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Online Alexander Bickel symposium: Too principled to stand on principle?
Louis Michael Seidman is the Carmack Waterhouse Professor of Constitutional Law at Georgetown University Law Center. He served as a law clerk for J. Skelly Wright of the D.C. Circuit and U.S. Supreme Court Justice Thurgood Marshall. His most recent book is On Constitutional Disobedience (Oxford, 2012).
At the dawn of the American constitutional tradition, John Marshall wrote in Marbury v. Madison (1803) that “[q]uestions in their nature political . . . can never be made in this court.” He then proceeded to craft a brilliant political document that asserted sweeping power in the guise of self-abnegation and brazenly delegitimized his political opponents while artfully shielding himself from political retribution.
Over two centuries later, another politically adept Chief Justice similarly seized the mantle of restraint and neutrality to advance his political agenda. Imagine how the world looked to John Roberts on the day before the Court decided National Federation of Independent Business v. Sebelius (2012). Recent polling data showed that the number of Americans who have confidence in the Supreme Court had declined significantly and was now below fifty percent. Almost three-fourths of Americans thought that the Justices use political considerations rather than law to decide some cases.
This impression was reinforced by the fact that in most important cases, Justices appointed by Republican presidents are on one side while Justices appointed by Democratic presidents are on the other. The conservatives on the Court handed the election to George Bush in Bush v. Gore (2000) and may well have handed it to Mitt Romney in Citizens United v. FEC (2010) and in Crawford v. Marion County Election Board (2008), the case upholding voter identification laws. We have witnessed the spectacle of Justice Antonin Scalia openly attacking President Obama in a rant delivered from the bench and of President Obama attacking the Court as the Justices sat trapped as ceremonial guests in the well of the House.
And then we have what may well be ahead: The Court’s invalidation of all of affirmative action and Section 5 of the 1965 Voting Rights Act – a centerpiece of the civil rights revolution – by five-to-four votes along familiar Democratic and Republican lines. Faced with this challenge to the Court’s prestige, Roberts could not have been happy with the prospect of the Court striking down a central piece of a President’s domestic agenda for the first time since the New Deal with yet another five-four partisan split.
That is the background. What about the case itself? There were certainly reasons why Chief Justice Roberts might have wanted to invalidate the Affordable Care Act: The Commerce Clause argument against the mandate has become a central, defining tenet in conservative legal dogma, and he would not have wanted to be associated with rejection of it. The Spending Clause argument holds the possibility of substantially restricting federal social legislation going forward. He would not have wanted to reject that either. But there were also reasons why upholding the mandate would be attractive. The mandate itself is quite unpopular, but other provisions of the Act are quite popular. Strike down the mandate alone, and Republicans are left in the unenviable position of defending the repeal of the popular provisions. Uphold it, and Romney can run on its unpopularity. Moreover, many experts think that the Act is likely to unravel without any help from the Court. Why not let Obama stew in his own juices?
So how can these positions reconciled? Brilliantly, it turns out. Chief Justice Roberts managed to cast the deciding vote creating the new Commerce, Necessary and Proper, and Spending Clause limitations, but also managed to save the mandate while implicitly (if inaccurately) accusing Obama of breaking his campaign pledge not to raise taxes on the middle class. Moreover, like John Marshall before him, he achieved this political triumph while arguing for judicial restraint and making the Court appear to be above politics.
What are we to make of political performances of this sort? Alexander Bickel’s subtle, contradictory, and, I believe, widely misunderstood book provides us with a useful guide. To appreciate Professor Bickel’s views, we must situate them in the world he lived in, just as the opinions written by John Marshall and John Roberts must be situated in their worlds. At the time Bickel wrote, the Warren Court had not yet achieved iconic status, and the outcome of its dramatic intervention in race relations in Brown v. Board of Education (1954) remained very much in doubt. “Massive resistance” was still at its height, the President was not yet firmly committed to a civil rights agenda, and Congress was dominated by southern segregationists.
