782
Breyer, J., dissenting
agency will reach a decision. The State subsequently may take the matter to court in order to obtain judicial review of any adverse agency ruling, but, if it does so, its opponent in that court proceeding is not a private party, but the agency itself. 28 U. S. C. § 2344. (And unlike some other administrative schemes, see, e. g., Verizon Md. Inc. v. Public Serv. Comm'n of Md., ante, at 651-653 (Souter, J., concurring), the Commission would not be a party in name only.) Alternatively, the State may do nothing, in which case either the Commission or the Attorney General must seek a court order compelling the State to obey. 46 U. S. C. App. §§ 1710, 1713 (1994 ed. and Supp. V). The Commission, but not a private party, may assess a penalty against the State for noncompliance, § 1712; and only a court acting at the Commission's request can compel compliance with a penalty order. In sum, no one can legally compel the State's obedience to the Shipping Act's requirements without a court order, and in no case would a court issue such an order (absent a State's voluntary waiver of sovereign immunity, see Atascadero State Hospital v. Scanlon, 473 U. S. 234, 238 (1985)) absent the request of a federal agency or other federal instrumentality.
In Alden this Court distinguished for sovereign immunity purposes between (a) a lawsuit brought by the Federal Government and (b) a lawsuit brought by a private person. It held that principles of "sovereign immunity" barred suit in the latter instance but not the former, because the former— a suit by the Federal Government—"require[s] the exercise of political responsibility for each suit prosecuted against a State." 527 U. S., at 756. That same "exercise of political responsibility" must take place here in every instance prior to the issuance of an order that, from a legal perspective, will compel the State to obey. To repeat: Without a court proceeding the private individual cannot legally force the State to act, to pay, or to desist; only the Federal Government may institute a court proceeding; and, in deciding
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