396
Kennedy, J., concurring
pulsion to appear in federal court and, like any other defendant, has the unilateral right to block removal of the case, any appearance the State makes in federal court may well be regarded as voluntary in the same manner as the appearances which gave rise to the waivers in Clark and Gardner.
Some Courts of Appeals, following this reasoning, have recognized that consent to removal may constitute a waiver. Newfield House, Inc. v. Massachusetts Dept. of Pub. Welfare, 651 F. 2d 32, 36, n. 3 (CA1), cert. denied, 454 U. S. 1114 (1981); see also Estate of Porter v. Illinois, 36 F. 3d 684, 691 (CA7 1994); Silver v. Baggiano, 804 F. 2d 1211, 1214 (CA11 1986); Gwinn Area Community Schools v. Michigan, 741 F. 2d 840, 847 (CA6 1984). These cases have first inquired, however, whether state law authorized the attorneys representing the State to waive the Eleventh Amendment on its behalf. Petitioners cited this qualification when we raised the issue at oral argument in the instant case. This was also the Court's apparent concern in Ford Motor Co., in which it held:
"It is conceded by the respondents that if it is within the power of the administrative and executive officers of Indiana to waive the state's immunity, they have done so in this proceeding. The issue thus becomes one of their power under state law to do so. As this issue has not been determined by state courts, this Court must resort to the general policy of the state as expressed in its Constitution, statutes and decisions. Article 4, § 24 of the Indiana Constitution provides: " 'Provision may be made, by general law, for bringing suit against the State, as to all liabilities originating after the adoption of this Constitution; but no special act authorizing such suit to be brought, or making compensation to any person claiming damages against the State, shall ever be passed.' "We interpret this provision as indicating a policy prohibiting state consent to suit in one particular case in
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