Cite as: 527 U. S. 666 (1999)
Breyer, J., dissenting
The statement does appeal to an intuition, namely, that it is somehow easier for the State, and hence more voluntary, to forgo "a gift or gratuity" than to refrain from "otherwise lawful activity," or that it is somehow more compelling or oppressive for Congress to forbid the State to perform an "otherwise lawful" act than to withhold "beneficence." But the force of this intuition depends upon the example that one chooses as its illustration; and realistic examples suggest the intuition is not sound in the present context. Given the amount of money at stake, it may be harder, not easier, for a State to refuse highway funds than to refrain from entering the investment services business. See U. S. Dept. of Commerce, Bureau of Census, Federal Aid to States for Fiscal Year 1998, p. 17 (Apr. 1999) (Federal Government provided over $20 billion to States for highways in 1998). It is more compelling and oppressive for Congress to threaten to withhold from a State funds needed to educate its children than to threaten to subject it to suit when it competes directly with a private investment company. See id., at 5 (Federal Government provided over $21 billion to States for education in 1998). The distinction that the majority seeks to make—drawn in terms of gifts and entitlements—does not exist.
The majority is also wrong to say that this Court has "nar-rowed" Parden in its "subsequent opinion[s]," ante, at 680, at least in any way relevant to today's decision. Parden considered two separate issues: (1) Does Congress have the power to require a State to waive its immunity? (2) How clearly must Congress speak when it does so? The Court has narrowed Parden only in respect to the second issue, not the first; but today we are concerned only with the first. The Court in Employees of Dept. of Public Health and Welfare of Mo. v. Department of Public Health and Welfare of Mo., 411 U. S. 279 (1973), for example, discussed whether Congress had, or had not, "lift[ed]" sovereign immunity, not whether it could, or could not, have done so. Id., at 285
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