Insert the following  materials after CB, p. 158, after Note 3 on that page and after Printz v. United States, as reprinted in CB SUPPLEMENT, pp. 2-6.
 

Limiting Amenability of States to Process in Federal Courts: Sovereign Immunity and the Revival of the Eleventh Amendment

       Sovereign immunity comes to us from the common law heritage. Its history is complicated by the provisions of Article III of the Constitution, by a 1793 U.S. Supreme Court case, and by the Eleventh Amendment, that was proposed in response to the holding of the case and ratified by 1795. Article III had provided that the judicial power of the United States extended to controversies between a State and citizens of another State. The case, Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793).  That case held, 4 to 1, that the Article III language was to be read as it was written and did ot have an implied limitation to cases where the State was plaintiff.  There are five reported opinions (Justices Iredell, Blair, Wilson, Cushing and Chief Justice Jay), and each is lengthy, thoughtful, well argued and still central to contemporary controversies about sovereign immunity.

        The Amendment reads:

"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 Unites States by Citizens of another State, or by Citizens of Subjects of any Foreign State."

       In particular, a line of cases culminating in Hans v. Louisiana, 134 U.S. 1 (1890) held that adoption of the Eleventh Amendment confirmed a generally held background belief in the existence and importance of a doctrine of sovereign immunity available to the Federal government as well as the States, so that the impact of the Eleventh Amendment reaches beyond its literal language. In the Hans case, the doctrine prevented a suit against Louisiana by one of its Citizens that attempted to invoke the (then novel) lower Federal court Federal Question jurisdiction. The suit involved a claim that the State was repudiating its bonds and, in doing so, was violating the plaintiff's Federal constitutional rights. Since then, the Eleventh Amendment has seemed to become a constitutional guarantor of sovereign immunity in general, including immunity from suit granted to a foreign nation and, even, an Indian tribe..

        Recently, the controversy over the status of sovereign immunity in the Federal courts has come to focus on the issue of whether, in the face of the Eleventh Amendment, Congress can open the Federal Courts to suits against the State that it has not consented to. What is needed, is to identify the circumstances in which the Federal government can remove the sovereign immunity of a State by explicitly creating a Federal forum, where the State will be an involuntary party defendant, for the resolution of Federal law or constitutional issues. It is established that in some circumstances, Congress can do just that. For example, Congress can create a Federal forum in which the State, and any subdivision of the State, must respond to a claim of violation of civil liberties guaranteed under the Fourteenth Amendment.   Fitzpatrick v. Bitzer, 427 U.S. 445 (1976). The date of the Fourteenth Amendment as subsequent to the Eleventh Amendment, together with the great power vested in Congress for its enforcement, support this conclusion. Recently it appeared that Congress had plenary power to dispense with State sovereign immunity in the exercise, say, of its power under the Commerce Clause. A plurality opinion, authored by Mr. Justice BRENNAN, had concluded this in Pennsylvania v. Union Gas, 491 U.S. 1 (1989). But in Seminole Tribe v. Florida, 517 U.S. 44 (1996) a five judge majority overruled Union Gas and concluded that Congress did not have power under the Commerce Clause (and the Indian Commerce clause) to dispense with any State's sovereign immunity. We will read parts of that decision.
 

 SEMINOLE TRIBE OF FLORIDA v. FLORIDA, 517 U.S. 44 (1996).

For U.S. Supreme Court Briefs See: 1995 WL 143442 (Pet.Brief) 1995 WL 271443 (Resp.Brief) For Transcript of Oral Argument See: 1995 WL 606007 (U.S.Oral.Arg.)

[Note: This case involves the jurisdiction which Congress attempted to give to the Federal District Courts under The Indian Gaming Regulatory Act (I.G.R.A.). The Act conditions Federal approval for opening Tribal gambling facilities (under Article I powers over commerce "with the Indian tribes") on the Tribe's first reaching an agreement with the State where the State authorizes the facility on mutually satisfactory financial and other terms. In order to avoid stalling by State officials, the Act imposes a duty of good faith bargaining on the State. The creation of Federal court jurisdiction (under 25 U.S.C.  2710(d)(7)) provides one step in the bargaining process for States and Tribes devised in the Act. Basically, the Tribe can resort to the Court for a determination that the State is not bargaining in good faith. Upon such a finding, the Court enters a judgment commanding the State to bargain. Thereafter, if the State still does not reach agreement with the Tribe, the Tribe will be able to sidestep the State by proceeding directly to an agreement with the Secretary of the Interior.]

REHNQUIST, C.J., delivered the opinion of the Court, in which O'CONNOR, SCALIA, KENNEDY, and THOMAS, JJ., joined. *** [Footnotes and other material edited.]

        The Court of Appeals for the Eleventh Circuit *** agreed with the District Court that Congress in 2710(d)(7) intended to abrogate the States' sovereign immunity, and also agreed that the Act had been passed pursuant to Congress' power under the Indian Commerce Clause, U.S. Const., Art. I,  8, cl. 3. The court disagreed with the District Court, however, that the Indian *53 Commerce Clause grants Congress the power to abrogate a State's Eleventh Amendment immunity from suit, and concluded therefore that it had no jurisdiction over petitioner's suit against Florida.*** [W]e granted certiorari, in order to consider [whether] the Eleventh Amendment prevents Congress from authorizing suits by Indian tribes against States for prospective injunctive relief to enforce legislation enacted pursuant to the Indian Commerce Clause?

*** *54The Eleventh Amendment provides: "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." Although the text of the Amendment would appear to restrict only the Article III diversity jurisdiction of the federal courts, "we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition ... which it confirms." Blatchford v. Native Village of Noatak, 501 U.S. 775, 779, 111 S.Ct. 2578, 2581, 115 L.Ed.2d 686 (1991). That presupposition, first observed over a century ago in Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890), has two parts: first, that each State is a sovereign entity in our federal system; and second, that " '[i]t is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent.' " Id., at 13, 10 S.Ct., at 506 (emphasis deleted), quoting The Federalist No. 81, p. 487 (C. Rossiter ed. 1961) (A. Hamilton). *** For over a century we have reaffirmed that federal jurisdiction over suits against unconsenting States "was not contemplated by the Constitution when establishing the judicial power of the United States." Hans, supra, at 15, 10 S.Ct., at 507. [Citations]*** *55 Here, petitioner has sued the State of Florida and it is undisputed that Florida has not consented to the suit. See Blatchford, supra, at 782, 111 S.Ct., at 2582 (States by entering into the Constitution did not consent to suit by Indian tribes). Petitioner nevertheless contends that its suit is not barred by state sovereign immunity [because] Congress through the Act abrogated the States' sovereign immunity.***

                                                            II

       Petitioner argues that Congress through the Act abrogated the States' immunity from suit. In order to determine whether Congress has abrogated the States' sovereign immunity, we ask two questions: first, whether Congress has "unequivocally expresse[d] its intent to abrogate the immunity," Green v. Mansour, 474 U.S. 64, 68, 106 S.Ct. 423, 426, 88 L.Ed.2d 371 (1985); and second, whether Congress has acted "pursuant to a valid exercise of power." Ibid.

                                                             A

*** Here, we agree with the parties, with the Eleventh Circuit in the decision below, 11 F.3d, at 1024, and with virtually every other court that has confronted the question [FN8] that Congress has in  2710(d)(7) provided an "unmistakably clear" statement of its intent to abrogate.

