Cite as: 538 U. S. 721 (2003)
Kennedy, J., dissenting
rights, [but] instead pursued an object outside the scope of Section Five by imposing new, non-remedial legal obligations on the states." Beck, The Heart of Federalism: Pretext Review of Means-End Relationships, 36 U. C. D. L. Rev. 407, 440 (2003).
It bears emphasis that, even were the Court to bar unconsented federal suits by private individuals for money damages from a State, individuals whose rights under the Act were violated would not be without recourse. The Act is likely a valid exercise of Congress' power under the Commerce Clause, Art. I, § 8, cl. 3, and so the standards it prescribes will be binding upon the States. The United States may enforce these standards in actions for money damages; and private individuals may bring actions against state officials for injunctive relief under Ex parte Young, 209 U. S. 123 (1908). What is at issue is only whether the States can be subjected, without consent, to suits brought by private persons seeking to collect moneys from the state treasury. Their immunity cannot be abrogated without documentation of a pattern of unconstitutional acts by the States, and only then by a congruent and proportional remedy. There has been a complete failure by respondents to carry their burden to establish each of these necessary propositions. I would hold that the Act is not a valid abrogation of state sovereign immunity and dissent with respect from the Court's conclusion to the contrary.
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