# Pennsylvania v. Union Gas Company/Concurrence Scalia

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinions Stevens Scalia White
Justice SCALIA, with whom THE CHIEF JUSTICE, Justice O'CONNOR, and Justice KENNEDY, join as to Parts II, III, and IV, concurring in part and dissenting in part.
* I join Part II of Justice BRENNAN's opinion holding that the text of the Comprehensive Environmental Response, Compensation, and Liability Act of 19 0 (CERCLA), 42 U.S.C. § 9601 et seq., as amended by the Superfund Amendments and Reauthorization Act of 1986 (SARA), Pub.L. 99-499, 100 Stat. 1613, clearly renders States liable for money damages in private suits. Justice WHITE's contention that there is no clear statement is given plausibility only by his methodology of considering CERCLA and SARA separately, finding that first the one and then the other does not necessarily import monetary liability to private individuals-CERCLA because, as we held in Employees v. Missouri Dept. of Public Health and Welfare, 411 U.S. 279, 93 S.Ct. 1614, 36 L.Ed.2d 251 (1973), the inclusion of States within defined terms is not alone enough to evince clear intent to abrogate Eleventh Amendment immunity, ante, at 48-49 (opinion, concurring in judgment in part and dissenting in part); and SARA because there the unquestionable reference to liability coextensive with the liability of private persons was set forth in a section dealing with limitation of liability, thus not assuring the intent of the Congress which enacted that provision to extend liability to the States, post, at 51-52.
That methodology is appropriate, and Justice WHITE's conclusion is perhaps correct, if one assumes that the task of a court of law is to plumb the intent of the particular Congress that enacted a particular provision. That methodology is not mine nor, I think, the one that courts have traditionally followed. It is our task, as I see it, not to enter the minds of the Members of Congress-who need have nothing in mind in order for their votes to be both lawful and effective-but rather to give fair and reasonable meaning to the text of the United States Code, adopted by various Congresses at various times. See United States v. Fausto, 484 U.S. 439, 454-455, 108 S.Ct. 668, 677, 98 L.Ed.2d 830 (1988). CERCLA, as amended by SARA, clearly holds the States liable for damages in private suits. The inclusion of States, apparently for all purposes, within the definition of "person," reinforced by the language of the limitation that assumes state liability equivalent to the liability of private individuals, leaves no fair doubt that States are liable to private persons for money damages. Whether it was the CERCLA Congress that envisioned this, or the SARA Congress, is to me irrelevant. The law does.
Finding that the statute renders the States liable in private suits for money damages, I must consider the continuing validity of Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890), which held that the Eleventh Amendment precludes individuals from bringing damages suits against States in federal court even where the asserted basis of jurisdiction is not diversity of citizenship but the existence of a federal question.
Eight Members of the Court addressed the question whether to overrule Hans only two Terms ago-but inconclusively, since they were evenly divided. See Welch v. Texas Dept. of Highways and Public Transportation, 483 U.S. 468, 107 S.Ct. 2941, 97 L.Ed.2d 389 (1987). Since the substantive issue was addressed so extensively by the plurality opinion announcing the judgment of the Court in that case (which I will refer to as the "plurality opinion"), and by the dissent, I will only sketch its outlines here.
"The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State."
If this text were intended as a comprehensive description of state sovereign immunity in federal courts-that is, if there were no state sovereign immunity beyond its precise terms-then it would unquestionably be most reasonable to interpret it as providing immunity only when the sole basis of federal jurisdiction is the diversity of citizenship that it describes (which of course tracks some of t e diversity jurisdictional grants in U.S.C.onst., Art. III, § 2). For there is no plausible reason why one would wish to protect a State from being sued in federal court for violation of federal law (a suit falling within the jurisdictional grant over cases "arising under . . . the Laws of the United States") when the plaintiff is a citizen of another State or country, but to permit a State to be sued there when the plaintiff is citizen of the State itself. Thus, unless some other constitutional principle beyond the immediate text of the Eleventh Amendment confers immunity in the latter situation-that is to say, unless the text of the Eleventh Amendment is not comprehensive-even if the parties to a suit fell within its precise terms (for example, a State and the citizen of another State) sovereign immunity would not exist so long as one of the other, nondiversity grounds of jurisdiction existed.