Faced with uncertain and wavering political support, the Supreme Court had charted a cautious path. Whereas the Brown I opinion was marked by sweeping and powerful rhetoric, Brown II (1955) suggested pragmatism and willingness to compromise. Between Brown II and the publication of Bickel’s The Least Dangerous Branch in 1962, the Court had remained almost entirely silent, seemingly avoiding the conflict that its own opinion had sparked. Indeed, in Naim v. Naim (1955), a case brought to the Court shortly after Brown, the Court went to embarrassing lengths to avoid deciding the constitutionality of a blatantly racist anti-miscegenation law – despite a statute requiring the Court to hear the case – when doing so would have upset white southern sensibilities. To many contemporary observers, the result in Naim seemed completely lawless and unprincipled.
The Court’s behavior during this period produced an intellectual crisis among the liberal legal intelligentsia, still struggling with the legacy of Lochner (1905) and its repudiation. In the immediate wake of Brown, Judge Learned Hand had re-opened the old questions about whether any form of judicial review was legitimate. In a famous response, Professor Herbert Wechsler defended judicial review, but only so long as it was “principled.” At the conclusion of his essay, he raised serious doubts about whether Brown could be defended on a principled basis.
As a young legal academic, Professor Bickel was doubtless caught up in the intellectual misgivings raised by Hand and Wechsler. But he had also clerked for Justice Felix Frankfurter while Brown was being considered and believed that the case had been decided correctly. The project of Bickel’s book, then, was to take into account the arguments that Hand and Wechsler had made, while also defending the Court’s Brown and post-Brown stance.
Accomplishing this task required a delicate and complex dialectical argument. On the one hand, judicial review in general and Brown in particular were defensible on the ground that the Court could appropriately protect enduring principles against temporary majoritarian pressure. On the other hand, no society – and certainly no Court – could survive on an exclusive diet of rigid adherence to unwavering principle. It followed that the Court could maintain its principled stance only through unprincipled restrictions on the occasions for declarations of principle. It was crucial for the Court to act in principled fashion as, pace Wechsler, it surely had acted in Brown. But in the real world, the Court could only maintain this principled stance if it paid some attention to politics when it decided whether to decide. Hence, Brown I, Brown II, and Naim had all been rightly decided.
Professor Bickel’s key insight, never fully articulated, was that constitutional law cannot be self-validating. Judges must inevitably make judgments about whether to apply constitutional law. There will be some cases in which the Court should ignore the Constitution for the sake of larger objectives.
Had Bickel’s analysis stopped there, his work would have been truly radical. However, like Marshall before him and Roberts after him, he attempted to mitigate the most destabilizing aspects of this claim by appearing to recognize it only in the context of judicial restraint. Bickel endorsed political judging as only a “passive virtue.” He provided an argument for not acting; not a reason for action.
The real drama of Bickel’s book revolves around this effort to combine purity with pragmatism. Its weakness is perfectly captured by Gerald Gunther’s devastating taunt that Bickel insisted on one-hundred-percent devotion to principle twenty percent of the time. As Gunther powerfully demonstrated in his 1964 Columbia Law Review article, it was difficult to see how the Court could maintain either its reputation for or the reality of apolitical neutrality by engaging in conduct that was concededly political.
Bickel left Gunther’s critique unanswered, and for reasons that are completely understandable: an answer would have required admission that if the passive virtues were to serve their intended function, they could do so only by misleading the country. Bickel must have assumed that the Court could maintain its reputation for apolitical, principled adjudication while still acting politically because the country paid more attention to what the Court decided than to what it chose not to decide. After all, for the parties involved in Naim, the Court’s disingenuous avoidance of the merits had precisely the same impact as a decision upholding the statute. If the two results differed at all, the difference lay in how the alternative dispositions were (or would have been) perceived. A decision upholding the Virginia anti-miscegenation statute would be to legitimate naked racism, whereas a “non-decision,” somehow getting rid of the case on unprincipled and unstated grounds, would not. Bickel and the Court were, in effect, betting on Brown creating banner headlines, while Naim slipped unreported through the news sieve.
Bickel’s defense of the Court’s lack of candor inevitably raises questions about his own. Chief Justices Marshall and Roberts used the rhetoric of restraint to advance the cause of judicial power. Did Bickel as well? Perhaps it is true that the Court can better hide its politics when it refuses to decide than when it decides. There may nonetheless be occasions when it can hide its politics well enough even when it decides.
