Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 129 (1996)

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86

SEMINOLE TRIBE OF FLA. v. FLORIDA

Stevens, J., dissenting

As this passage demonstrates, Hans itself looked to see whether Congress had displaced the presumption that sovereign immunity obtains. Although the opinion did go to great lengths to establish the quite uncontroversial historical proposition that unconsenting States generally were not subject to suit, that entire discussion preceded the opinion's statutory analysis. See id., at 10-18. Thus, the opinion's thorough historical investigation served only to establish a presumption against jurisdiction that Congress must overcome, not an inviolable jurisdictional restriction that inheres in the Constitution itself.

Indeed, the very fact that the Court characterized the doctrine of sovereign immunity as a "presumption" confirms its assumption that it could be displaced. The Hans Court's inquiry into congressional intent would have been wholly inappropriate if it had believed that the doctrine of sovereign immunity was a constitutionally inviolable jurisdictional limitation. Thus, Hans provides no basis for the majority's conclusion that Congress is powerless to make States suable in cases not mentioned by the text of the Eleventh Amendment. Instead, Hans provides affirmative support for the view that Congress may create federal-court jurisdiction over private causes of action against unconsenting States brought by their own citizens.

It is true that the underlying jurisdictional statute involved in this case, 28 U. S. C. § 1331, does not itself purport to direct federal courts to ignore a State's sovereign immunity any more than did the underlying jurisdictional statute discussed in Hans, the Judiciary Act of 1875. However, unlike in Hans, in this case Congress has, by virtue of the Indian Gaming Regulatory Act, affirmatively manifested its intention to "invest its courts with" jurisdiction beyond the limits set forth in the general jurisdictional statute. 134 U. S., at 18. By contrast, because Hans involved only an implied cause of action based directly on the Constitution, the Judiciary Act of 1875 constituted the sole indication as

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