About a century ago, in the landmark case of Hans v. Louisiana, the Court unanimously rejected this "comprehensive" approach to the Amendment, finding sovereign immunity where not only a nondiversity basis of jurisdiction was present, but even where the parties did not fit the description of the Eleventh Amendment, the plaintiff being a citizen not of another State or country, but of Louisiana itself. What we said in Hans was, essentially, that the Eleventh Amendment was important not merely for what it said but for what it reflected: a consensus that the doctrine of sovereign immunity, for States as well as for the Federal Government, was part of the understood background against which the Constitution was adopted, and which its jurisdictional provisions did not mean to sweep away. "[T]he cognizance of suits and actions [against unconsenting States] was not contemplated by the Constitution when establishing the judicial power of the United States." 134 U.S., at 15, 10 S.Ct., at 507. We noted that the decision of this Court that prompted the Eleventh Amendment, Chisholm v. Georgia, 2 Dall. 419, 1 L.Ed. 440 (1793), permitting a South Carolina citizen to bring an assumpsit action for damages against the State of Georgia in federal court, had "created . . . a shock of surprise throughout the country," 134 U.S., at 11, 10 S.Ct., at 505; and we concluded that the Amendment which by its precise terms repudiated that decision reflected as well a repudiation of the premise upon which that decision was based, namely, that Article III's jurisdictional grants over the States are unlimited by the doctrine of sovereign immunity. "The letter [of Article III and the Eleventh Amendment] is appealed to now," we said, "as [the letter of Article III] was then, as a ground for sustaining a suit brought by an individual against a State." Id., at 15, 10 S.Ct., at 507. We rejected that appeal. The rationale of Hans and of the many cases that have followed it was concisely expressed, again for a unanimous Court, by Chief Justice Hughes in a case which held that, despite Article III's express grant of jurisdiction over suits "between a State . . . and foreign States," and despite the absence of express grant of sovereign immunity in the Eleventh Amendment, a State could not be sued by a foreign State in federal court:
"Manifestly, we cannot rest with a mere literal application of the words of § 2 of Article III, or assume that the letter of the Eleventh Amendment exhausts the restrictions upon suits against non-consenting States. Behind the words of the constitutional provisions are postulates which limit and control. There is the essential postulate that the controversies, as contemplated, shall be found to be of a justiciable character. There is also the postulate that States of the Union, still possessing attributes of sovereignty, shall be immune from suits, without their consent, save where there has been 'a surrender of this immunity in the plan of the convention.' The Federalist, No. 81." Monaco v. Mississippi, 292 U.S. 313, 32 -323, 54 S.Ct. 745, 747-48, 78 L.Ed. 1282 (1934) (footnote omitted).
The evidence is strong that the jurisdictional grants in Article III of the Constitution did not automatically eliminate underlying state sovereign immunity, and even stronger that that assumption was implicit in the Eleventh Amendment. What is subject to greater dispute, however, is how much sovereign immunity was implicitly eliminated by what Hamilton called the "plan of the convention." We have already held that "inherent in the constitutional plan," Monaco v. Mississippi, supra, at 329, 54 S.Ct., at 750, are a waiver of immunity against suits by the United States itself, see United States v. Mississippi, 380 U.S. 128, 140-141, 85 S.Ct. 808, 814-15, 13 L.Ed.2d 717 (1965); United States v. Texas, 143 U.S. 621, 641-646, 12 S.Ct. 488, 492-94, 36 L.Ed. 285 (1892), and a waiver of immunity against suits by other States, see South Dakota v. North Carolina, 192 U.S. 286, 24 S.Ct. 269, 48 L.Ed. 448 (1904). The foremost argument urged in favor of overruling Hans is that a waiver of immunity against suits presenting federal questions is also implicit in the constitutional scheme. On this single point I add a few words to what was so recently said in Welch.
