation must carefully delimited remediation prevention constitutional violations petitioner claims respect lanham act congress enacted trca remedy prevent state deprivations without due process two species property rights right free business competitor false advertising product generalized right secure one business interests neither qualifies property right protected due process clause first hallmark protected property interest right exclude others one essential sticks bundle rights commonly characterized property kaiser aetna right possess use public lands property right anyone hence sardonic maxim explaining economists call tragedy commons res publica res nullius lanham act may well contain provisions protect constitutionally cognizable property interests notably provisions dealing infringement trademarks property owner exclude others using see mart cartier trademark law like contract law confers private rights rights exclusion grants trademark owner bundle rights lanham act provisions however bear relationship right exclude florida prepaid alleged misrepresentations concerning products intruded upon interest petitioner exclusive dominion unsurprisingly petitioner points decision matter recognizing property right freedom competitor false advertising products closest petitioner comes dicta international news service associated press found equity jurisdiction claim rule equity concerns protection property rights treats civil right pecuniary nature property right say equity treats civil right pecuniary nature property right say civil rights pecuniary nature property rights fact one reads full passage statement taken clear saying opposite namely equity treat civil rights pecuniary nature property rights even though properly order sustain jurisdiction equity controversy need affirm general absolute property news rule equity concerns protection property rights treats civil right pecuniary nature property right right quire property honest labor conduct lawful business much entitled protection right guard property already acquired right furnishes basis jurisdiction ordinary case unfair competition id may also note unfair competition issue international news service amounted nothing short theft proprietary information something power exclude others said exist see id petitioner argues tort unfair competition definition protects property interests brief petitioner thus trca definition designed remedy prevent deprivations interests context even logical matter follow since everything protects property interests designed remedy prevent deprivations property interests municipal ordinance prohibiting billboards residential areas protects property interests homeowners although erecting billboards ordinarily deprive property sweep within fourteenth amendment elusive property interests definition protected law violate frequent admonition due process clause merely font tort law paul davis petitioner second assertion property interest rests upon argument similar one discussed suffers flaw petitioner argues businesses property within meaning due process clause congress legislates passes law prevents state interference business false advertising brief petitioner assets business including good unquestionably property state taking assets unquestionably deprivation fourteenth amendment business sense activity business activity making profit property ordinary sense business asset impinged upon competitors false advertising finding deprivation property issue need pursue question city boerne otherwise require us resolve whether prophylactic measure taken purported authority prohibition claims violation fourteenth amendment genuinely necessary prevent violation fourteenth amendment turn next question whether florida sovereign immunity though abrogated voluntarily waived iv long recognized state sovereign immunity personal privilege may waive pleasure clark barnard decision waive immunity however altogether voluntary part sovereignty beers arkansas accordingly test determining whether state waived immunity jurisdiction stringent one atascadero state hospital scanlon generally find waiver either state voluntarily invokes jurisdiction gunter atlantic coast line else state makes clear declaration intends submit jurisdiction great northern life ins read see also pennhurst state school hospital halderman state consent suit must unequivocally expressed thus state consent suit federal merely consenting suit courts creation smith reeves consent suit federal merely stating intention sue sued florida dept health rehabilitative servs florida nursing home assn per curiam even authorizing suits competent jurisdiction kennecott copper state tax even held state may absent contractual commitment contrary alter conditions waiver apply changes pending suit beers arkansas supra suggestion respondent florida prepaid expressly consented sued federal case state affirmatively invoked jurisdiction rather petitioner college savings maintain florida prepaid impliedly constructively waived immunity lanham act suit authority parden terminal docks dept elliptical opinion stands nadir waiver matter sovereign immunity jurisprudence parden permitted employees railroad owned operated alabama bring action federal employers liability act fela employer despite absence provision statute specifically referring held act authorized suits virtue general provision subjecting suit common carrier railroad engaging commerce several held alabama waived immunity fela suit even though alabama law expressly disavowed waiver enacting fela congress conditioned right operate railroad