Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 83 (1996)

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182

SEMINOLE TRIBE OF FLA. v. FLORIDA

Souter, J., dissenting

a traditional doctrine giving federal courts jurisdiction over state officers, in an effort to harmonize state sovereign immunity with federal law that is paramount under the Supremacy Clause? There are no plausible answers to these questions.

D

There is, finally, a response to the Court's rejection of Young that ought to go without saying. Our longstanding practice is to read ambiguous statutes to avoid constitutional infirmity, Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U. S. 568, 575 (1988) (" 'every reasonable construction must be resorted to, in order to save a statute from unconstitutionality' ") (quoting Hooper v. California, 155 U. S. 648, 657 (1895)). This practice alone (without any need for a clear statement to displace Young) would be enough to require Young's application. So, too, would the application of another rule, requiring courts to choose any reasonable construction of a statute that would eliminate the need to confront a contested constitutional issue (in this case, the place of state sovereign immunity in federal-question cases and the status of Union Gas). NLRB v. Catholic Bishop of Chicago, 440 U. S. 490, 500-501 (1979). Construing the statute to harmonize with Young, as it readily does, would have saved an Act of Congress and rendered a discussion on constitutional grounds wholly unnecessary. This case should be decided on this basis alone.

V

Absent the application of Ex parte Young, I would, of course, follow Union Gas in recognizing congressional power under Article I to abrogate Hans immunity. Since the reasons for this position, as explained in Parts II-III, supra, tend to unsettle Hans as well as support Union Gas, I should add a word about my reasons for continuing to accept Hans's holding as a matter of stare decisis.

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