The inherent necessity of a tribunal for peaceful resolution of disputes between the Union and the individual States, and between the individual States themselves, is incomparably greater, in my view, than the need for a tribunal to resolve disputes on federal questions between individuals and the States. Undoubtedly the Constitution envisions the necessary judicial means to assure compliance with the Constitution and laws. But since the Constitution does not deem this to require that private individuals be able to bring claims against the Federal Government for violation of the Constitution or laws, see United States v. Testan, 424 U.S. 392, 399-402, 96 S.Ct. 948, 953-54, 47 L.Ed.2d 114 (1976); U.S.C.onst., Art. I, § 9, cl. 7 ("No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law"), it is difficult to see why it must be interpreted to require that private individuals be able to bring such claims against the States. If private initiation of suit against the offending sovereign as such is essential to preservation of the structure, it is difficult to see why it would not be essential at both levels. Indeed if anything it would seem more important at the federal level, since suits against the States for violation of the Constitution or laws can at least be brought by the Federal Government itself, see United States v. Mississippi, supra, 380 U.S., at 140-141, 85 S.Ct., at 814-15. In providing federal immunity from private suit, therefore, the Constitution strongly suggests that state immunity exists as well. Of course federal law can give, and has given, the private suitor many means short of actions against the State to assure compliance with federal law. He may obtain a federal injunction against the state officer, which will effectively stop the unlawful action, see Ex parte Young, 209 U.S. 123, 160, 28 S.Ct. 441, 454, 52 L.Ed. 714 (1908), and may obtain money damages against state officers, and even local governments, under 42 U.S.C. § 1983; see Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). I think it impossible to find in the scheme of the Constitution a necessity that private remedies be expanded beyond this, to include a remedy not available, for a similar infraction, against the United States itself.
Even if I were wrong, however, about the original meaning of the Constitution, or the assumption adopted by the Eleventh Amendment, or the structural necessity for federal-question suits against the States, it cannot possibly be denied that the question is at least close. In that situation, the mere venerability of an answer consistently adhered to for almost a century, and the difficulty of chan ing, or even clearly identifying, the intervening law that has been based on that answer, strongly argue against a change. As noted by the Welch plurality, "Hans has been reaffirmed in case after case, often unanimously and by exceptionally strong Courts"; its reversal "would overrule at least 17 cases, in addition to Hans itself" and cast doubt on "a variety of other cases that were concerned with this Court's traditional treatment of sovereign immunity." 483 U.S., at 494, n. 27, 107 S.Ct., at 2957, n. 27. Moreover, unlike the vast majority of judicial decisions, Hans has had a pervasive effect upon statutory law, automatically assuring that private damages actions created by federal law do not extend against the States. Forty-nine Congresses since Hans have legislated under that assurance. It is impossible to say how many extant statutes would have included an explicit preclusion of suits against States if it had not been thought that such suits were automatically barred. Indeed, it is not even possible to say that, without Hans, all constitutional amendments would have taken the form they did. The Seventeenth Amendment, eliminating the election of Senators by state legislatures, was ratified in 1913, 23 years after Hans. If it had been known at that time that the Federal Government could confer upon private individuals federal causes of action reaching state treasuries; and if the state legislatures had had the experience of urging the Senators they chose to protect them against the proposed creation of such liability; it is not inconceivable, especially at a time when voluntary state waiver of sovereign immunity was rare, that the Amendment (which had to be ratified by three-quarters of the same state legislatures) would have contained a proviso protecting against such incursions upon state sovereignty.
I would therefore decline respondent's invitation to overrule Hans v. Louisiana.