                                                               B

       *** Having concluded that Congress clearly intended to abrogate the States' sovereign immunity through section 2710(d)(7), we *58 turn now to consider whether the Act was passed "pursuant to a valid exercise of power." Green v. Mansour, 474 U.S., at 68, 106 S.Ct., at 425-426. Before we address that question here, however, we think it necessary first to define the scope of our inquiry. *** [O]ur inquiry into whether Congress has the power to abrogate unilaterally the States' immunity from suit is narrowly focused on one question: Was the Act in question passed pursuant to a constitutional provision granting Congress the power to abrogate? See, e.g., Fitzpatrick v. Bitzer, 427 U.S. 445, 452-456, 96 S.Ct. 2666, 2669-2671, 49 L.Ed.2d 614 (1976). Previously, in conducting that inquiry, we have found authority to abrogate under only two provisions of the Constitution. In Fitzpatrick, we recognized that the Fourteenth Amendment, by expanding federal power at the expense of state autonomy, had fundamentally altered the balance of state and federal power struck by the Constitution. Id., at 455, 96 S.Ct., at 2671. We noted that  1 of the Fourteenth Amendment contained prohibitions expressly directed at the States and that  5 of the Amendment expressly provided that "The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article." See id., at 453, 96 S.Ct., at 2670 (internal quotation marks omitted). We held that through the Fourteenth Amendment, federal power extended to intrude upon the province of the Eleventh Amendment and therefore that  5 of the Fourteenth Amendment allowed Congress to abrogate the immunity from suit guaranteed by that Amendment.
      *** In only one other case has congressional abrogation of the States' Eleventh Amendment immunity been upheld. In Pennsylvania v. Union Gas Co., 491 U.S. 1, 109 S.Ct. 2273, 105 L.Ed.2d 1 (1989), a plurality of the Court found that the Interstate Commerce Clause, Art. I,  8, cl. 3, granted Congress the power to abrogate state sovereign immunity, stating that the power to regulate interstate commerce would be "incomplete without the authority to render States liable in damages." Union Gas, 491 U.S., at 19-20, 109 S.Ct., at 2284. Justice White added the fifth vote necessary to the result in that case, but wrote separately in order to express *60 that he "[did] not agree with much of [the plurality's] reasoning." Id., at 57, 109 S.Ct., at 2296 (White, J., concurring in judgment in part and dissenting in part). *** Both parties make their arguments from the plurality decision in Union Gas, and we, too, begin there. We think it clear that Justice Brennan's opinion finds Congress' power to abrogate under the Interstate Commerce Clause from the States' cession of their sovereignty when they gave Congress plenary power to regulate interstate commerce. See Union Gas, 491 U.S., at 17, 109 S.Ct., at 2283 ("The important point ... is that the provision both expands federal power and contracts state power"). Respondents' focus elsewhere is misplaced. While the plurality decision states that Congress' power under the Interstate Commerce Clause would be incomplete without the power to abrogate, that statement is made solely in order to emphasize the broad scope of Congress' authority over interstate commerce. Id., at 19-20, 109 S.Ct., at 2284-2285. Moreover, respondents' rationale would mean that where Congress has *62 less authority, and the States have more, Congress' means for exercising that power must be greater. We read the plurality opinion to provide just the opposite. Indeed, it was in those circumstances where Congress exercised complete authority that Justice Brennan thought the power to abrogate most necessary. Id., at 20, 109 S.Ct., at 2285 ("Since the States may not legislate at all in [the aforementioned] situations, a conclusion that Congress may not create a cause of action for money damages against the States would mean that no one could do so. And in many situations, it is only money damages that will carry out Congress' legitimate objectives under the Commerce Clause"). Following the rationale of the Union Gas plurality, our inquiry is limited to determining whether the Indian Commerce Clause, like the Interstate Commerce Clause, is a grant of authority to the Federal Government at the expense of the States. The answer to that question is obvious. If anything, the Indian Commerce Clause accomplishes a greater transfer of power from the States to the Federal Government than does the Interstate Commerce Clause. This is clear enough from the fact that the States still exercise some authority over interstate trade but have been divested of virtually all authority over Indian commerce and Indian tribes. Under the rationale of Union Gas, if the States' partial cession of authority over a particular area includes cession of the immunity from suit, then their virtually total cession of authority over a different area must also include cession of the immunity from suit. *** We agree with the petitioner that the plurality opinion in Union Gas allows no principled distinction in favor of the States to be drawn between the Indian Commerce Clause and the Interstate Commerce Clause.
       *** Generally, the principle of stare decisis, and the interests that it serves, viz., "the evenhanded, predictable, and consistent development of legal principles, ... reliance on judicial decisions, and ... the actual and perceived integrity of the judicial process," Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 2609, 115 L.Ed.2d 720 (1991), counsel strongly against reconsideration of our precedent. Nevertheless, we always have treated stare decisis as a "principle of policy," Helvering v. Hallock, 309 U.S. 106, 119, 60 S.Ct. 444, 451, 84 L.Ed. 604 (1940), and not as an "inexorable command," Payne, 501 U.S., at 828, 111 S.Ct., at 2609. "[W]hen governing decisions are unworkable or are badly reasoned, 'this Court has never felt constrained to follow precedent.' " Id., at 827, 111 S.Ct., at 2609 (quoting Smith v. Allwright, 321 U.S. 649, 665, 64 S.Ct. 757, 765, 88 L.Ed. 987 (1944)). Our willingness to reconsider our earlier decisions has been "particularly true in constitutional cases, because in such cases 'correction through legislative action is practically impossible.' " Payne, supra, at 828, 111 S.Ct., at 2600, (quoting Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 407, 52 S.Ct. 443, 447, 76 L.Ed. 815 (1932) (Brandeis, J., dissenting)). The Court in Union Gas reached a result without an expressed rationale agreed upon by a majority of the Court. We have already seen that Justice Brennan's opinion received the support of only three other Justices.
       *** Since it was issued, Union Gas has created confusion among the lower courts that have sought to understand and apply the deeply fractured decision. See, e.g., Chavez v. Arte Publico Press, supra, at 543-545 ("Justice White's concurrence must be taken on its face to disavow" the plurality's theory); 11 F.3d, at 1027 (Justice White's "vague concurrence renders the continuing validity of Union Gas in doubt").
*** The plurality's rationale also deviated sharply from our established federalism jurisprudence and essentially eviscerated our decision in Hans. See Union Gas, supra, at 36, 109 S.Ct., at 2299 ("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") (SCALIA, J., dissenting). It was well established in 1989 when Union Gas was decided that the Eleventh Amendment stood for the constitutional principle that state sovereign immunity limited the federal courts' jurisdiction under Article III. The text of the Amendment itself is clear enough on this point: "The Judicial power of the United States shall not be construed to extend to any suit...." And our decisions since Hans had been equally clear that the Eleventh Amendment reflects "the fundamental principle of sovereign immunity [that] limits the grant of judicial authority in Article III." [Citations] As the dissent in Union Gas recognized, the plurality's conclusion--that Congress could under Article I expand the scope of the federal courts' jurisdiction under Article III--"contradict[ed] our unvarying approach to Article III as setting forth the exclusive catalog of permissible federal court jurisdiction." Union Gas, 491 U.S., at 39, 109 S.Ct., at 2301. Never before the decision in Union Gas had we suggested that the bounds of Article III could be expanded by Congress operating pursuant to any constitutional provision other than the Fourteenth Amendment. Indeed, it had seemed fundamental that Congress could not expand the jurisdiction of the federal courts beyond the bounds of Article III. *** The plurality's extended reliance upon our decision in Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976), that Congress could under the Fourteenth Amendment abrogate the States' sovereign immunity was also, we believe, misplaced. Fitzpatrick was based upon a rationale wholly inapplicable to the Interstate Commerce Clause, viz., that the Fourteenth Amendment, adopted well after the adoption of the Eleventh Amendment and the ratification of the Constitution, operated *66 to alter the pre- existing balance between state and federal power achieved by Article III and the Eleventh Amendment.
        *** Reconsidering the decision in Union Gas, we conclude that none of the policies underlying stare decisis require our continuing adherence to its holding. The decision has, since its issuance, been of questionable precedential value, largely because a majority of the Court expressly disagreed with the rationale of the plurality. See Nichols v. United States, 511 U.S. 738, ----, 114 S.Ct. 1921, 1927, 128 L.Ed.2d 745 (1994) (the "degree of confusion following a splintered decision ... is itself a reason for reexamining that decision"). The case involved the interpretation of the Constitution and therefore may be altered only by constitutional amendment or revision by this Court. Finally, both the result in Union Gas and the plurality's rationale depart from our established understanding of the Eleventh Amendment and undermine the accepted function of Article III. We feel bound to conclude that Union Gas was wrongly decided and that it should be, and now is, overruled.
          *** The dissent makes no effort to defend the decision in Union Gas, *** but nonetheless would find congressional power to abrogate in this case. Contending that our decision is a novel extension of the Eleventh Amendment, the dissent chides us for "attend[ing]" to dicta. We adhere in this case, however, not to mere obiter dicta, but rather to the well-established rationale upon which the *67 Court based the results of its earlier decisions. When an opinion issues for the Court, it is not only the result but also those portions of the opinion necessary to that result by which we are bound. Cf. Burnham v. Superior Court of Cal., County of Marin, 495 U.S. 604, 613, 110 S.Ct. 2105, 2112, 109 L.Ed.2d 631 (1990) (exclusive basis of a judgment is not dicta) (plurality); Allegheny County v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573, 668, 109 S.Ct. 3086, 3141, 106 L.Ed.2d 472 (1989) ("As a general rule, the principle of stare decisis directs us to adhere not only to the holdings of our prior cases, but also to their explications of the governing rules of law.") (KENNEDY, J., concurring and dissenting); Sheet Metal Workers v. EEOC, 478 U.S. 421, 490, 106 S.Ct. 3019, 3057, 92 L.Ed.2d 344 (1986) ("Although technically dicta, ... an important part of the Court's rationale for the result that it reache[s] ... is entitled to greater weight ...") (O'CONNOR, J., concurring). For over a century, we have grounded our decisions in the oft-repeated understanding of state sovereign immunity as an essential part of the Eleventh Amendment. In Principality of Monaco v. Mississippi, 292 U.S. 313, 54 S.Ct. 745, 78 L.Ed. 1282 (1934), the Court held that the Eleventh Amendment barred a suit brought against a State by a foreign state. Chief Justice Hughes wrote for a unanimous Court: "[N]either the literal sweep of the words of Clause one of  2 of Article III, nor the absence of restriction in the letter of the Eleventh Amendment, permits the conclusion that in all controversies of the sort described in Clause one, and omitted from the words of the Eleventh Amendment, a State may be sued without her consent. Thus Clause one specifically provides that the judicial power shall extend 'to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority.' But, although a case may arise under the Constitution and laws of the United States, the judicial power does not extend to it if the suit is *68 sought to be prosecuted against a State, without her consent, by one of her own citizens...." "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.' " Id., at 321-323, 54 S.Ct., at 747-748 (citations and footnote omitted); see id. at 329-330, 54 S.Ct., at 750-751; see also Pennhurst, 465 U.S., at 98, 104 S.Ct., at 906-907 ("In short, the principle of sovereign immunity is a constitutional limitation on the federal judicial power established in Art. III"); Ex parte New York, 256 U.S., at 497, 41 S.Ct., at 589 ("[T]he 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 ..."). It is true that we have not had occasion previously to apply established Eleventh Amendment principles to the question whether Congress has the power to abrogate state sovereign immunity (save in Union Gas). But consideration of that question must proceed with fidelity to this century-old doctrine. The dissent, to the contrary, disregards our case law in favor of a theory cobbled together from law review articles and its own version of historical events. The dissent cites not a single decision since Hans (other than Union Gas ) that supports its view of state sovereign immunity, instead relying upon the now-discredited decision in Chisholm v. Georgia, 2 Dall. 419, 1 L.Ed. 440 (1793). See, e.g., post, at ---- n. 47. Its undocumented and highly speculative extralegal explanation of *69 the decision in Hans is a disservice to the Court's traditional method of adjudication. See post, at 1154-1156. The dissent mischaracterizes the Hans opinion. That decision found its roots not solely in the common law of England, but in the much more fundamental " 'jurisprudence in all civilized nations.' " Hans, 134 U.S., at 17, 10 S.Ct., at 508, quoting Beers v. Arkansas, 20 How. 527, 529, 15 L.Ed. 991 (1858); see also The Federalist No. 81, p. 487 (C. Rossiter ed. 1961) (A. Hamilton) (sovereign immunity "is the general sense and the general practice of mankind"). The dissent's proposition that the common law of England, where adopted by the States, was open to change by the legislature, is wholly unexceptionable and largely beside the point: that common law provided the substantive rules of law rather than jurisdiction. Cf. Monaco, supra, at 323, 54 S.Ct., at 748 (state sovereign immunity, like the requirement that there be a "justiciable" controversy, is a constitutionally grounded limit on federal jurisdiction). It also is noteworthy that the principle of state sovereign immunity stands distinct from other principles of the common law in that only the former prompted a specific constitutional amendment. Hans--with a much closer vantage point than the dissent--recognized that the decision in Chisholm was contrary to the well-understood meaning of the Constitution. The dissent's conclusion that the decision in Chisholm was "reasonable," post, at 1148, certainly would have struck the Framers of the Eleventh Amendment as quite odd: that decision created "such a shock of surprise that the Eleventh Amendment was at once proposed and adopted." Monaco, supra, at 325, 54 S.Ct., at 749. The dissent's lengthy analysis of the text of the Eleventh Amendment is directed at a straw man--we long have recognized that blind reliance upon the text of the Eleventh Amendment is " 'to strain the Constitution and the law to a construction never imagined or dreamed of.' " Monaco, 292 U.S., at 326, 54 S.Ct., at 749, quoting Hans, 134 U.S., at 15, 10 S.Ct., at 507. The text dealt in terms only with the problem presented by the decision in Chisholm; in light of the fact that the federal courts did not *70 have federal question jurisdiction at the time the Amendment was passed (and would not have it until 1875), it seems unlikely that much thought was given to the prospect of federal question jurisdiction over the States.
        *** *71 In putting forward a new theory of state sovereign immunity, the dissent develops its own vision of the political system created by the Framers, concluding with the statement that "[t]he Framer's principal objectives in rejecting English theories of unitary sovereignty ... would have been impeded if a new concept of sovereign immunity had taken its place in federal question cases, and would have been substantially thwarted if that new immunity had been held untouchable by any congressional effort to abrogate it."* Post, at 1172. This sweeping statement ignores the fact that the Nation survived for nearly two centuries without the question of the existence of such power ever being presented to this Court. And Congress itself waited nearly a century before even conferring federal question jurisdiction on the lower federal courts.

