704
Breyer, J., dissenting
local/national/international balance is often highly context specific. And judicial rules that would allocate power are often far too broad. Legislatures, however, can write laws that more specifically embody that balance. Specific regulatory schemes, for example, can draw lines that leave certain local authority untouched, or that involve States, local communities, or citizens directly through the grant of funds, powers, rights, or privileges. Depending upon context, Congress may encourage or require interaction among citizens working at various levels of government. That is why the modern substantive federalist problem demands a flexible, context-specific legislative response (and it does not help to constitutionalize an ahistoric view of sovereign immunity that, by freezing its remedial limitations, tends to place the State beyond the reach of law).
I recognize the possibility that Congress may achieve its objectives in other ways. Ex parte Young, 209 U. S. 123 (1908), is still available, though effective only where damages remedies are not important. Congress, too, might create a federal damages-collecting "enforcement" bureaucracy charged with responsibilities that Congress would prefer to place in the hands of States or private citizens, Alden v. Maine, post, at 755-756; Printz v. United States, 521 U. S. 898, 977 (1997) (Breyer, J., dissenting). Or perhaps Congress will be able to achieve the results it seeks (including decentralization) by embodying the necessary state "waivers" in federal funding programs—in which case, the Court's decisions simply impose upon Congress the burden of rewriting legislation, for no apparent reason.
But none of these alternatives is satisfactory. Unfortunately, Seminole Tribe and today's related decisions separate one formal strand from the federalist skein—a strand that has been understood as antirepublican since the time of Cicero—and they elevate that strand to the level of an immutable constitutional principle more akin to the thought of James I than of James Madison. They do so when the role
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