If political necessity is powerful enough, should the Court, on such occasions, abandon its devotion to legal principle when it acts as well as when it fails to act? One thing is certain: If Bickel thought that it should, he would never have told us so. For if, indeed, the Court’s politics must remain secret when they infect its substantive decision making, it would hardly do for the Court’s defenders to spill the beans.
These observations are, of course, speculative, but the speculation is not altogether groundless. Recall that Bickel defended Brown as an example of principled adjudication. So, of course, did all nine Justices of the Supreme Court. Yet we now know from examination of the Justices’ (then) secret conference notes that several of them, including Felix Frankfurter (Bickel’s employer at the time), voted for Brown despite extremely serious reservations about the legal justification for the opinion. Bickel must surely have known about those doubts. Did he share them? If he did, he could hardly have said so publicly. Honesty about the need for dishonesty is, of course, contradictory, but in the context in which Bickel wrote, contradiction was the least of it. With the Supreme Court under attack by bigots and reactionaries, with racial justice on the line, and with the political and moral imperatives as strong as they have been at any time the Court’s history, candor would have amounted to self-indulgent moral cowardice. In the face of all this, could it be that Alexander Bickel was too principled to stand on principle?
Dare we call them heroes?
All of which brings us back to John Marshall and John Roberts. If my interpretation of Bickel is correct, then perhaps both Chief Justices are Bickelian heroes. Both were willing to hide their true goals behind the rhetoric of restraint. Both were deeply principled in their lack of principle in the sense that both were committed to principles that transcend the law and are, by their lights, more important than arid legality.
But are Marshall and Roberts in fact heroes? Once legality and candor are rejected as the criteria for right action, then the measure must instead be based on substantive and controversial moral and political judgments. Because these judgments are controversial – because they are not premised on supposedly trans-substantive legal principles – they cannot be legally justified. I therefore offer my own legally undefended opinion for whatever it is worth. Bickel, if I have him right, sold his legal soul for the sake of racial justice. Marshall and Roberts sold theirs for the protection of an unjust political and economic status quo. That is a very big difference and, in my opinion, the only difference that really matters.

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Respondent brought this class action for injective and declaratory relief against the Illinois officials administering the federal-state programs of Aid to the Aged, Blind, and Disabled (AABD), which are funded equally by the State and Federal Governments, contending that they were violating federal law and denying equal protection of the laws by following state regulations that did not comply with the federal time limits within which participating States had to process and make grants with respect to AABD applications. The District Court by a permanent injunction required compliance with the federal time limits and also ordered the state officials to release and remit AABD benefits wrongfully withheld to all persons found eligible who had applied therefor between July 1, 1968, the date of the federal regulations, and April 16, 1971, the date of the court's preliminary injunction. The Court of Appeals affirmed, rejecting the state officials' contentions that the Eleventh Amendment barred the award of the retroactive benefits and that the judgment of inconsistency between federal regulations and state provisions could be given only prospective effect. Held: The Eleventh Amendment of the Constitution bars that portion of the District Court's decree that ordered retroactive payment of benefits. Pp. 658-678.
(a) A suit by private parties seeking to impose a liability payable from public funds in the state treasury is foreclosed by the Amendment if the State does not consent to suit. Pp. 662-663.
(b) The Court of Appeals erred in holding that Ex parte Young, 209 U.S. 123 , which awarded only prospective relief, did not preclude the retroactive monetary award here on the ground that it was an "equitable restitution," since that award, though on its face directed against the state official individually, as a practical matter could be satisfied only from the general revenues of the State and was indistinguishable from an award of damages against the State. Ford Motor Co. v. Department of Treasury, [415 U.S. 651, 652] 323 U.S. 459 , followed. Shapiro v. Thompson, 394 U.S. 618 ; State Dept. of Health and Rehabilitation Services v. Zarate, 407 U.S. 918 ; Sterrett v. Mothers' & Children's Rights Organization, 409 U.S. 809 ; Wyman v. Bowens, 397 U.S. 49 , disapproved to extent that their holdings do not comport with the holding in the instant case on the Eleventh Amendment issue. Pp. 663-671.