[*= [Court's footnote 11]  This argument wholly disregards other methods of ensuring the States' compliance with federal law; the Federal Government can bring suit in federal court against a State, see, e.g., United States v. Texas, 143 U.S. 621, 644-645 (1892)(finding such poer necessary to the 'permanence of the Union'); an individual can bring suit against a state officer in order to ensure that the officer's conduct is in compliance with federal law, see, e.g., Ex parte Young, 209 U.S. 123 (1908); and this Court is empowered to review a question of federal law arising from a state court decision where a State has consented to suit, e.g., Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1921).]

        *** *72 In overruling Union Gas today, we reconfirm that the background principle of state sovereign immunity embodied in the Eleventh Amendment is not so ephemeral as to dissipate when the subject of the suit is an area, like the regulation of Indian commerce, that is under the exclusive control of the Federal Government. Even when the Constitution vests in Congress complete law-making authority over a particular area, the Eleventh Amendment prevents congressional authorization of suits by private parties against unconsenting States. The Eleventh Amendment restricts the *73 judicial power under Article III, and Article I cannot be used to circumvent the constitutional limitations placed upon federal jurisdiction. Petitioner's suit against the State of Florida must be dismissed for a lack of jurisdiction. ***

                                                          IV

       The Eleventh Amendment prohibits Congress from making the State of Florida capable of being sued in federal court. Thenarrow exception to the Eleventh Amendment provided by the Ex parte Young doctrine cannot be used to enforce  2710(d)(3) because Congress enacted a remedial scheme,  2710(d)(7), specifically designed for the enforcement of that right. The Eleventh Circuit's dismissal of petitioner's suit is hereby affirmed.
        *** It is so ordered.