interstate commerce upon amenability suit federal provided act thereafter operating railroad interstate commerce alabama must taken accepted condition thus consented suit four dissenting justices parden refused infer waiver congress expressly declared state operating commerce subject liability went acknowledge concession strictly speaking necessary analysis congress possessed power effect waiver state constitutionally protected immunity long clarity id opinion white nine years later employees dept public health welfare mo department public health welfare mo began retreat parden case held opinion written one parden dissenters solitary dissent parden author state missouri immune suit brought fair labor standards act employees state health facilities although statute specifically covered state hospitals question see ed coverage unquestionably enforceable federal think statute expressed clarity congress intention supersede immunity suits brought individuals put one side parden case characterized involving dramatic circumstances rather isolated state activity unlike provision fair labor standards act question applied broad class state employees also distinguished railroad parden ground operated profit area private persons corporations normally ran enterprise justice marshall joined justice stewart went even concluding although view congress clearly purported subject suits individuals federal courts lacked constitutional authority opinion concurring result next year observed dictum place doctrine constructive waiver jurisprudence emphasized find waiver stated express language overwhelming implications text leave room reasonable construction edelman jordan internal quotation marks omitted several terms later welch texas dept highways public transp although expressly avoided addressing constitutionality congress conditioning state engaging activity upon state waiver sovereign immunity said doubt parden discussion congressional intent negate eleventh amendment immunity longer good law overruled parden extent inconsistent requirement abrogation eleventh amendment immunity congress must expressed unmistakably clear language college savings concede surely must intervening decisions seriously limited holding parden maintain however employees welch distinguishable core principle parden remains good law parden waiver immunity say still possible employees welch long following two conditions satisfied first congress must provide unambiguously state subject suit engages certain specified conduct governed federal regulation second state must voluntarily elect engage federally regulated conduct subjects suit latter regard argument goes state never deemed constructively waived sovereign immunity engaging activities realistically choose abandon operation police force constructive waiver appropriate state runs enterprise profit operates field traditionally occupied private persons corporations engages activities sufficiently removed core state functions reply brief otherwise acts market participant interstate commerce cf white massachusetts council constr employers theory florida prepaid constructively waived immunity suit engaging voluntary nonessential activity selling advertising educational investment vehicle interstate commerce put notice clear language trca subject lanham act liability think experiment parden ill conceived see merit attempting salvage remnant explain detail parden broke sharply prior cases fundamentally incompatible later ones never applied holding parden another statute fact narrowed case every subsequent opinion consideration short parden stands anomaly jurisprudence sovereign immunity indeed jurisprudence constitutional law today drop shoe whatever may remain decision parden expressly overruled begin square parden cases requiring state express waiver sovereign immunity unequivocal see great northern life ins read whole point requiring clear declaration state waiver certain state fact consents suit little reason assume actual consent based upon state mere presence field subject congressional regulation fundamental difference state expressing unequivocally waives immunity congress expressing unequivocally intention state takes certain action shall deemed waived immunity latter situation said certainty state put notice congress intends subject suits brought individuals far concluding state made altogether voluntary decision waive immunity beers indeed parden waivers simply unheard context constitutionally protected privileges said edelman onstructive consent doctrine commonly associated surrender constitutional rights example imagine congress amended securities laws provide unmistakable clarity anyone committing fraud connection buying selling securities interstate commerce entitled jury federal criminal prosecution fraud persons engaging securities fraud adoption amendment deemed constructively waived constitutionally protected rights trial jury criminal cases trading securities vital activity one person decision trade regarded voluntary choice answer course classic description effective waiver constitutional right intentional relinquishment abandonment known right privilege johnson zerbst ourts indulge every reasonable presumption waiver fundamental constitutional rights aetna ins kennedy ex rel bogash see also ohio bell telephone public util ohio presume acquiescence loss fundamental rights state sovereign immunity less right trial jury criminal cases constitutionally protected great northern pennhurst context federal sovereign immunity obviously closest analogy present case well established waivers implied