696
Breyer, J., dissenting
congressional "abrogation" power, indicate that Parden's holding is sound, irrespective of this Court's decisions in Seminole Tribe of Fla. v. Florida, 517 U. S. 44 (1996), and Alden v. Maine, post, p. 706.
Neither did Parden break "sharply with prior cases." Parden itself cited authority that found related "waivers" in at least roughly comparable circumstances. United States v. California, 297 U. S. 175 (1936), for example, held that a State, "by engaging in interstate commerce by rail, has subjected itself to the commerce power," id., at 185, which amounted to a waiver of a (different though related) substantive immunity. See also Taylor, supra, at 568. Parden also relied on authority holding that States seeking necessary congressional approval for an interstate compact had, "by venturing into the [federal] realm 'assume[d] the [waiver of sovereign immunity] conditions . . . attached.' " 377 U. S., at 196 (quoting Petty v. Tennessee-Missouri Bridge Comm'n, 359 U. S. 275, 281-282 (1959)). Earlier case law had found a waiver of sovereign immunity in a State's decision to bring a creditor's claim in bankruptcy. See Gardner v. New Jersey, 329 U. S. 565, 573-574 (1947). Later case law, suggesting that a waiver may be found in a State's acceptance of a federal grant, see Atascadero State Hospital v. Scanlon, 473 U. S. 234, 247 (1985), supports Parden's conclusion. Where is the sharp break?
The majority has only one answer to this question. It believes that this Court's case law requires any "waiver" to be "express" and "unequivocal." Ante, at 680. But the cases to which I have just referred show that is not so. The majority tries to explain some of those cases away with the statement that what is attached to the refusal to waive in those cases is "the denial of a gift or gratuity," while what is involved here is "the exclusion of the State from [an] otherwise lawful activity." Ante, at 687. This statement does not explain away a difference. It simply states a difference that demands an explanation.
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