Justice BRENNAN's plurality opinion purports to assume the validity of Hans, and yet reaches the result that CERCLA's imposition of monetary liability is constitutional because Congress has the power to abrogate state sovereign immunity in the exercise of its Commerce Clause power. Justice WHITE, who not merely assumes the validity of Hans but actually believes in it, agrees with that disposition. Better to overrule Hans, I should think, than to perpetuate the complexities that it creates, see Atascadero State Hospital v. Scanlon, 473 U.S. 234, 252-258, 105 S.Ct. 3142, 3152-55, 87 L.Ed.2d 171 (1985) (BRENNAN, J., dissenting), but eliminate all its benefits to the federal system. If Hans means only that federal-question suits for money damages against the States cannot be brought in federal court unless Congress clearly says so, it means nothing at all. We do not need Hans for the "clear statement" rule-just as we do not need to rely on any constitutional prohibition of suits against the Federal Government to require a similar rule for elimination of the sovereign immunity of the United States. See United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 1351, 63 L.Ed.2d 607 (1980); United States v. Testan, 424 U.S., at 399, 96 S.Ct., at 953-54. As far as I can discern, the course the Court today pursues preserving Hans but permitting Congress to overrule it-achieves the worst of both worlds. And it is a course no more justified by text than by consequences.
To begin with, Hans did not merely hold that Article III failed to eliminate state sovereign immunity of its own force, without any congressional action to that end. In Hans, as here, there was a congressional statute that could be pointed to as eliminating state sovereign immunity-namely, the Judiciary Act of 1875, ch. 137, § 1, 18 Stat. 470, which gave United States courts jurisdiction over cases involving federal questions. (The Hans Court was unquestionably aware of that refinement, because it was the st tutory ground of interpretation of the Judiciary Act of 1789, ch. 20, § 13, 1 Stat. 80, rather than the constitutional ground, that Justice Iredell had relied upon in his dissent in Chisholm, which the Hans Court discussed at some length.) Thus, the distinction that the Court must rely upon is not one between cases in which Congress has assertedly sought to eliminate state sovereign immunity and cases in which in no such assertion is available; but rather the much more gossamer distinction between cases in which Congress has assertedly sought to eliminate state sovereign immunity pursuant to its powers to create and organize courts, and cases in which it has assertedly sought to do so pursuant to some of its other powers.
I think it plain that the position adopted by the Court contradicts the rationale of Hans, if not its narrow holding. Hans was not expressing some narrow objection to the particular federal power by which Louisiana had been haled into court, but was rather enunciating a fundamental principle of federalism, evidenced by the Eleventh Amendment, that the States retained their sovereign prerogative of immunity. That is clear throughout the opinion, but particularly in the following passage:
"Suppose that Congress, when proposing the Eleventh Amendment, had appended to it a proviso that nothing therein contained should prevent a State from being sued by its own citizens in cases arising under the Constitution or laws of the United States: can we imagine that it would have been adopted by the States? The supposition that it would is almost an absurdity on its face.
"The truth is, that the cognizance of suits and actions unknown to the law, and forbidden by the law, was not contemplated by the Constitution when establishing the judicial power of the United States." 134 U.S., at 15, 10 S.Ct., at 507.
This rationale is also evident from Hans' reliance upon the dissenting opinion of Justice Iredell in Chisholm-whose views, the Court said, "were clearly right,-as the people of the United States in their sovereign capacity [by ratifying the Eleventh Amendment] subsequently decided." 134 U.S., at 14, 10 S.Ct., at 506. Iredell's only words addressed precisely to the constitutional issue were as follows:
"So much, however, has been said on the Constitution, that it may not be improper to intimate that my present opinion is strongly against any construction of it, which will admit, under any circumstances, a compulsive suit against a State for the recovery of money. I think every word in the Constitution may have its full effect without involving this consequence, and that nothing but express words, or an insurmountable implication (neither of which I consider, can be found in this case) would authorize the deduction of so high a power." 2 Dall., at 449-450.
Our later cases are similarly clear that state immunity from suit in federal courts is a structural component of federalism, and not merely a default disposition that can be altered by action of Congress pursuant to its Article I powers. As we unanimously explained in Ex parte New York, 256 U.S. 490, 497, 41 S.Ct. 588, 589, 65 L.Ed. 1057 (1921):
"That a State may not be sued without its consent is a fundamental rule of jurisprudence having so important a bearing upon the construction of the Constitution of the United States that it has become established by repeated decisions of this court that the entire judicial power granted by the Constitution does not embrace authority to entertain a suit brought by private parties against a State without consent given: not one brought by citizens of another State, or by citizens or subjects of a foreign State, because of the Eleventh Amendment; and not even one brought by its own citizens, because of the fundamental rule of which the Amendment is but an exemplification."
