Nevada Dept. of Human Resources v. Hibbs, 538 U.S. 721, 21 (2003)

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Cite as: 538 U. S. 721 (2003)

Scalia, J., dissenting

tain whether the congressional enactment before us was truly " 'needed to secure the guarantees of the Fourteenth Amendment,' " I write separately to explain why I join the Court's judgment. Fitzpatrick v. Bitzer, 427 U. S. 445, 458 (1976) (Stevens, J., concurring in judgment) (quoting Katz-enbach v. Morgan, 384 U. S. 641, 651 (1966)).

The plain language of the Eleventh Amendment poses no barrier to the adjudication of this case because respondents are citizens of Nevada. The sovereign immunity defense asserted by Nevada is based on what I regard as the second Eleventh Amendment, which has its source in judge-made common law, rather than constitutional text. Pennsylvania v. Union Gas Co., 491 U. S. 1, 23 (1989) (Stevens, J., concurring). As long as it clearly expresses its intent, Congress may abrogate that common-law defense pursuant to its power to regulate commerce "among the several States." U. S. Const., Art. I, § 8. The family-care provision of the Family and Medical Leave Act of 1993 is unquestionably a valid exercise of a power that is "broad enough to support federal legislation regulating the terms and conditions of state employment." Fitzpatrick, 427 U. S., at 458 (Stevens, J., concurring in judgment).* Accordingly, Nevada's sovereign immunity defense is without merit.

Justice Scalia, dissenting.

I join Justice Kennedy's dissent, and add one further observation: The constitutional violation that is a prerequisite to "prophylactic" congressional action to "enforce" the Fourteenth Amendment is a violation by the State against which the enforcement action is taken. There is no guilt by association, enabling the sovereignty of one State to be abridged under § 5 of the Fourteenth Amendment because of violations by another State, or by most other States, or even

*See Stevens, "Two Questions About Justice," 2003 U. Ill. L. Rev. 821 (discussing Fitzpatrick).

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