784
Breyer, J., dissenting
an agency staff member to investigate the matter, which investigation would lead to an order similar to the order at issue here with similar legal and practical consequences.
Viewed solely in terms of practical pressures, the pressures upon a State to respond before Congress or the agency, to answer the private citizen's accusations, to oppose his requests for legally adverse agency or congressional action, would seem no less powerful than those at issue here. Once one avoids the temptation to think (mistakenly) of an agency as a court, it is difficult to see why the practical pressures at issue here would "affront" a State's "dignity" any more than those just mentioned. And if the latter create no constitutional "dignity" problem, why should the former? The Court's answer—that "[s]overeign immunity concerns are not implicated" unless the "Federal Government attempts to coerce States into answering the complaints of private parties in an adjudicative proceeding," ante, at 764, n. 16—simply begs the question of when and why States should be entitled to special constitutional protection.
The Court's more direct response lies in its claim that the practical pressures here are special, arising from a set of statutes that deprive a nonresponding State of any meaningful judicial review of the agency's determinations. See ante, at 760-764. The Court does not explain just what makes this kind of pressure constitutionally special. But in any event, the Court's response is inadequate. The statutes clearly provide the State with full judicial review of the initial agency decision should the State choose to seek that review. 28 U. S. C. § 2342(3)(B)(iv). That review cannot "affront" the State's "dignity, for it takes place in a court proceeding in which the Commission, not the private party, will oppose the State. § 2344.
Even were that not so, Congress could easily resolve the resulting problem by making clear that the relevant statutes authorize full judicial review in an enforcement action brought against a State. For that matter, one might in-
Page: Index Previous 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 NextLast modified: October 4, 2007