Justice STEVENS, dissenting. *** The importance of the majority's decision to overrule the Court's holding in Pennsylvania v. Union Gas Co. cannot be overstated. The majority's opinion does not simply preclude Congress from establishing the rather curious statutory scheme under which Indian tribes may seek the aid of a federal court to secure a State's good faith negotiations over gaming regulations. Rather, it prevents Congress from providing a federal forum for a broad range of actions against States, from those sounding in copyright and patent law, to those concerning bankruptcy, environmental law, and the regulation of our vast national economy. *78 There may be room for debate over whether, in light of the Eleventh Amendment, Congress has the power to ensure that such a cause of action may be enforced in federal court by a citizen of another State or a foreign citizen. There can be no serious debate, however, over whether Congress has the power to ensure that such a cause of action may be brought by a citizen of the State being sued. Congress' authority in that regard is clear. As Justice SOUTER has convincingly demonstrated, the Court's contrary conclusion is profoundly misguided. Despite the thoroughness of his analysis, supported by sound reason, history, precedent, and strikingly uniform scholarly commentary, the shocking character of the majority's affront to a coequal branch of our Government merits additional comment. I For the purpose of deciding this case, I can readily assume that Justice Iredell's dissent in Chisholm v. Georgia, 2 Dall., at 429-450, and the Court's opinion in Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890), correctly stated the law that should govern our decision today. As I shall explain, both of those opinions relied on an interpretation of an Act of Congress rather than a want of congressional power to authorize a suit against the State. *** Congress has the authority to withdraw sovereign immunity in cases not covered by the Eleventh Amendment under all of its various powers. Nothing in Hans is to the contrary. As the passage quoted above demonstrates, Hans merely concluded that Congress, in enacting the Judiciary Act of 1875, did not manifest a desire to withdraw state sovereign immunity with sufficient clarity to overcome the countervailing presumption. Therefore, I rely only on the distinction between a statute that clearly directs federal courts to entertain suits against States, such as the one before us here, and a statute that does not, such as the Judiciary Act of 1875. In light of our repeated application of a clear-statement rule in Eleventh Amendment cases, from Hans onward, I would be surprised to learn that such a distinction is too thin to be acceptable. Given the nature of the cause of action involved in Hans, as well as the terms of the underlying jurisdictional statute, the Court's decision to apply the commonlaw doctrine of sovereign immunity in that case clearly should not control the outcome here. The reasons that may support a federal court's hesitancy to construe a judicially crafted constitutional remedy narrowly out of respect for a State's sovereignty do not bear on whether Congress may preclude a State's invocation of such a defense when it expressly establishes a federal remedy for the violation of a federal right.*** III In reaching my conclusion that the Constitution does not prevent Congress from making the State of Florida suable in federal court for violating one of its statutes, I emphasize that I agree with the majority that in all cases to which the judicial power does not extend--either because they are not within any category defined in Article III or because they are within the category withdrawn from Article III by the Eleventh Amendment--Congress lacks the power to confer jurisdiction on the federal courts. As I have previously insisted: "A statute cannot amend the Constitution." Pennsylvania v.Union Gas Co., 491 U.S., at 24, 109 S.Ct., at 2286-2287. It was, therefore, misleading for the Court in Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976), to imply that  5 of the Fourteenth Amendment authorized Congress to confer jurisdiction over cases that had been withdrawn from Article III by the Eleventh Amendment. Because that action had been brought by Connecticut citizens against officials of the State of Connecticut, jurisdiction was not precluded by the Eleventh Amendment. *** IV As I noted above, for the purpose of deciding this case, it is not necessary to question the wisdom of the Court's decision in Hans v. Louisiana. Given the absence of precedent for the Court's dramatic application of the sovereign immunity doctrine today, it is nevertheless appropriate to identify the questionable heritage of the doctrine and to suggest that there are valid reasons for limiting, or even rejecting that doctrine altogether, rather than expanding it. Except insofar as it has been incorporated into the text of the Eleventh Amendment, the doctrine is entirely the product of judge-made law. Three features of its English ancestry make it particularly unsuitable for incorporation into the law of this democratic Nation. First, the assumption that it could be supported by a belief that "the King can do no wrong" has always been absurd; the bloody path trod by English monarchs both before and after they reached the throne demonstrated the fictional character of any such assumption. Even if the fiction had been acceptable in Britain, the recitation in the Declaration of Independence of the wrongs committed by George III made that proposition unacceptable on this side of the Atlantic. *96 Second, centuries ago the belief that the monarch served by divine right made it appropriate to assume that redress for wrongs committed by the sovereign should be the exclusive province of still higher authority. [FN16] While such a justification for a rule that immunized the sovereign from suit in a secular tribunal might have been acceptable in a jurisdiction where a particular faith is endorsed by the government, it should give rise to skepticism concerning the legitimacy of comparable rules in a society where a constitutional wall separates the State from the Church. Third, in a society where noble birth can justify preferential treatment, it might have been unseemly to allow a commoner to hale the monarch into court. Justice Wilson explained how foreign such a justification is to this Nation's principles. See Chisholm v. Georgia, 2 Dall., at 455. Moreover, Chief Justice Marshall early on laid to rest the view that the purpose of the Eleventh Amendment was to protect a State's dignity. Cohens v. Virginia, 6 Wheat. 264, 406-407, 5 L.Ed. 257 (1821). Its purpose, he explained, was far more practical. " *** There is no difficulty in finding this cause. Those who were inhibited from commencing a suit against a State, or from prosecuting one which might be commenced before the adoption of the amendment, were persons who might probably be its creditors. There was not much reason to fear that foreign or sister States would be creditors to any considerable amount, and there was reason to retain the jurisdiction *97 of the Court in those cases, because it might be essential to the preservation of peace." Ibid. Nevertheless, this Court later put forth the interest in preventing "indignity" as the "very object and purpose of the [Eleventh] Amendment." In re Ayers, 123 U.S., at 505, 8 S.Ct., at 183. That, of course, is an "embarrassingly insufficient" rationale for the rule. See Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. 139, 151, 113 S.Ct. 684, 691, 121 L.Ed.2d 605 (1993) (STEVENS, J., dissenting.) Moreover, I find unsatisfying Justice Holmes' explanation that "[a] sovereign is exempt from suit, not because of any formal conception or obsolete theory, but 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, 27 S.Ct. 526, 527, 51 L.Ed. 834 (1907). As I have explained before, Justice Holmes' justification fails in at least two respects. "First, it is nothing more than a restatement of the obvious proposition that a citizen may not sue the sovereign unless the sovereign has violated the citizen's legal rights. It cannot explain application of the immunity defense in cases like Chisholm, in which it is assumed that the plaintiff's rights have in fact been violated--and those cases are, of course, the only ones in which the immunity defense is needed. Second, Holmes's statement does not purport to explain why a general grant of jurisdiction to federal courts should not be treated as an adequate expression of the sovereign's consent to suits against itself as well as to suits against *98 ordinary litigants." Stevens, Is Justice Irrelevant?, 87 Nw. U.L.Rev. 1121, 1126 (1993). In sum, as far as its common-law ancestry is concerned, there is no better reason for the rule of sovereign immunity "than that so it was laid down in the time of Henry IV." Holmes, The Path of the Law, 10 Harv. L.Rev. 457, 469 (1897). That "reason" for the perpetuation of this ancient doctrine certainly cannot justify the majority's expansion of it. In this country the sovereignty of the individual States is subordinate both to the citizenry of each State and to the supreme law of the federal sovereign. For that reason, Justice Holmes' explanation for a rule that allows a State to avoid suit in its own courts does not even speak to the question whether Congress should be able to authorize a federal court to provide a private remedy for a State's violation of federal law. In my view, neither the majority's opinion today, nor any earlier opinion by any Member of the Court, has identified any acceptable reason for concluding that the absence of a State's consent to be sued in federal court should affect the power of Congress to authorize federal courts to remedy violations of federal law by States or their officials in actions not covered by the Eleventh Amendment's explicit text. While I am persuaded that there is no justification for permanently enshrining the judge-made law of sovereign immunity, I recognize that federalism concerns--and even the interest *99 in protecting the solvency of the States that was at work in Chisholm and Hans--may well justify a grant of immunity from federal litigation in certain classes of cases. Such a grant, however, should be the product of a reasoned decision by the policymaking branch of our Government. For this Court to conclude that time-worn shibboleths iterated and reiterated by judges should take precedence over the deliberations of the Congress of the United States is simply irresponsible.***

Justice SOUTER, with whom Justice GINSBURG and Justice BREYER join, dissenting.*** [ Due to the great length of this dissent, extending to 100 pages in the United States Reports, I do not attempt to extract it. Instead, I borrow a brief summary from an expert: "Joined by Justices GINSBERG and BREYER, Justice SOUTER wrote a thorough dissent. After disclaiming any reliance upon Union Gas, Justice SOUTER silently rejected the plurality's reasoning in that case and instead endorsed a version of the Atascadero dissent. In a bold move, he attacked Hans directly, employing a lengthy analysis of the historical origins of sovereign immunity, numerous citations to commentators; analyses of the reception of the English common law into the United States, and a discussion of the nature of We the People' who founded the Constitution, Justice SOUTER concluded that the Eleventh Amendment bars litigation based on the status of the parties only -- and only when they are suing on non-federal claims. The amendment, he argued, has no applicability to Article III federal question jurisdiction. Like Justice STEVENS, Justice SOUTER concluded that Hans should be preserved as a matter of stare decisis, but that it had no applicability when Congress clearly intended to abrogate State immunity." Henry P. Monaghan, The Sovereign Immunity Exception," 110 HARVARD LAW REVIEW 102, 114-115 (1996).]
 