see king describing settled propositio waiver sovereign immunity implied must unequivocally expressed see reason rule different respect state sovereign immunity given anomalous speak constructive waiver constitutionally protected privilege surprising cornerstone parden opinion notion state sovereign immunity constitutionally grounded parden discussion waiver began observation empowering congress regulate commerce necessarily surrendered portion sovereignty stand way regulation since imposition fela right action upon interstate railroads within congressional regulatory power must follow application act railroad precluded sovereign immunity see also id recent decision seminole tribe expressly repudiates proposition formally overruling parden make explicit case implied recognizing congressional power exact constructive waivers sovereign immunity exercise article powers also practical matter permit congress circumvent antiabrogation holding seminole tribe forced waiver abrogation even different sides coin side coin congressional creations private rights action attach recovery defendant commission act possession status field congress authority regulate conduct thus federal prescriptions insofar prospective application concerned sense conditional extent objects prescriptions consciously engage activity hold status produces liability redescribed invitations waiver pennsylvania union gas scalia dissenting see also fitzpatrick referring congressional intent abrogate state sovereign immunity necessary predicate parden waiver little verbal distinction saying congress make florida liable private parties false misleading advertising interstate commerce prepaid tuition program saying thing adding end florida chooses engage advertising evidence constructive waiver little abrogation another name consider revealing facts case statutory provision relied upon demonstrate florida constructively waived sovereign immunity provision purported abrogate think constitutionally grounded principle state sovereign immunity less robust asserted basis constructive waiver conduct state realistically choose abandon undertaken profit traditionally performed private citizens corporations otherwise resembles behavior market participants permitting abrogation constructive waiver constitutional right conditions exist course limit evil hard say limitation support text tradition say limiting abrogation constructive waiver last friday month since sovereign immunity traditionally limited factors since bearing upon voluntariness waiver principled reason enter waiver analysis held seminole tribe sovereign immunity barred action brought indian gaming regulatory act state florida alleged failure negotiate gambling compact seminole tribe indians pause consider whether florida decision negotiate somehow involuntary pause consider whether running tugboat towing service fair reasonable rates traditionally performed private citizens corporations otherwise resembled behavior market participants held ex parte new york sovereign immunity foreclosed admiralty action state new york damages caused state engaging activity hans involved action louisiana recover coupons bond issuance surely rendered louisiana participant financial markets market participant cases jurisprudence relied upon inapposite see white massachusetts council constr employers reeves stake hughes alexandria scrap cases hold state acts participant private market may prefer goods services citizens even though acting market regulator since state proprietary activities may often burdened restrictions imposed private market participants venhandedness suggests acting proprietors similarly share existing freedoms federal constraints including inherent limits dormant commerce clause white supra market participant exception judicially created restrictions makes sense evil addressed restrictions prospect use custom duties exclusionary trade regulations exercises governmental power opposed expenditure state resources favor citizens see hughes supra entirely absent buying selling market contrast suit individual unconsenting state evil eleventh amendment directed exists whether state acting profit traditionally private enterprise market ticipant context moreover venhandness individuals expected constitutional role sets apart employers defendants welch cf atascadero points two contexts asserts permitted congress exercise article powers extract constructive waivers state sovereign immunity petty bridge held bistate commission created pursuant interstate compact assumed partook state sovereign immunity consented suit reason suability provision attached congressional approval compact held cases south dakota dole congress may exercise spending power condition grant funds upon taking certain actions congress require take acceptance funds entails agreement actions cases seem us fundamentally different present one compact clause art cl form interstate compact without first obtaining express consent congress granting consent gratuity also congress obligation use spending clause power disburse funds funds gifts present case however congress threatens state refuses agree condition denial gift gratuity sanction exclusion state otherwise permissible activity justice breyer dissent acknowledges intuitive difference two asserts disappears gift threatened withheld substantial enough post perhaps cases involving conditions attached federal funding acknowledged financial inducement offered congress might coercive pass point pressure turns compulsion dole supra quoting steward machine davis event think constitutionally guaranteed