In Great Northern Ins. Co. v. Read, 322 U.S. 47, 51, 64 S.Ct. 873, 875, 88 L.Ed. 1121 (1944), we said:
"A state's freedom from litigation was established as a constitutional right through the Eleventh Amendment. The inherent nature of sovereignty prevents actions against a state by its own citizens without its consent." In Atascadero, 473 U.S., at 242, 105 S.Ct., at 3147, we identified this principle as an essential element of the constitutional checks and balances:
"The 'constitutionally mandated balance of power' between the States and the Federal Government was adopted by the Framers to ensure the protection of 'our fundamental liberties.' [Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 572, 105 S.Ct. 1005, 1028, 83 L.Ed.2d 1016 (Powell, J., dissenting) ]. By guaranteeing the sovereign immunity of the States against suit in federal court, the Eleventh Amendment serves to maintain this balance."
And in recently refusing to overrule Hans in Welch-an opinion joined by Justice WHITE-the plurality opinion observed that Hans "established that the Eleventh Amendment embodies a broad constitutional principle of sovereign immunity"; that " 'a suit directly against a State by one of its own citizens is not one to which the judicial power of the United States extends, unless the State itself consents to be sued.' " 483 U.S., at 486, 107 S.Ct., at 2953, quoting Hans, 134 U.S., at 21, 10 S.Ct., at 509 (Harlan, J. concurring). The only attempt by either the plurality or Justice WHITE to reconcile today's holding with the "broad constitutional principle of sovereign immunity" established by these precedents is the plurality's facile assertion that "in approving the commerce power, the States consented to suits against them based on congressionally created causes of action," ante, at 22. The suggestion that this is the kind of consent our cases had in mind when reciting the familiar phrase, "the States may not be sued without their consent," does not warrant response.
The Court's conclusion is not only contrary to the clear understanding of a century of cases regarding the Eleventh Amendment, but it contradicts our unvarying approach to Article III as setting forth the exclusive catalog of permissible federal-court jurisdiction. When we have turned to consider whether "a surrender of [state] immunity [is inherent] in the plan of the convention," we have discussed that issue under the rubric of the various grants of jurisdiction in Article III, seeking to determine which of those grants must reasonably be thought to include suits against the States. See, e.g., Monaco, 292 U.S., at 328-330, 54 S.Ct., at 749-50. We have never gone thumbing through the Constitution, to see what other original grants of authority-as opposed to Amendments adopted after the Eleventh Amendment-might justify elimination of state sovereign immunity. If private suits against States, though not permitted under Article III (by virtue of the understanding represented by the Eleventh Amendment), are nonetheless permitted under the Commerce Clause, or under some other Article I grant of federal power, then there is no reason why the other limitations of Article III cannot be similarly exceeded. That Article would be transformed from a comprehensive description of the permissible scope of federal judicial authority to a mere default disposition, applicable unless and until Congress prescribes more expansive authority in the exercise of one of its Article I powers. That is not the regime the Constitution establishes.
