698
Breyer, J., dissenting
("Congress did not lift the sovereign immunity of the States" (emphasis added)). And Employees' limitation of Parden, to "the area where private persons and corporations normally ran the enterprise," took place in the context of clarity, not power. 411 U. S., at 284 (specifying that "Congress can act" outside the limited area (emphasis added)). Although two Justices would have limited Parden's holding in respect to power, that limitation would simply have required Congress to give the States advance notice of the consequence (loss of sovereign immunity), which, as they noted, happened in Parden. 411 U. S., at 296-297 (Marshall, J., concurring in result).
The remaining cases the majority mentions offer it no greater support. One said, "We assume, without deciding or intimating a view of the question, that the authority of Congress to subject unconsenting States to suit in federal court is not confined to § 5 of the Fourteenth Amendment." Welch v. Texas Dept. of Highways and Public Transp., 483 U. S. 468, 475 (1987). Two others also considered legislative clarity, not power. Atascadero State Hospital, supra, at 247 (Rehabilitation Act "falls far short" of clearly indicating a waiver by a State accepting funds under the Act); Edelman v. Jordan, 415 U. S. 651, 674 (1974) (same for Social Security Act). Even Seminole Tribe carefully avoided calling Parden into question. While specifying that Congress cannot, in the exercise of its Article I powers, "abrogate unilaterally the States' immunity from suit," 517 U. S., at 59, it left open the scope of the term "unilaterally" by referring to Parden, without criticism, as standing for the "unremarkable, and completely unrelated, proposition that the States may waive their sovereign immunity," 517 U. S., at 65. In short, except for those in today's majority, no member of this Court had ever questioned the holding of Parden that the Court today discards because it cannot find "merit in attempting to salvage any remnant of it." Ante, at 680.
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