protection sovereign immunity involved point coercion automatically passed voluntariness waiver destroyed attached refusal waive exclusion state otherwise lawful activity principal thrust justice breyer dissent attack upon legitimacy state sovereign immunity regard justice breyer dissenters proclaim yet ready post emphasis added adhere precedent seminole tribe decision hans supports accordingly justice breyer reiterates outline form thankfully revisionist accounts eleventh amendment set forth opinions degree repetitive detail despoiled northern woods compare post atascadero supra brennan dissenting welch supra brennan dissenting seminole tribe stevens dissenting id souter dissenting see alden maine post souter dissenting arguments recited sources soundly refuted position marshaled rejected constitutional tradition precedent clear conclusive almost venerable consigns debate whether marbury madison wrongly decided forums see union gas scalia dissenting seminole tribe alden post score think nothing need said except two minor observations peculiar case first justice breyer dissenters adopted decidedly perverse theory stare decisis finding entirely unconstrained venerable precedent hans imbedded within legal system century see welch supra union gas supra scalia dissenting time cling desperately anomalous severely undermined decision parden surely approach stare decisis exactly backwards unless course one wishes use weapon rather guide case old approach second stress following observation bearing upon resolution case find puzzling justice breyer choose occasion criticize jurisprudence ungrounded constitutional text since present lawsuit allow go forward apparently commenced state florida citizen another state college savings bank new jersey seems fall four square within literal text eleventh amendment judicial power shall construed extend suit law equity commenced prosecuted one citizens another state const amdt emphasis added see seminole tribe supra stevens dissenting diffuse treatment subject federalism contained last portion justice breyer opinion alarming learn many members subscribe theory federalism rejects details particular federalist doctrine says change reflect nation changing needs puts forward unchanging goal federalism worth mentioning protection liberty believes directly achieved promoting sharing among citizens governmental authority turn demands finally come point necessary legislative flexibility people representatives congress post proposition protection liberty directly achieved promoting sharing among citizens governmental authority might well dropped lips robespierre surely madison jefferson hamilton whose north star governmental power even indeed especially governmental power wielded people dispersed countered say degree dispersal hence degree check governed congress need legislative flexibility deny federalism utterly justice breyer opinion comes close admitting example federalism constraint bear acknowledge appropriate judicial recognition invalidation state law things given passion text characterizes parts opinion dormant commerce clause post legislative flexibility part congress touchstone federalism capacity support combustion becomes acid test fire extinguisher congressional flexibility desirable course within bounds federal power established constitution beyond bounds theory constitution goes menace opinion today sought discern bounds dissent denies permanent place finally must comment upon justice breyer comparison decision today discredited case lochner new york resembles lochner course respect rejects novel assertion governmental power legislature believed justified alone enough qualify lochner list lochners endless judgments invalidating state federal laws fit description always thought distinctive feature lochner nicely captured justice holmes dissenting remark herbert spencer social statics id sought impose particular economic philosophy upon constitution think feature aptly characterizes opinion justice breyer dissent believes enjoy normal constitutional protections sovereign immunity step proper economic role engage sure herbert spencer shocked ordinary commercial ventures post ever happened need legislative flexibility concluding foregoing reasons sovereign immunity state florida neither validly abrogated tradmark remedy clarification act voluntarily waived state activities interstate commerce hold federal courts without jurisdiction entertain suit arm state florida judgment third circuit dismissing action affirmed ordered college savings bank petitioner florida prepaid postsecondary education expense board et al writ certiorari appeals third circuit june justice stevens dissenting case argued decided basis assumptions may entirely correct accepting arguendo judgment appeals reversed reasons set forth justice breyer dissent joined believe importance case two rights cases decided today merits additional comment procedural posture case requires assume florida prepaid arm state florida activities relate state educational programs ante validity assumption doubtful jurisprudence area based primarily assumptions status doctrine sovereign immunity century sovereigns play kind role commercial marketplace today future cases may therefore appropriate limit coverage state sovereign immunity treating commercial enterprises like commercial activities foreign sovereigns foreign sovereign immunities act majority also assumes petitioner complaint alleged violation lanham act one sufficiently serious amount deprivation property ante think neither assumptions relevant principal issue raised