The Court's error is clear enough from the embarrassing frailty of the case support to which the plurality opinion appeals. Justice BRENNAN refers to "statements . . . [that] lay a firm foundation," ante, at 14, a "path [that] continues," ibid., and a "message [that] is plain," ibid. What he notably does not cite is a single Supreme Court case, over the past 200 years upholding (in absence of a waiver) the congressional exercise of the asserted power-or even a single Supreme Court cas finding that such an exercise has occurred. How strange that such a useful power-one that the plurality finds essential to the achievement of congressional objectives, ante, at 20-22--never have been approved and rarely (if ever) have been asserted. Even the "message-sending" dicta that the plurality describes cannot be taken at face value. When the plurality states, for example, that "we have twice assumed that Congress has the authority to abrogate States' immunity when acting pursuant to the Commerce Clause," ante, at 15, it means not that we have assumed it to be true, but that we have assumed it for the sake of argument. See Welch, 483 U.S. at 475, 107 S.Ct., at 2947 (specifically refraining from even "intimating a view of the question"); County of Oneida v. Oneida Indian Nation, 470 U.S. 226, 252, 105 S.Ct. 1245, 1261, 84 L.Ed.2d 169 (1985). And of the two cases cited as referring to existence of a congressional power "to abrogate . . . immunity," ante, at 15, one is plainly discussing abrogation not pursuant to Article I but pursuant to the Fourteenth Amendment, see Quern v. Jordan, 440 U.S. 332, 343, 99 S.Ct. 1139, 1146, 59 L.Ed.2d 358 (1979), and the other is ambiguous but surely susceptible of that interpretation, see Green v. Mansour, 474 U.S. 64, 68, 106 S.Ct. 423, 425-426, 88 L.Ed.2d 371 (1985). In fact the only dicta even suggesting the position the Court today adopts were contained in Parden v. Terminal Railway of Alabama Docks Dept., 377 U.S. 184, 191-192, 84 S.Ct. 1207, 1212-13, 12 L.Ed.2d 233 (1964), and (because it quoted Parden ) in Employees v. Missouri Dept. of Public Health and Welfare, 411 U.S. at 286, 93 S.Ct., at 1616-17. As our later cases have made plain, see Fitzpatrick v. Bitzer, 427 U.S. 445, 451, 96 S.Ct. 2666, 2669, 49 L.Ed.2d 614 (1976), Parden § holding was based upon the State's waiver of its sovereign immunity. One aspect of the case has already been overruled, and another cast in doubt, see infra, at 2303; its dicta, and the dicta of a later case quoting its dicta, are hardly substantial support for the new constitutional principle the Court adopts.
Finally, the plurality opinion errs in relying on Fitzpatrick v. Bitzer, supra, which upheld a money award against a State under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S.C. § 2000e et seq. The distinction, as we carefully explained in that opinion, is that the Civil Rights Act was enacted pursuant to § 5 of the Fourteenth Amendment. We held that "the Eleventh Amendment, and the principle of state sovereignty which it embodies, see Hans v. Louisiana, . . . are necessarily limited" by the later Amendment, 427 U.S., at 456, 96 S.Ct., at 2671, whose substantive provisions were "by express terms directed at the States," id., at 453, 96 S.Ct., at 2670, and " 'were intended to be, what they really are, limitations of the power of the States and enlargements of the power of Congress,' " id., at 454, 96 S.Ct., at 2670, quoting Ex parte Virginia, 100 U.S. 339, 345, 25 L.Ed. 676 (1880). Nothing in this reasoning justifies limitation of the principle embodied in the Eleventh Amendment through appeal to antecedent provisions of the Constitution. The plurality asserts that it is no more impossible for provisions of the Constitution adopted concurrently with Article III to permit abrogation of state sovereign immunity than it is for provisions adopted subsequently. We do not dispute that that is possible, but only that it happened. As suggested above, if the Article I commerce power enables abrogation of state sovereign immunity, so do all the other Article I powers. An interpretation of the original Constitution which permits Congress to eliminate sovereign immunity only if it wants to renders the doctrine a practical nullity and is therefore unreasonable. The Fourteenth Amendment, on the other hand, was avowedly directed again t the power of the States, and permits abrogation of their sovereign immunity only for a limited purpose.
It remains for me to consider whether the doctrine of waiver applies here. The basis for application of a waiver theory would be that, subsequent to enactment of CERCLA, Pennsylvania acted as the "owner and operator of . . . a facility," 42 U.S.C. § 9607(a)(1), which latter term includes a "site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located," § 9601(9)(B); and that, by so acting, Pennsylvania voluntarily assumed the state liability for private suit that the legislation (assertedly) contains.
