Page:United States Reports 502 OCT. TERM 1991.pdf/368

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HILTON v. SOUTH CAROLINA PUBLIC RAILWAYS COMM’N O’Connor, J., dissenting

outside the Eleventh Amendment context, we have recognized the rule’s constitutional dimensions. Gregory v. Ashcroft, 501 U. S. 452, 461 (1991) (“This plain statement rule is nothing more than an acknowledgment that the States retain substantial sovereign powers under our constitutional scheme, powers with which Congress does not readily interfere”); Will, 491 U. S., at 65 (“[I]f Congress intends to alter the ‘usual constitutional balance between the States and the Federal Government,’ it must make its intention to do so ‘unmistakably clear in the language of the statute’ ”) (quoting Atascadero State Hospital v. Scanlon, supra, at 242); United States v. Bass, 404 U. S. 336, 349 (1971) (clear statement rule “rooted in . . . concepts of American federalism”). Thus, the Court’s position that we are not required to employ the clear statement rule in this context ignores the constitutional source of the rule. The Eleventh Amendment spells out one instance, but not the only one, in which respect and forbearance is due from the national to the state governments, a respect that cements our federation in the Constitution. The clear statement rule assumes that Congress will show that respect by not lightly abridging the powers or sovereignty retained by the States. From this standpoint, it makes little sense to apply the clear statement rule to congressional enactments that make the States liable to damages suits in federal courts, but not to apply the clear statement rule to congressional enactments that make the States liable to damages suits in their own courts. Sovereign immunity, a crucial attribute of separate governments, is infringed in both cases. The suggested dichotomy makes even less sense if we consider the remarkable anomaly that these two canons of statutory construction create: a statutory scheme in which state courts are the exclusive avenue for obtaining recovery under a federal statute.