case namely whether congress constitutional power authorize suits state instrumentalities violation judgment constitution granted ample power section fourteenth amendment authorizes congress enact appropriate legislation prevent deprivations property without due process unlike majority persuaded trademark remedy clarification act valid exercise power even florida prepaid allegedly false advertising case violate constitution conclusion rests two premises rejects first opinion activity business activity making profit ante form property asset often appears company balance sheet good substantial equivalent activity kind property congress described sherman act stat clayton act stat state deliberate destruction going business surely deprivation property within meaning due process clause second validity congressional decision abrogate sovereign immunity category cases depend strength claim asserted particular case within category instead decision depends whether congress reasonable basis concluding abrogation necessary prevent violations otherwise occur given presumption validity supports federal statutes believe must shoulder burden demonstrating judgment congress command respect done reasons well expressed justice breyer respectfully dissent college savings bank petitioner florida prepaid postsecondary education expense board et al writ certiorari appeals third circuit june justice breyer justice stevens justice souter justice ginsburg join dissenting holds congress exercise commerce power require state waive immunity suit federal even state engages activity might readily withdraw federally regulated commercial activity previously held contrary parden terminal docks dept abandon precedent years ago unanimously subscribed holding today overrules justice white writing four members dissented different issue succinctly described holding follows within power congress condition state permit engage interstate transportation business waiver state sovereign immunity suits arising business congress might well determine allowing regulable conduct operation railroad undertaken body legally immune liability directly resulting operations inimical purposes regulation state must put option either foregoing participation conduct consenting legal responsibility injury caused thereby id opinion white joined douglas harlan stewart majority seeking justify overruling clear precedent describes parden holding constitutional anomaly broke sharply prior cases fundamentally incompatible later ones narrowed every subsequent opinion ante parden none things far anomalous parden holding finds support reason precedent state engages ordinary commercial ventures acts like private person outside area core responsibilities way unlikely prove essential fulfillment basic governmental obligation congress decides regulate state commercial activities rather exempt state likely believes exemption treating state differently identically situated private persons threaten objectives federal regulatory program aimed primarily private conduct compare supp iii exempting state companies regulations covering federal bank holding companies exempting securities federal securities laws exempting definition employer subject federal occupational safety health laws subjecting federal bankruptcy judgments subjecting suit violation lanham act subjecting suit copyright infringement subjecting suit patent infringement congress includes state within substantive regulatory rules also expressly within related system private remedies likely believes remedial exemption similarly threaten program see florida prepaid postsecondary ed expense bd college savings bank ante stevens dissenting thereby avoids enforcement gap allied pressures competitive marketplace place state regulated private competitors significant disadvantage considerations make congress need possess power condition entry market upon waiver sovereign immunity necessary proper exercise commerce power unusually strong deny congress power deny congress power effectively regulate private conduct cf california taylor time make state need exercise sovereign immunity unusually weak state unlikely supply private firms already supply may fairly demand special treatment even protect public purse neither one easily imagine constitution founders thought assertion sovereign immunity special context considerations differing kind degree support general congressional abrogation power indicate parden holding sound irrespective decisions seminole tribe florida alden maine ante neither parden break sharply prior cases parden cited authority found related waivers least roughly comparable circumstances california example held state engaging interstate commerce rail subjected commerce power id amounted waiver different though related substantive immunity see also taylor supra parden also relied authority holding seeking necessary congressional approval interstate compact venturing federal realm assume waiver sovereign immunity conditions attached quoting petty bridge earlier case law found waiver sovereign immunity state decision bring creditor claim bankruptcy see gardner new jersey later case law suggesting waiver may found state acceptance federal grant see atascadero state hospital scanlon supports parden conclusion sharp break majority one answer question believes case law requires waiver express unequivocal ante cases referred show majority tries explain cases away statement attached refusal waive cases forgoing federal beneficence involved exclusion state otherwise lawful activity ante statement explain away difference simply