Notes and Questions

1. Note that the majority treated Congressional action with respect to Indian tribes and with respect to commerce among the States in exactly the same manner. Is that correct?

2. Is this case a reflection of "a visceral feeling among the majority of the Court that the role of the states in our federal structure has been so diminished as to become unintelligible. This feeling would generate an instinctive reaction to protect -- indeed, to create -- a role for the states, even if that role became merely symbolic. . . . [T]he Court rejected clear constitutional text [of the Eleventh Amendment] in preference to unarticulated and debatable historical explanations because of the power of symbolism." Henry P. Monaghan, The Sovereign Immunity Exception," 110 HARVARD LAW REVIEW 102, 120-121 (1996) Should we conclude on this basis with Professor Monaghan that "[d]espite their symbolism, constitutional conceptions of state sovereign immunity have no apparent reality. . . . [I]t is only in rare instances that a state will be unaccountable for its wrongs in any court of law." Id. at 122.

3. Still, what justifies evading the impact of the Eleventh Amendment in any case where the State has not consented to suit? Sovereign immunity is often avoided by the use of what is regularly recognized as a "fiction"? What cannot be maintained as a suit against the State (under sovereign immunity or the Eleventh Amendment) or against the Federal government, may be maintained by casting the lawsuit in the form of a lawsuit against named government officials. This is called the stripping' doctrine. The stripping doctrine can be illustrated in this very lawsuit. The Seminole Tribe named the State of Florida as defendant in this lawsuit, but they also named as parties defendant a number of Florida officials, including the governor. Once REHNQUIST had concluded that the Eleventh Amendment barred the Federal court proceeding against the State, the Seminole Tribe argued that the suit should go forward against the State officials, with a view to receiving injunctive relief that would effectively control the action of the State. In Seminole Tribe REHNQUIST concluded that, given the complex and unusual structure of the I.G.R.A., the Court was not free to replace the failed explicit Congressional grant of jurisdiction with a "court-made grant of jurisdiction." The dissenting Justices disagreed strongly on this point also. This is your introduction to the stripping doctrine. The stripping doctrine, as we will see, is the other shoe that must drop when we are assessing sovereign immunity and the Eleventh Amendment as barriers to judicial consideration of government action.
 
 
 

The Stripping Doctrine of Ex parte Young:

         This triumph of the doctrine of sovereign immunity as in Seminole Tribe is far from rare, but we must be careful about how we assess the ultimate impact of this case and others that uphold the application of the Eleventh Amendment or, in an analogous way, uphold State or Federal sovereign immunity. The fact is that the desire for judicial remedies against governmental action is very strong; and that desire generates pressures to provide exceptions to sovereign immunity. These pressures for judicial relief against government acts also exist in ordinary tort and contract cases just as much as in the context of constitutional law. In ordinary situations, important exceptions to sovereign immunity have developed at the hands of State and Federal legislatures and courts on a voluntary basis.  In order to see judicial relief from sovereign immunity bars to relief, see RESTATEMENT (SECOND) TORTS, section s 895A-895D; and for examples of legislative relief see the jurisdiction given to the Courts by in the Federal Tort Claims Act (Act of August 2, 1946) or the Quiet Title Act (P.L. 92-582, section 3(a)).
       But more often we meet, in the case of constitutional claims, the judicially devised exception or "fiction" that is usually referred to as the "stripping doctrine" or, from the case that gave it decisive prominence, the "Ex parte Young doctrine." In its beginnings, the device derives from the theory that an official acting beyond the law or ultra vires is personally liable for wrongdoing. So the policeman who commits an illegal battery or illegally seizes private property can be sued; and, if the policeman is a wrongdoer, he is "stripped" of governmental immunities which he might otherwise have been able to plead as a defense..
       After much litigation about the breadth of this exception, and some twenty years after the Hans decision, an almost unanimous Supreme Court (only Justice HARLAN dissented) approved an expanded version of the stripping doctrine. Under this version of the doctrine, injunctive relief will be available in Federal courts based on constitutional rights against those individually named officials who are charged with the enforcement of the laws that the plaintiffs seek to have judicially examined.. Ex parte Young. 208 U.S. 123 (1908).
          In that case, shareholders of a railway sought an injunction against the Attorney General of Minnesota and the state railway commission members, forbidding them to enforce new Minnesota legislation mandating a rail freight rate cap against the railway in which they held shares. Agreeing that the penalties to which the railway officials were exposed if they did not comply with the rate cap were very harsh, eight Justices held that the Federal courts were immediately open to the shareholders for injunctive relief if they could make out that the rate cap deprived them of property without compensation. The railway employees need not take the risk of suffering substantial penalties in order to test the law.
         The reach of the exception is enormous, so enormous that, as Henry Monaghan has said:
                "To characterize Young as an exception, however, gets matters nearly
        backward; the Eleventh Amendment is an exception to Young."  Henry
        Monaghan, The Sovereign Immunity 'Exception,' 110 HARVARD LAW REVIEW 102, 125 (1996).   This is what Monaghan means when he says that the current doctrine of sevoerign immunity lacks "apparent reality."  If a plaintiff is blocked by an assertion of sovereign immunity, that person can always try to re-frame the lawsuit as one against the actual officials charged with enforcing the law.
        The stripping doctrine is applicable to both Federal officials, United States v. Lee, 106 U.S. 196 (1882), and State officials. Tindal v. Wesley, 167 U.S. 204 (1897). Injunctive relief is the key remedy; the doctrine will not support an action for damages, and mandamus is not available. There is a special problem about recovering illegal taxes even against a receiver who still has possession of the fund. See Great Northern Life Insurance Co. v. Read, 322 U.S. 47 (1944). An appropriately framed prayer for injunctive relief brought against the correct State or Federal officials can artfully frame most constitutional questions about some particular State or Federal statute, rule or practice.
       Nevertheless, the most recent case to discuss the stripping doctrine has held that it cannot be framed so as to obtain the equivalent of a judgment of quiet title against a State, and suggested even more restrictive limits on the doctrine. We need to read parts of Idaho v. Coeur d'Alene Tribe, 521 U.S. 261(1997):
 

 IDAHO v. COEUR d'ALENE TRIBE OF IDAHO, 521 U.S. 261 (1996).