Parden is the only case in which we have held that the Federal Government can demand, as a condition to its permission of state action regulable under the Commerce Clause, the waiver of state sovereign immunity. Two Terms ago, in Welch, we overruled Parden insofar as that case spoke to the clarity of language necessary to constitute such a demand. See 483 U.S., at 478, 107 S.Ct., at 2948 (plurality opinion); id., at 496, 107 S.Ct., at 2958 (SCALIA, J., concurring in part and concurring in judgment). We explicitly declined to address, however, the continuing validity of Parden § holding that the Commerce Clause provided the constitutional power to make such a demand, 483 U.S., at 478, n. 8, 107 S.Ct., at 2948, n. 8. I would drop the other shoe.
There are obvious and fatal difficulties in acknowledging such a power if no Commerce Clause power to abrogate state sovereign immunity exists. All congressional creations of private rights of action attach recovery to the defendant's commission of some act, or possession of some status, in a field where Congress has authority to regulate conduct. Thus, all federal prescriptions are, insofar as their prospective application is concerned, in a sense conditional, and-to the extent that the objects of the prescriptions consciously engage in the activity or hold the status that produces liability-can be redescribed as invitations to "waiver." For example, one is not liable for damages to private parties under the federal securities laws, see the Securities Exchange Act of 1934, § 10(b), 48 Stat. 891, 15 U.S.C. § 78j(b), unless one participates in the activity of purchasing or selling securities affecting interstate commerce; and it is possible to describe that liability as not having been categorically imposed, but rather as being the result of a "waiver" of one's immunity, in exchange for federal permission to engage in that activity. At bottom, then, to acknowledge that the Federal Government can make the waiver of state sovereign immunity a condition to the State's action in a field that Congress has authority to regulate is substantially the same as acknowledging that the Federal Government can eliminate state sovereign immunity in the exercise of its Article I powers-that is, to adopt the very principle I have just rejected. There is little more than a verbal distinction between saying that Congress can make the Commonwealth of Pennsylvania liable to private parties for hazardous-waste clean-up costs on sites that the Commonwealth owns and operates, and saying the same thing but adding at the end "if the Commonwealth chooses to own and operate them." If state sovereign immunity has any reality, it must mean more than this.
The Court's holding today can be applauded only by those who think state sovereign immunity so constitutionally insignificant that Hans itself might as well be abandoned. It is only the Court's steadfast refusal to accept the fundamental structural importance of that doctrine, reflected in Hans and the other cases discussed above, that permits it to regard abrogation through Article I as an open question, and enables the plurality to fight the Hans-Atascadero battle all over again-but this time to win it on the field of the Commerce Clause. It is a particularly unhappy victory, since instead of cleaning up the allegedly muddled Eleventh Amendment jurisprudence produced by Hans, the Court leaves that in place, and adds to the clutter the astounding principle that Article III limitations can be overcome by simply exercising Article I powers. It is an unstable victory as well, since that principle is too much at war with itself to endure. We shall either overrule Hans in form as well as in fact, or return to its genuine meaning.
I would reverse the judgment of the Court of Appeals on the ground that federal courts have no power to entertain the present suit against the Commonwealth of Pennsylvania.

## Notes

* ↑ In Petty v. Tennessee-Missouri Bridge Comm'n, 359 U.S. 275, 79 S.Ct. 785, 3 L.Ed.2d 804 (1959), we said that a condition of suability of the Bridge Commission, which we interpreted Congress to have attached to its approval of the interstate compact creating the Commission, was accepted by the States when they implemented the compact. That was an alternative holding, since we also found that the terms of the compact itself made the Commission suable. Obviously, moreover, what Congress may exact with respect to new entities created by compacts that the States have no constitutional power to make without its explicit consent, see U.S.C.onst., Art. I, § 10, cl. 3, may be much greater than what it may exact in other contexts.
* ↑ A "waiver" theory would not support retroactive imposition of liability-but that is rare in any event. Moreover, it could be held that waiver cannot occur when the State is unaware of the facts that trigger its liability, or of the law that imposes it. It is difficult to imagine how ignorance of the facts could ever be found, unless (as is most unlikely) we should decline to attribute the knowledge of the State's agents to the State itself. Our cases discussing waiver have displayed no interest in "actual" state knowledge of either facts or law.
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