difference demands explanation statement appeal intuition namely somehow easier state hence voluntary forgo federal beneficence refrain otherwise lawful activity somehow compelling oppressive congress forbid state perform otherwise lawful act withhold beneficence force intuition depends upon example one chooses illustration realistic examples suggest intuition sound present context given amount money stake may harder easier state refuse highway funds refrain entering investment services business see dept commerce bureau census federal aid fiscal year apr federal government provided billion highways compelling oppressive congress threaten withhold state funds needed educate children threaten subject suit competes directly private investment company see id federal government provided billion education distinction majority seeks make drawn terms gifts entitlements exist majority also wrong say narrowed parden subsequent opinion ante least way relevant today decision parden considered two separate issues congress power require state waive immunity clearly must congress speak narrowed parden respect second issue first today concerned first employees dept public health welfare mo department public health welfare example discussed whether congress lift ed sovereign immunity whether done id congress lift sovereign immunity emphasis added employees limitation parden area private persons corporations normally ran enterprise took place context clarity power specifying congress act outside limited area emphasis added although two justices limited parden holding respect power limitation simply required congress give advance notice consequence loss sovereign immunity noted happened parden marshall concurring result remaining cases majority mentions offer greater support one said assume without deciding intimating view question authority congress subject unconsenting suit federal confined fourteenth amendment welch texas dept highways public two others also considered legislative clarity power atascadero state hospital supra rehabilitation act falls far short clearly indicating waiver state accepting funds act edelman jordan social security act even seminole tribe carefully avoided calling parden question specifying congress exercise article powers abrogate unilaterally immunity suit left open scope term unilaterally referring parden without criticism standing unremarkable completely unrelated proposition may waive sovereign immunity short except today majority member ever questioned holding parden today discards find merit attempting salvage remnant ante parden never questioned seminole tribe still makes sense line today rejects drawn place outside ordinary dormant commerce clause rules act market participants white massachusetts council constr employers reeves stake hughes alexandria scrap congress drawn line related context foreign state sovereign immunity congress followed modern trend spread rapidly second world war regarding foreign state sovereign immunity restatement third foreign relations law ch introductory note recognizing immunity gave unfair advantage competition private commercial enterprise see also report international law commission work session art nations doc state engages commercial contract foreign person state considered consented exercise foreign jurisdiction proceeding arising contract indeed given widely accepted view among modern nations state engages ordinary commercial activity sovereign immunity significant role play today holding parden creates legal anomaly ii resist strongly extension seminole tribe case although accept seminole tribe sovereign immunity decisions yet ready adhere proposition law set forth seminole tribe cf eeoc wyoming stevens concurring view congress possess authority abrogate state sovereign immunity necessary proper exercise article power reasons include justices stevens souter already described detail neither constitutional text surrounding debates support seminole tribe view congress lacks article power abrogate state sovereign immunity federal question cases unlike diversity cases seminole tribe nn stevens dissenting id souter dissenting compare majority characterization argument ante precedents offer important legal support doctrine sovereign immunity help seminole tribe majority focus upon critically different question namely whether courts acting without legislative support abrogate state sovereign immunity whether congress acting legislatively see principality monaco mississippi hans louisiana chisholm georgia dall iredell dissenting seminole tribe supra souter dissenting federal legislation purporting pierce state immunity issue fairly said hans held state sovereign immunity attained constitutional status immunizing abrogation sovereign immunity doctrine new american nation received doctrines selectively accepting abandoning others frequently modifying accepted light new nation special needs circumstances seminole tribe supra souter dissenting new nation federalist lodestar dual sovereignty state nation demanded modification traditional immunity doctrine thereby permitting congress narrow abolish state sovereign immunity necessary dual sovereignty undercuts doctrine traditional logical practical justification namely words justice holmes legal right authority makes law right depends kawananakoa polyblank state sued violating federal law authority assert immunity state authority made federal law point remains true even treats sovereign immunity principle natural law alden maine ante souter dissenting dual sovereignty granting congress power create substantive rights