744
Kennedy, J., dissenting
Justice Kennedy, with whom Justice Scalia and Justice Thomas join, dissenting.
The Family and Medical Leave Act of 1993 makes explicit the congressional intent to invoke § 5 of the Fourteenth Amendment to abrogate state sovereign immunity and allow suits for money damages in federal courts. Ante, at 726- 727, and n. 1. The specific question is whether Congress may impose on the States this entitlement program of its own design, with mandated minimums for leave time, and then enforce it by permitting private suits for money damages against the States. This in turn must be answered by asking whether subjecting States and their treasuries to monetary liability at the insistence of private litigants is a congruent and proportional response to a demonstrated pattern of unconstitutional conduct by the States. See ante, at 728; Board of Trustees of Univ. of Ala. v. Garrett, 531 U. S. 356, 365 (2001); City of Boerne v. Flores, 521 U. S. 507, 520 (1997). If we apply the teaching of these and related cases, the family leave provision of the Act, 29 U. S. C. § 2612(a)(1)(C), in my respectful view, is invalid to the extent it allows for private suits against the unconsenting States.
Congress does not have authority to define the substantive content of the Equal Protection Clause; it may only shape the remedies warranted by the violations of that guarantee. City of Boerne, supra, at 519-520. This requirement has special force in the context of the Eleventh Amendment, which protects a State's fiscal integrity from federal intrusion by vesting the States with immunity from private actions for damages pursuant to federal laws. The Commerce Clause likely would permit the National Government to enact an entitlement program such as this one; but when Congress couples the entitlement with the authorization to sue the States for monetary damages, it blurs the line of accountability the State has to its own citizens. These basic concerns underlie cases such as Garrett and Kimel v. Florida Bd. of Regents, 528 U. S. 62 (2000), and should counsel far
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