Cite as: 527 U. S. 666 (1999)
Opinion of the Court
funds are gifts. In the present case, however, what Congress threatens if the State refuses to agree to its condition is not the denial of a gift or gratuity, but a sanction: exclusion of the State from otherwise permissible activity. Justice Breyer's dissent acknowledges the intuitive difference between the two, but asserts that it disappears when the gift that is threatened to be withheld is substantial enough. Post, at 697. Perhaps so, which is why, in cases involving conditions attached to federal funding, we have acknowledged that "the financial inducement offered by Congress might be so coercive as to pass the point at which 'pressure turns into compulsion.' " Dole, supra, at 211, quoting Steward Machine Co. v. Davis, 301 U. S. 548, 590 (1937). In any event, we think where the constitutionally guaranteed protection of the States' sovereign immunity is involved, the point of coercion is automatically passed—and the voluntariness of waiver destroyed—when what is attached to the refusal to waive is the exclusion of the State from otherwise lawful activity.
V
The principal thrust of Justice Breyer's dissent is an attack upon the very legitimacy of state sovereign immunity itself. In this regard, Justice Breyer and the other dissenters proclaim that they are "not yet ready," post, at 699 (emphasis added), to adhere to the still-warm precedent of Seminole Tribe and to the 110-year-old decision in Hans that supports it.5 Accordingly, Justice Breyer reiterates
5 Justice Breyer purports to "accept this Court's pre-Seminole Tribe sovereign immunity decisions," post, at 699 (dissenting opinion), but by that he could not mean Hans, but rather only the distorted view of Hans that prevailed briefly between Parden and Seminole Tribe. Parden was the first case to suggest that the sovereign immunity announced in Hans was so fragile a flower that it could be abrogated under Article I—a suggestion contrary to the reality that Hans itself involved a congressional conferral of jurisdiction enacted under Article I. See Pennsylvania v. Union Gas, 491 U. S. 1, 36-37 (1989) (Scalia, J., dissenting). Moreover, that conferral of jurisdiction was combined, in Hans, with a substantive
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