bind despite sovereignty must grant congress subsidiary power create related private remedies bind despite sovereignty dual sovereignty means congress may need lesser power lest subject federal remedies ignore substantive federal law binds thereby disabling national government weakening union constitution creates cf mcculloch maryland wheat cohens virginia wheat interpreting constitution rendering immutable one doctrine sovereign immunity seminole tribe threatens nation ability enact economic legislation needed future much way lochner new york threatened nation ability enact social legislation years ago shall elaborate upon point similarity lochner lies risk seminole tribe subsequent cases deprive congress necessary legislative flexibility rules make difficult congress create example decentralized system individual private remedies say private remedial system needed protect intellectual property including educational materials irrespective need importance system century advanced economy cf florida prepaid postsecondary ed expense bd college savings bank ante stevens dissenting illustrating harm rules work patent system similarly rules inhibit creation innovative legal regimes say decentralized regulatory systems deliberately take account local differences assigning roles powers responsibility federal administrators citizens least regime must incorporate private remedy state state water polluter work effectively yet ironically congress needs kind flexibility achieve one federalism basic objectives basic objective confused details particular federalist doctrine contours federalist doctrine changed course nation history thomas jefferson purchase louisiana example reshaped great debate need broad rather literal interpretation federal powers civil war effectively ended claim state right nullify federal law second new deal ultimate judicial ratification showed federal state legislative authority mutually exclusive civil rights decisions clarified protection state infringement fourteenth amendment offers basic human liberty instance content specific federalist doctrines change reflect nation changing needs territorial expansion end slavery great depression desegregation changing doctrines reflect least one unchanging goal protection liberty federalism helps protect liberty simply modern sense helping individual remain free restraints imposed distant government directly promoting sharing among citizens governmental decisionmaking authority see constant political writings fontana transl describing liberty ancients compared moderns ancient world understood need divide sovereign power among nation citizens thereby creating government exercise power called free citizens exercised power divided nation founders understood wrote constitution divided governmental authority retained great power state local levels foresaw indeed assumed democratic citizen participation government levels including levels facilitated citizen participation closer citizen home today world legislative flexibility necessary protect kind liberty modern commerce technology upon rests needs large markets seeks government large enough secure trading rules permit industry compete global market place prevent pollution crosses borders assure adequate protection health safety discouraging regulatory race bottom yet local control local decisions remains necessary uniform regulatory decisions example chemical waste disposal pesticides food labeling directly affect daily life every locality may reflect differing views among localities relative importance wage levels environmental preferences underlie local control take account concerns help maintain sense community despite global forces threaten federalism matters ordinary citizens seeking maintain degree control sense community increasingly interrelated complex world courts remain sensitive needs interpret statutes apply constitutional provisions example dormant commerce clause courts easily draw proper basic lines authority proper balance often highly context specific judicial rules allocate power often far broad legislatures however write laws specifically embody balance specific regulatory schemes example draw lines leave certain local authority untouched involve local communities citizens directly grant funds powers rights privileges depending upon context congress may encourage require interaction among citizens working various levels government modern substantive federalist problem demands flexible legislative response help constitutionalize ahistoric view sovereign immunity freezing remedial limitations tends place state beyond reach law recognize possibility congress may achieve objectives ways ex parte young still available though effective damages remedies important congress might create federal enforcement bureaucracy charged responsibilities congress prefer place hands private citizens alden maine ante printz breyer dissenting perhaps congress able achieve results seeks including decentralization embodying necessary state waivers federal funding programs case decisions simply impose upon congress burden rewriting legislation apparent reason none alternatives satisfactory unfortunately seminole tribe today related decisions separate one formal strand federalist skein strand understood since time cicero elevate strand level immutable constitutional principle akin thought james james madison role sovereign immunity played helping assure political independence remain even joining union longer holds center stage see nevada hall federal ability enforce judgment state longer major concern see federalist