KENNEDY, J., announced the judgment of the Court and an opinion on which REHNQUIST, C.J. joined in its entirety, and in which O'CONNOR, SCALIA, and THOMAS, JJ joined in part. O'CONNOR, J., filed an opinion concurring in part and concurring in the judgment, in which SCALIA and THOMAS, JJ., joined. KENNEDY, J. *** In the northern region of Idaho, close by the Coeur d'Alene Mountains which are part of Bitterroot Range, lies tranquil Lake Coeur d'Alene. One of the Nation's most beautiful lakes, it is some 24 miles long and 1 to 3 miles wide. The Spokane River originates here and thence flows west, while the Lake in turn is fed by other rivers and streams, including Coeur d'Alene River which flows to it from the east, as does the forested Saint Joe River which begins high in the Bitterroots and gathers their waters along its 130-mile journey. To the south of the lake lies the more populated part of the Coeur d'Alene Reservation. Whether the Coeur d'Alene Tribe's ownership extends to the banks and submerged lands of the lake and various of these rivers and streams, or instead is vested in the State of Idaho, is the underlying dispute. We are limited here, however, to the important, preliminary question whether the Eleventh Amendment bars a federal court from hearing the Tribe's claim. I Alleging ownership in the submerged lands and bed of Lake Coeur d'Alene and of the various navigable rivers and streams that form part of its water system, the Coeur d'Alene Tribe, a federally recognized tribe, together with various individual tribe members sued in federal court. *** The Tribe claimed the beneficial interest, subject to the trusteeship of the United States, in the beds and banks of all navigable watercourses and waters (the "submerged lands") within the original boundaries of the Coeur d'Alene Reservation, as defined by Executive Order on November 8, 1873. Executive Order of November 8, 1873, reprinted in 1 C. Kappler, Indian Affairs: Laws and Treaties 837 (1904). The area in dispute includes the banks and beds and submerged lands of Lake Coeur d'Alene and some portions of the various rivers and streams we have described. In the alternative, the Tribe claimed ownership of the submerged lands pursuant to unextinguished aboriginal title. A state forum was available, see Idaho Code 5-328 (1990), but the Tribe brought this action in the United States District Court for the District of Idaho. The suit named the State of Idaho, various state agencies, and numerous state officials in their individual capacities. In addition to its title claims, the Tribe further sought a declaratory judgment [and] a preliminary and permanent injunction prohibiting defendants from regulating, permitting or taking any action in violation of the Tribe's rights of exclusive use and occupancy, quiet enjoyment and other ownership interest in the submerged lands *** The defendants moved to dismiss ***The court held the Eleventh Amendment barred the claims against Idaho and the agencies. It concluded further that the action against the officials for quiet title and declaratory relief was barred by the Eleventh Amendment because these claims were the functional equivalents of a damages award against the State. *** The Ninth Circuit *** Court of Appeals found the Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), doctrine applicable and allowed the claims for declaratory and injunctive relief against the officials to proceed insofar as they sought to preclude continuing violations of federal law. The requested declaratory and injunctive relief, the Court of Appeals reasoned, is based upon Idaho's ongoing interference with the Tribe's alleged ownership rights premised on the 1873 Executive Order as later ratified by federal statute. See Act of Mar. 3, 1891, ch. 543,  19, 26 Stat. 1026-1029. It further found it conceivable that the Tribe could prove facts entitling it to relief. It reversed the District Court's dismissal of the declaratory and injunctive relief claims and ordered the case remanded. *** II A The grant of federal judicial power is cast in terms of its reach or extent. Article III,  2 of the Constitution provides the "judicial Power shall extend" to the cases it enumerates, including "all Cases, in Law and Equity, arising under this Constitution [and] the Laws of the United States." The Eleventh Amendment, too, employs the term "extend." It provides: "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." This point of commonality could suggest that the Eleventh Amendment, like the grant of Article III,  2, jurisdiction, is cast in terms of reach or competence, so the federal courts are altogether disqualified from hearing certain suits brought against a State. This interpretation, however, has been neither our tradition nor the accepted construction of the Amendment's text. Rather, a State can waive its Eleventh Amendment protection and allow a federal court to hear and decide a case commenced or prosecuted against it. The Amendment, in other words, enacts a sovereign immunity from suit, rather than a nonwaivable limit on the federal judiciary's subject-matter jurisdiction. The immunity is one the States enjoy save where there has been " 'a surrender of this immunity in the plan of the convention.' " Principality of Monaco v. Mississippi, 292 U.S. 313, 322-323, 54 S.Ct. 745, 748, 78 L.Ed. 1282 (1934) (quoting The Federalist No. 81). The Court's recognition of sovereign immunity has not been limited to the suits described in the text of the Eleventh Amendment. To respect the broader concept of immunity, implicit in the Constitution, which we have regarded the Eleventh Amendment as evidencing and exemplifying, we have extended a State's protection from suit to suits brought by the State's own citizens. Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890). Furthermore, the dignity and respect afforded a State, which the immunity is designed to protect, are placed in jeopardy whether or not the suit is based on diversity jurisdiction. As a consequence, suits invoking the federal-question jurisdiction of Article III courts may also be barred by the Amendment. Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). In extended criticisms of the Court's recognition that the immunity can extend to suits brought by a State's own citizens and to suits premised on federal questions, some of them as recent as last Term, see id., at ---- - ----, 116 S.Ct., at 1138-1138 (STEVENS, J., dissenting), id., at ---- - ----, 116 S.Ct., at 1153-1154 (SOUTER, J., dissenting), various dissenting and concurring opinions have urged a change in direction. See, e.g., Atascadero State Hospital v. Scanlon, 473 U.S. 234, 247, 105 S.Ct. 3142, 3150, 87 L.Ed.2d 171 (1985) (Brennan, J., dissenting). Were we to abandon our understanding of the Eleventh Amendment as reflecting a broader principle of sovereign immunity, the Tribe's suit, which is based on its purported federal property rights, might proceed. These criticisms and proposed doctrinal revisions, however, have not found acceptance with a majority of the Court. We adhere to our precedent. Under well established principles, the Coeur d'Alene Tribe, and, a fortiori, its members, are subject to the Eleventh Amendment. In Blatchford v. Native Village of Noatak, 501 U.S. 775, 779-782, 111 S.Ct. 2578, 2581-2583, 115 L.Ed.2d 686 (1991), we rejected the contention that sovereign immunity only restricts suits by individuals against sovereigns, not by sovereigns against sovereigns. Since the plan of the convention did not surrender Indian tribes' immunity for the benefit of the States, we reasoned that the States likewise did not surrender their immunity for the benefit of the tribes. Indian tribes, we therefore concluded, should be accorded the same status as foreign sovereigns, against whom States enjoy Eleventh Amendment immunity. Id., at 782, 111 S.Ct., at 2582-2583. The Tribe's suit, accordingly, is barred by Idaho's Eleventh Amendment immunity unless it falls within the exception this Court has recognized for certain suits seeking declaratory and injunctive relief against state officers in their individual capacities. See Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). The Young exception to sovereign immunity was an important part of our jurisprudence when the Court adhered to its precedents in the face of the criticisms we have mentioned, and when the Court, overruling Pennsylvania v. Union Gas Co., 491 U.S. 1, 109 S.Ct. 2273, 105 L.Ed.2d 1 (1989), held that Congress, in the exercise of its power to regulate commerce with Indian tribes, may not abrogate state sovereign immunity. Seminole Tribe, supra, at ----, n. 14, 116 S.Ct., at 1131, n. 14. We do not, then, question the continuing validity of the Ex parte Young doctrine. Of course, questions will arise as to its proper scope and application. In resolving these questions we must ensure that the doctrine of sovereign immunity remains meaningful, while also giving recognition to the need to prevent violations of federal law. When suit is commenced against state officials, even if they are named and served as individuals, the State itself will have a continuing interest in the litigation whenever state policies or procedures are at stake. This commonsense observation of the State's real interest when its officers are named as individuals has not escaped notice or comment from this Court, either before or after Young. See, e.g., Osborn v. Bank of United States, 9 Wheat. 738, 846-847, 6 L.Ed. 204 (1824) (stating that the State's interest in the suit was so "direct" that "perhaps no decree ought to have been pronounced in the cause, until the State was before the court") (Marshall, C.J.); Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 114, n. 25, 104 S.Ct. 900, 915, n. 25, 79 L.Ed.2d 67 (1984) (noting that Young rests on a fictional distinction between the official and the State); see also Florida Dept. of State v. Treasure Salvors, Inc., 458 U.S. 670, 685, 102 S.Ct. 3304, 3315, 73 L.Ed.2d 1057 (1982) (opinion of STEVENS, J.) (recognizing the irony that a state official's conduct may be considered " 'state action' " for Fourteenth Amendment purposes yet not for purposes of the Eleventh Amendment). Indeed, the suit in Young, which sought to enjoin the state attorney general from enforcing state law, implicated substantial state interests. 209 U.S., at 174, 28 S.Ct., at 459 ("[T]he manifest, indeed the avowed and admitted, object of seeking [the requested] relief [is] to tie the hands of the State ") (Harlan, J., dissenting). We agree with these observations. To interpret Young to permit a federal court-action to proceed in every case where prospective declaratory and injunctive relief is sought against an officer, named in his individual capacity, would be to adhere to an empty formalism and to undermine the principle, reaffirmed just last Term in Seminole Tribe, that Eleventh Amendment immunity represents a real limitation on a federal court's federal-question jurisdiction. The real interests served by the Eleventh Amendment are not to be sacrificed to elementary mechanics of captions and pleading. Application of the Young exception must reflect a proper understanding of its role in our federal system and respect for state courts instead of a reflexive reliance on an obvious fiction. *** B Putting aside the acts of state officials which are plainly ultra vires under state law itself, see Pennhurst, supra, at 101-102, n. 11, 104 S.Ct., at 908-909, n. 11, there are, in general, two instances where Young has been applied. The first is where there is no state forum available to vindicate federal interests, thereby placing upon Article III courts the special obligation to ensure the supremacy of federal statutory and constitutional law. This is a most important application of the Ex parte Young doctrine and is exemplified by the facts in Young itself. See 209 U.S., at 146, 28 S.Ct., at 448 ("The necessary effect and result of [the challenged] legislation must be to preclude a resort to the courts (either state or Federal) for the purpose of testing its validity"). *** Where there is no available state forum the Young rule has special significance. In that instance providing a federal forum for a justiciable controversy is a specific application of the principle that the plan of the convention contemplates a regime in which federal guarantees are enforceable so long as there is a justiciable controversy. The Federalist No. 80, p. 475 (C. Rossiter ed. 1961) (A. Hamilton) ("[T]here ought always to be a constitutional method of giving efficacy to constitutional provisions"). We of course express no opinion as to the circumstances in which the unavailability of injunctive relief in state court would raise constitutional concerns under current doctrine. *** With the growth of statutory and complex regulatory schemes, this mode of analysis might have been somewhat obscured. *** The reluctance to place much reliance on the availability of a state forum can be understood in part by the prevalence of the idea that if a State consented to suit in a state forum it had consented, by that same act, to suit in a federal forum. See, e.g., Davis v. Gray, 16 Wall. 203, 221, 21 L.Ed. 447 (1873); Reagan v. Farmers' Loan & Trust Co., supra, at 391, 14 S.Ct., at 1052. Today, by contrast, it is acknowledged that States have real and vital interests in preferring their own forum in suits brought against them, interests that ought not to be disregarded based upon a waiver presumed in law and contrary to fact. See, e.g., Edelman v. Jordan, 415 U.S. 651, 673, 94 S.Ct. 1347, 1360-1361, 39 L.Ed.2d 662 (1974). In this case, there is neither warrant nor necessity to adopt the Young device to provide an adequate judicial forum for resolving the dispute between the Tribe and the State. Idaho's courts are open to hear the case, and the State neither has nor claims immunity from their process or their binding judgment. C Even if there is a prompt and effective remedy in a state forum, a second instance in which Young may serve an important interest is when the case calls for the interpretation of federal law. This reasoning, which is described as the interest in having federal rights vindicated in federal courts, can lead to expansive application of the Young exception. ***Interpretation of federal law is the proprietary concern of state, as well as federal, courts. It is the right and duty of the States, within their own judiciaries, to interpret and to follow the Constitution and all laws enacted pursuant to it, subject to a litigant's right of review in this Court in a proper case. The Constitution and laws of the United States are not a body of law external to the States, acknowledged and enforced simply as a matter of comity. The Constitution is the basic law of the Nation, a law to which a State's ties are no less intimate than those of the National Government itself. The separate States and the Government of the United States are bound in the common cause of preserving the whole constitutional order. Federal and state law "together form one system of jurisprudence." Claflin v. Houseman, 93 U.S. 130, 137, 23 L.Ed. 833 (1876). It would be error coupled with irony were we to bypass the Eleventh Amendment, which enacts a scheme solicitous of the States, on the sole rationale that state courts are inadequate to enforce and interpret federal rights in every case. *** Our precedents do teach us, nevertheless, that where prospective relief is sought against individual state officers in a federal forum based on a federal right, the Eleventh Amendment, in most cases, is not a bar. See, e.g., Willcox, 212 U.S., at 40, 29 S.Ct., at 195. Indeed, since Edelman we have consistently allowed suits seeking prospective injunctive relief based on federal violations to proceed. Last Term, however, we did not allow a suit raising a federal question to proceed based on Congress' provision of an alternative review mechanism. Whether the presumption in favor of federal- court jurisdiction in this type of case is controlling will depend upon the particular context. *** D Our recent cases illustrate a careful balancing and accommodation of state interests when determining whether the Young exception applies in a given case. *** This case-by-case approach to the Young doctrine has been evident from the start. Before Larson v. Domestic and Foreign Commerce Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949) (a federal sovereign immunity case), we allowed suits to proceed, as explained above, if the official committed a tort as defined by the common law. While Larson rejected this reliance on the common law of torts, see id., at 692-695, 69 S.Ct., at 1462-1464, the importance of case-by-case analysis was recognized again in Seminole Tribe. There, in holding the Young exception inapplicable to a suit based on federal law, we relied on Schweiker v. Chilicky, 487 U.S. 412, 108 S.Ct. 2460, 101 L.Ed.2d 370 (1988). Chilicky, in turn, addressed whether a Bivens type of action, a right of action stemming from the Constitution itself, see Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), applied in a suit alleging due process violations in the denial of Social Security disability benefits. A Bivens action was unavailable, the Chilicky Court held, given the particular circumstances present in the case. Seminole Tribe 's implicit analogy of Young to Bivens is instructive. Both the Young and Bivens lines of cases reflect a sensitivity to varying contexts, and courts should consider whether there are "special factors counselling hesitation," 403 U.S., at 396, 91 S.Ct., at 2005, before allowing a suit to proceed under either theory. The range of concerns to be considered in answering this inquiry is broad. See id., at 407, 91 S.Ct., at 2010 (Harlan, J., concurring). As no one disputes, the Young fiction is an exercise in line- drawing. There is no reason why the line cannot be drawn to reflect the real interests of States consistent with the clarity and certainty appropriate to the Eleventh Amendment's jurisdictional inquiry. III We now turn to consider whether the Tribe may avoid the Eleventh Amendment bar and avail itself of the Young exception. Although the "difference between the type of relief barred by the Eleventh Amendment and that permitted under Ex parte Young will not in many instances be that between day and night," Edelman, 415 U.S., at 667, 94 S.Ct., at 1357, this suit, we decide, falls on the Eleventh Amendment side of the line, and Idaho's sovereign immunity controls. The Tribe has alleged an on-going violation of its property rights in contravention of federal law and seeks prospective injunctive relief. The Tribe argues that it should therefore be able to avail itself of the Ex parte Young fiction. *** An allegation of an on-going violation of federal law where the requested relief is prospective is ordinarily sufficient to invoke the Young fiction. However, this case is unusual in that the Tribe's suit is the functional equivalent of a quiet title action which implicates special sovereignty interests. *** It is common ground between the parties, at this stage of the litigation, that the Tribe could not maintain a quiet title suit against Idaho in federal court, absent the State's consent. The Eleventh Amendment would bar it. Tindal, 167 U.S., at 223, 17 S.Ct., at 777-778. Despite this prohibition, the declaratory and injunctive relief the Tribe seeks is close to the functional equivalent of quiet title in that substantially all benefits of ownership and control would shift from the State to the Tribe. This is especially troubling when coupled with the far-reaching and invasive relief the Tribe seeks, relief with consequences going well beyond the typical stakes in a real property quiet title action. The suit seeks, in effect, a determination that the lands in question are not even within the regulatory jurisdiction of the State. The requested injunctive relief would bar the State's principal officers from exercising their governmental powers and authority over the disputed lands and waters. The suit would diminish, even extinguish, the State's control over a vast reach of lands and waters long deemed by the State to be an integral part of its territory. To pass this off as a judgment causing little or no offense to Idaho's sovereign authority and its standing in the Union would be to ignore the realities of the relief the Tribe demands. *** The dissent *** would divest the State of its sovereign control over submerged lands, lands with a unique status in the law and infused with a public trust the State itself is bound to respect. As we stressed in Utah Div. of State Lands v. United States, 482 U.S. 193, 195-198, 107 S.Ct. 2318, 2320-2322, 96 L.Ed.2d 162 (1987), lands underlying navigable waters have historically been considered "sovereign lands." State ownership of them has been "considered an essential attribute of sovereignty." Id., at 195, 107 S.Ct., at 2320. The Court from an early date has acknowledged that the people of each of the Thirteen Colonies at the time of independence "became themselves sovereign; and in that character hold the absolute right to all their navigable waters and the soils under them for their own common use, subject only to the rights since surrendered by the Constitution to the general government." Martin v. Lessee of Waddell, 16 Pet. 367, 410, 10 L.Ed. 997 (1842). Then, in Lessee of Pollard v. Hagan, 3 How. 212, 11 L.Ed. 565 (1845), the Court concluded that States entering the Union after 1789 did so on an "equal footing" with the original States and so have similar ownership over these "sovereign lands." Id., at 228-229. In consequence of this rule, a State's title to these sovereign lands arises from the equal footing doctrine and is "conferred not by Congress but by the Constitution itself." Oregon ex rel. State Land Bd. v. Corvallis Sand & Gravel Co., 429 U.S. 363, 374, 97 S.Ct. 582, 589, 50 L.Ed.2d 550 (1977). The importance of these lands to state sovereignty explains our longstanding commitment to the principle that the United States is presumed to have held navigable waters in acquired territory for the ultimate benefit of future States and "that disposals by the United States during the territorial period are not lightly to be inferred, and should not be regarded as intendedunless the intention was definitely declared or otherwise made very plain." United States v. Holt State Bank, 270 U.S. 49, 55, 46 S.Ct. 197, 199, 70 L.Ed. 465 (1926). *** Idaho views its interest in the submerged lands in similar terms. Idaho law provides: "Water being essential to the industrial prosperity of the state, and all agricultural development ... its control shall be in the state, which, in providing for its use, shall equally guard all the various interests involved. All the waters of the state, when flowing in their natural channels ... are declared to be the property of the state." Idaho Code 42-101 (1990). Title to these public waters is held by the State of Idaho in its sovereign capacity for the purpose of ensuring that it is used for the public benefit. Poole v. Olaveson, 82 Idaho 496, 503, 356 P.2d 61, 65 (1960). *** The dignity and status of its statehood allows Idaho to rely on its Eleventh Amendment immunity and to insist upon responding to these claims in its own courts, which are open to hear and determine the case. The judgment of the Court of Appeals is reversed in part, and the case is remanded for proceedings consistent with this opinion.
It is so ordered.

