Cite as: 527 U. S. 666 (1999)
Breyer, J., dissenting
Parden had never been questioned because, Seminole Tribe or not, it still makes sense. The line the Court today rejects has been drawn by this Court to place States outside the ordinary dormant Commerce Clause rules when they act as "market participants." White v. Massachusetts Council of Constr. Employers, Inc., 460 U. S. 204, 206-208 (1983); Reeves, Inc. v. Stake, 447 U. S. 429, 434-439 (1980); Hughes v. Alexandria Scrap Corp., 426 U. S. 794, 804-810 (1976). And Congress has drawn this same line in the related context of foreign state sovereign immunity. 28 U. S. C. § 1605(a)(2). In doing so, Congress followed the modern trend, which "spread rapidly after the Second World War," regarding foreign state sovereign immunity. 1 Restatement (Third) of Foreign Relations Law of the United States, ch. 5, Introductory Note, p. 391 (1986) (recognizing that "immunity . . . gave states an unfair advantage in competition with private commercial enterprise"); see also Report of the International Law Commission on the Work of its Thirty-Eighth Session, Art. 11, ¶ 1, p. 7 (United Nations Doc. A/41/498, Aug. 26, 1986) (when a State engages in a commercial contract with a foreign person, "the State is considered to have consented to the exercise" of foreign jurisdiction in a proceeding arising out of that contract). Indeed, given the widely accepted view among modern nations that when a State engages in ordinary commercial activity sovereign immunity has no significant role to play, it is today's holding, not Parden, that creates the legal "anomaly."
II
I resist all the more strongly the Court's extension of Seminole Tribe in this case because, although I accept this Court's pre-Seminole Tribe sovereign immunity decisions, I am not yet ready to adhere to the proposition of law set forth in Seminole Tribe. Cf. EEOC v. Wyoming, 460 U. S. 226, 249-250 (1983) (Stevens, J., concurring). In my view, Congress does possess the authority to abrogate a State's sover-
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