rossiter ed hamilton without adequate legal support grounded either history practical need contrary making doctrine immune congressional article modification makes difficult congress decentralize governmental decisionmaking provide individual citizens local communities variety enforcement powers diminishing congressional flexibility makes somewhat difficult satisfy modern federalism important needs sense counterproductive iii know whether state engaged false advertising unfair competition college savings bank alleges case dismissed threshhold congress clearly said college savings bank may bring lanham act suit circumstances reasons set forth opinion believe congress constitutional power provide therefore reverse judgment appeals footnotes see hardin tragedy commons science response string cases criticizing narrowing holding parden justice breyer holds three parden cases decisions support ed parden post least carefully avoided calling question post perception support atascadero state hospital scanlon rests upon nothing substantial fact case suggest ed waiver may found state acceptance federal grant post make suggestion today utterly rejecting parden explain elsewhere detail see infra conditions attached state receipt federal funds simply analogous parden conditions attached state decision engage otherwise lawful commercial activity justice breyer second case welch overruled parden part discuss think quite impossible believe following statement opinion questio holding parden today discards post assume without deciding intimating view question authority congress subject unconsenting suit federal confined fourteenth amendment calling prior case flatly decided question need deciding lest doubt point making clear intimat view whether answer given prior case correct surely handwriting wall even inept cryptologist recognize spelling caption today opinion seminole tribe explain elsewhere see infra case logically practically inconsistent parden even though expressly overrule justice breyer realizes well enough else call overruling case occupies almost half dissent see post supremely irrelevant matter us attempt cast doubt characterization parden groundbreaking case justice breyer points three earlier decisions allegedly demonstrate parden worked major change cases however tenuous relation parden actual holding one might suspect dissent description roughly comparable involving quotation marks waivers post first two california california taylor involved neither state immunity suit waiver entirely different question whether substantive provisions commerce clause legislation applied former concerned suit brought state situation state sovereign immunity exist see texas latter expressly acknowledged eleventh amendment us last case gardner new jersey held bankruptcy entertain trustee objections claim filed state stands unremarkable proposition state waives sovereign immunity voluntarily invoking jurisdiction federal courts see supra sum none cases laid foundation parden whose author quite correct acknowledging presented question first impression employees dept public health welfare mo department public health welfare mo brennan dissenting suggestion justice breyer limit state sovereign immunity state activities congress limited foreign sovereign immunity accord modern trend see post citing foreign sovereign immunities act fsia see also justice stevens dissent post proposal ignores fact state sovereign immunity unlike foreign sovereign immunity constitutional doctrine meant immutable congress resistant trends text eleventh amendment course makes distinction commercial state activities combine dissent literalistic interpretation amendment affection fsia commercial activities exception suits except commenced federal citizens another state disposition hardly makes sense post breyer dissenting justice breyer purports accept seminole tribe sovereign immunity decisions post mean hans rather distorted view hans prevailed briefly parden seminole tribe parden first case suggest sovereign immunity announced hans fragile flower abrogated article suggestion contrary reality hans involved congressional conferral jurisdiction enacted article see union gas scalia dissenting moreover conferral jurisdiction combined hans substantive claim contracts clause constitution one think greater rather lesser abrogative force substantive statute enacted pursuant commerce clause dissent apparently interpose statute hans expressly purpor pierce state immunity post quoting seminole tribe souter dissenting opinion hans allude refinement parden think made difference clear statement rule even adumbrated nine years parden employees supra difficult square dissent reliance upon distinction present case involves federal question therefore explicitly covered eleventh amendment see post professed fidelity hans whole point sovereign immunity reflected rather created eleventh amendment transcends narrow text amendment put differently seminole tribe sovereign immunity decisions dissent pledges allegiance appear include chisholm georgia see const amdt footnotes see commercial activity exception foreign sovereign immunity statute provides following definition commercial activity either regular course commercial conduct particular commercial transaction act commercial character activity shall determined reference nature course conduct particular transaction act rather reference purpose held pennsylvania union gas commerce clause granted congress power abrogate defense sovereign immunity remain convinced case correctly decided reasons stated principal concurring opinions