Justice O'CONNOR, with whom Justice SCALIA and Justice THOMAS join, concurring in part and concurring in the judgment. *** I agree with the Court that the Tribe's claim cannot go forward in federal court. *** In my view, because a ruling in the Tribe's favor, in practical effect, would be indistinguishable from an order granting the Tribe title to submerged lands, the Young exception to the Eleventh Amendment's bar is not properly invoked here. While I therefore agree that the Tribe's suit must be dismissed, I believe that the principal opinion is flawed in several respects. In concluding that the Tribe's suit cannot proceed, the principal opinion reasons that federal courts determining whether to exercise jurisdiction over any suit against a state officer must engage in a case-specific analysis of a number of concerns, including whether a state forum is available to hear the dispute, what particular federal right the suit implicates, and whether "special factors counse[l] hesitation" in the exercise of jurisdiction. *** *** When a plaintiff seeks prospective relief to end an ongoing violation of federal rights, ordinarily the Eleventh Amendment poses no bar. Milliken, 433 U.S., at 289-290, 97 S.Ct., at 2761-2762. *** We have frequently acknowledged the importance of having federal courts open to enforce and interpret federal rights. [Citations] There is no need to call into question the importance of having federal courts interpret federal rights--particularly as a means of serving a federal interest in uniformity--to decide this case. Nor does acknowledging the interpretive function of federal courts suggest that state courts are inadequate to apply federal law. ***Our case law simply does not support the proposition that federal courts must evaluate the importance of the federal right at stake before permitting an officer's suit to proceed. *** In sum, the principal opinion replaces a straightforward inquiry into whether a complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective with a vague balancing test that purports to account for a "broad" range of unspecified factors. *** I do not subscribe to the principal opinion's reformulation of the appropriate jurisdictional inquiry for all cases in which a plaintiff invokes the Young doctrine. . . .

