Cite as: 527 U. S. 666 (1999)
Breyer, J., dissenting
at private conduct. Compare, e. g., 12 U. S. C. § 1841(b) (1994 ed., Supp. III) (exempting state companies from regulations covering federal bank holding companies); 15 U. S. C. § 77c(a)(2) (exempting state-issued securities from federal securities laws); and 29 U. S. C. § 652(5) (exempting States from the definition of "employer[s]" subject to federal occupational safety and health laws), with 11 U. S. C. § 106(a) (subjecting States to federal bankruptcy court judgments); 15 U. S. C. § 1122(a) (subjecting States to suit for violation of Lanham Act); 17 U. S. C. § 511(a) (subjecting States to suit for copyright infringement); and 35 U. S. C. § 271(h) (subjecting States to suit for patent infringement). And a Congress that includes the State not only within its substantive regulatory rules but also (expressly) within a related system of private remedies likely believes that a remedial exemption would similarly threaten that program. See Florida Pre-paid Postsecondary Ed. Expense Bd. v. College Savings Bank, ante, at 656-657 (Stevens, J., dissenting). It thereby avoids an enforcement gap which, when allied with the pressures of a competitive marketplace, could place the State's regulated private competitors at a significant disadvantage.
These considerations make Congress' need to possess the power to condition entry into the market upon a waiver of sovereign immunity (as "necessary and proper" to the exercise of its commerce power) unusually strong, for to deny Congress that power would deny Congress the power effectively to regulate private conduct. Cf. California v. Taylor, 353 U. S. 553, 566 (1957). At the same time they make a State's need to exercise sovereign immunity unusually weak, for the State is unlikely to have to supply what private firms already supply, nor may it fairly demand special treatment, even to protect the public purse, when it does so. Neither can one easily imagine what the Constitution's Founders would have thought about the assertion of sovereign immunity in this special context. These considerations, differing in kind or degree from those that would support a general
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