Page:United States Reports 502 OCT. TERM 1991.pdf/370

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

on, longstanding congressional regulation. See Welch, 483 U. S., at 473 (constructive consent to suit not sufficient). The “reliance” exception to the clear statement rule thus reinstates a theory of constructive waiver of sovereign immunity that our cases have repeatedly rejected. See ibid.; Atascadero State Hospital v. Scanlon, 473 U. S., at 241, 246– 247; Port Authority Trans-Hudson Corp. v. Feeney, 495 U. S. 299, 306 (1990). In sum, the Court’s newly created exception to the clear statement rule threatens to eliminate it altogether, except when the States’ Eleventh Amendment sovereign immunity is abrogated in federal court. It will be difficult, if not impossible, for lower courts to know when they should apply the rule in interpreting statutes that upset the traditional balance between the State and Federal Governments outside the context of Eleventh Amendment immunity. IV The Court fears that strict application of our precedents will require a clear statement for all congressional regulation of state railroads. Ante, at 203. That fear is not well founded. The clear statement doctrine recently articulated in Gregory and in Will requires a clear statement by Congress before we assume that it intends to alter the usual constitutional balance of power in areas “traditionally regulated by the States.” Gregory, 501 U. S., at 460. States have traditionally regulated their liability to damages suits; they have not traditionally regulated interstate railroads. See Wabash, St. L. & P. R. Co. v. Illinois, 118 U. S. 557, 577 (1886); Transportation Union v. Long Island R. Co., 455 U. S. 678, 687 (1982). The clear statement rule in this context applies to FELA because it provides for a cause of action for damages; it does not apply to other congressional regulation of state railroads. Nor would application of the clear statement rule here overrule Port Authority Trans-Hudson Corp. v. Feeney,