*** Justice SOUTER, with whom Justice STEVENS, Justice GINSBURG, and Justice BREYER join, dissenting. *** While there is reason for great satisfaction that JUSTICE O'CONNOR's view is the controlling one, it is still true that the effect of the two opinions is to redefine and reduce the substance of federal subject-matter jurisdiction to vindicate federal rights. And it is indeed substance, not form, that is here at stake, for this case comes on the heels of last Term's fundamentally erroneous decision in Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). Consequently, if an individual or Indian tribe may not enter a federal court to obtain relief against state officers for violating federally derived property rights, that private plaintiff simply may seek no relief in a federal forum. I respectfully dissent. I *** When Congress has not *** displaced the Young doctrine, a federal court has jurisdiction in an individual's action against state officers so long as two conditions are met. The plaintiff must allege that the officers are acting in violation of federal law [Citations], and must seek prospective relief to address an ongoing violation, not compensation or other retrospective relief for violations past. [Citations] The Tribe's claim satisfies each condition. A *** This is a perfect example of a suit for relief congnizble under Ex parte Young. Young described the officials' act on the basis of which jurisdiction was found in that case "simply [as] an illegal act upon th epart of a state official in attempting by the use of the name of the State to enforce a legislative enactment which is void because unconstitutional . . . . The State has no power to impart to him any immunity from responsibility to the supreme authority of the United States." Ex parte Young, 209 U.S. at 159-160. Later cases have made it clear that a state official's act is also ultra vires for purposes of the Young doctrine when it violates other valid federal law. See, e.g., Larsonv. Dom. & For. Commerce Corp., 337 U.S. 682, 698-699 (1949). Such an illegal act amounting to ultra vires action is, of course, what the Tribe claims here. This case, to be sure, differs from Young in two respects, but neither of them affects the Tribe's jurisidctional position. First, the Tribe's claim to have federal law on its side rests upon combined executive and congressional action, not the National Constitution. *** The second difference from Young is that this case turns on federal law governing passage of title to property; but a government's assumption of title to property is no different from its assumption of any state authority that it may ultimately turn out not to have. That a claim involves title is thus irrelevant under Young and has never been treated otherwise. Not only has a title claim never displaced Young so as to render state officials immune to suit by a rival claimant ***, but long before Young had even been decided United States v. Lee, 106 U.S. (16 Otto) 196 (1882), held federal officers to be subject to a possessory action for [*72] land claimed by the United States on the basis of federal law. Since for purposes of Young Idaho and its officials claiming title under federal law are in the same posutre as the United States and its officers in Lee, the appropriate analysis is the one exemplified in that case. *** B The second condition for applying Young is that relief be propspective, not retrospective, a bar to future violations of federal law, not recompense for past mistakes. *** The present compaoint asks for just such releif by seeking to enjoin the State's sport and recreational regulation of the water covering the lands. It asks for no damages for past infringement of the tribal interest asserted and no accounting for fees previously collected by the State in the cours4e of its regulatory oversight. While there would, of course, be significant consequences to the State if the Tribe should prevail on the merits, that will be true whenever Young applies.*** However burdensome it may be to the State when its officers are ordered to stop violating federal law, it is not the cost of compliance with federal law, but its character as such, that counts. *** In sum, the Tribe seeks no damages or restitution to compensate for the State's exercise of authority over the land, nor does it ask for rescission of a past transfer of property. It says that state officers, by their continuing regulation, are committing an ongoing violation of federal law that may be halted by an injunction against the State officers.

Notes and Questions

1. Is Justice SOUTER correct in saying that the principal case establishes that the stripping doctrine is available without regard to the availability of a State forum? He does this by piecing his view of the case with that of Justice O'CONNOR. Moreover, as Justice SOUTER points out, in a portion of his dissent not reproduced here [521 U.S. --- n. 15] all 50 States have a version of the stripping doctrine even where there is a local problem with sovereign immunity.

2. Does the KENNEDY opinion suggest that there are cases in which there is no effective resort to the courts to raise a constitutional issue? Does he suggest that there are cases where the courts will reach a claim of constitutional violation only when, if ever, the State action complained of becomes dispositive in some private action involving third parties? One point of the O'CONNOR concurrence in the result and of SOUTER's dissent, is that it is critical that every person have the facility of bringing the government into court directly whenever a constitutional issue arises. Do their arguments insist that there cannot be a constitutional wrong without a judicial remedy? Is that the law? See Reich v. Collins, 513 U.S. 106 (1994)("In a long line of cases, this Court has established that due process requires a clear and certain' remedy for taxes collected in violation of federal law.").

3. Notice that even if the doctrine of Ex parte Young is given the widest applicability, and we treat Henry Monaghan's remark (that Ex parte Young is the rule, and sovereign immunity the exception) as literally accurate, it is still the case that there is a special and technical way in which constitutional substantive issues must be procedurally framed. The constitutional lawyer must take pains to bring the case with the correct parties plaintiff (the doctrine of "standing" requires that plaintiffs have a real and substantial "stake" in the outcome), the correct parties defendant (in order to invoke the doctrine of Ex parte Young), at the correct time and under the correct circumstances (so that a real "case or controversy" exists and is neither mooted nor unripe for decision). And still, there is the -- remote -- possibility that the Courts will refuse to decide the case because it presents a political question.