Lewis Franklin Powell, Jr.

“ Edelman v. Jordan, 415 U.S. 651, 676–677 (1974) , rejected the argument that 42 U.S.C. § 1983 "was intended to create a waiver of the State's Eleventh Amendment immunity merely because an action could be brought under that section against state officers, rather than against the State itself." In a § 1983 [p705] action "a federal court's remedial power, consistent with the Eleventh Amendment, is necessarily limited to prospective injunctive relief, . . . and may not include a retroactive award which requires the payment of funds from the state treasury." ”

“ Act of Feb. 25, 1871, 16 Stat. 431, as adequate to override the States' constitutional immunity, even though there is no evidence of a congressional purpose in 1871 to abrogate the protections of the Eleventh Amendment. But the Court's rulings in Edelman and Employees are rendered obsolete if provisions like the "Dictionary Act" are all that is necessary to expose the States to monetary liability. After a century of § 1983 jurisprudence, in which States were not thought to be liable in damages, Edelman made clear that the 1871 measure does not override the Eleventh Amendment. ”

“ Absent such authorization, grounded in statutory language sufficiently clear to alert every voting Member of Congress of the constitutional implications of particular legislation, we undermine the values of federalism served by the Eleventh Amendment by inferring from congressional silence an intent to "place new or even enormous fiscal burdens on the States." Employees v. Missouri Public Health & Welfare Dept., 411 U.S. 279, 284 (1973) .
The Court notes that the Committee Reports and the defeat of two proposed amendments indicate a purpose to authorize counsel-fee awards against the States. ”