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Souter, J., dissenting
have required such a plain statement when Congress preempts the historic powers of the States, Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947), imposes a condition on the grant of federal moneys, South Dakota v. Dole, 483 U. S. 203, 207 (1987), or seeks to regulate a State's ability to determine the qualifications of its own officials, Gregory, supra, at 464.
When judging legislation passed under unmistakable Article I powers, no further restriction could be required. Nor does the Court explain why more could be demanded. In the past, we have assumed that a plain-statement requirement is sufficient to protect the States from undue federal encroachments upon their traditional immunity from suit. See, e. g., Welch v. Texas Dept. of Highways & Public Transp., 483 U. S., at 475; Atascadero State Hospital v. Scan-lon, 473 U. S., at 239-240. It is hard to contend that this rule has set the bar too low, for (except in Union Gas) we have never found the requirement to be met outside the context of laws passed under § 5 of the Fourteenth Amendment. The exception I would recognize today proves the rule, moreover, because the federal abrogation of state immunity comes as part of a regulatory scheme which is itself designed to invest the States with regulatory powers that Congress need not extend to them. This fact suggests to me that the political safeguards of federalism are working, that a plain-statement rule is an adequate check on congressional over-reaching, and that today's abandonment of that approach is wholly unwarranted.
There is an even more fundamental "clear statement" principle, however, that the Court abandons today. John Marshall recognized it over a century and a half ago in the very context of state sovereign immunity in federal-question cases:
rogatives of their governments"); Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 Colum. L. Rev. 543 (1954).
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