(c) The State of Illinois did not waive its Eleventh Amendment immunity and consent to the bringing of respondent's suit by participating in the federal AABD program. Parden v. Terminal R. Co., 377 U.S. 184 , and Petty v. Tennessee-Missouri Bridge Comm'n, 359 U.S. 275 , distinguished. Nor does the mere fact that a State participates in a program partially funded by the Federal Government manifest consent by the State to be sued in federal courts. Pp. 671-674.
(d) The Court of Appeals properly considered the Eleventh Amendment defense, which the state officials did not assert in the District Court, since that defense partakes of the nature of a jurisdictional bar. Ford Motor Co. v. Department of Treasury, supra. Pp. 677-678.
472 F.2d 985, reversed and remanded.
REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C. J., and STEWART, WHITE, and POWELL, JJ., joined. DOUGLAS, J., post, p. 678, and BRENNAN, J., post, p. 687, filed dissenting opinions. MARSHALL, J., filed a dissenting opinion, in which BLACKMUN, J., joined, post, p. 688.
Robert J. O'Rourke, Deputy Attorney General of Illinois, argued the cause for petitioner. On the briefs were William J. Scott, Attorney General, and Donald S. Carnow, Special Assistant Attorney General.
During the period in which the federal regulations went into effect, Illinois public aid officials were administering the benefits pursuant to their own regulations as provided in the Categorical Assistance Manual of the Illinois Department of Public Aid. 4 Respondent's complaint charged that the Illinois defendants, operating under those regulations, were improperly authorizing grants to commence only with the month in which an application was approved and not including prior eligibility months for which an applicant was entitled to aid under federal law. The complaint also alleged that the Illinois defendants were not processing the applications within the applicable time requirements of the federal regulations; specifically, respondent alleged that his own application [415 U.S. 651, 656] for disability benefits was not acted on by the Illinois Department of Public Aid for almost four months. Such actions of the Illinois officials were alleged to violate federal law and deny the equal protection of the laws. Respondent's prayer requested declaratory and injective relief, and specifically requested "a permanent injunction enjoining the defendants to award to the entire class of plaintiffs all AABD benefits wrongfully withheld."
"The right of the Federal Judiciary to summon a State as defendant and to adjudicate its rights and liabilities had been the subject of deep apprehension and of active debate at the time of the adoption of the Constitution; but the existence of any such right had been disclaimed by many of the most eminent advocates of the new Federal Government, and it was largely owing to their successful dissipation of the fear of the existence of such Federal power that the Constitution was finally adopted." 1 C. Warren, The Supreme Court in United States History 91 (rev. ed. 1937).
Despite such disclaimers, 9 the very first suit entered [415 U.S. 651, 661] in this Court at its February Term in 1791 was brought against the State of Maryland by a firm of Dutch bankers as creditors. Vanstophorst v. Maryland, see 2 Dall. [415 U.S. 651, 662] 401 and Warren, supra, at 91 n. 1. The subsequent year brought the institution of additional suits against other States, and caused considerable alarm and consternation in the country.
"[W]hen the action is in essence one for the recovery of money from the state, the state is the real, substantial party in interest and is entitled to invoke its sovereign immunity from suit even though individual officials are nominal defendants." Id., at 464.
Thus the rule has evolved that a suit by private parties seeking to impose a liability which must be paid from public funds in the state treasury is barred by the Eleventh Amendment. Great Northern Life Insurance Co. v. Read, supra; Kennecott Copper Corp. v. State Tax Comm'n, 327 U.S. 573 (1946).
The Court of Appeals in this case, while recognizing that the Hans line of cases permitted the State to raise the Eleventh Amendment as a defense to suit by its own citizens, nevertheless concluded that the Amendment did not bar the award of retroactive payments of the statutory benefits found to have been wrongfully withheld. The Court of Appeals held that the above-cited cases, when read in light of this Court's landmark decision in Ex parte Young, 209 U.S. 123 (1908), do not preclude [415 U.S. 651, 664] the grant of such a monetary award in the nature of equitable restitution.
"It is not pretended that these payments are to come from the personal resources of these appellants. Appellees expressly contemplate that they will, rather, involve substantial expenditures from the public funds of the state. . . .
"It is one thing to tell the Commissioner of Social Services that he must comply with the federal standards for the future if the state is to have the benefit of federal funds in the programs he administers. It is quite another thing to order the Commissioner to use state funds to make reparation for the past. The latter would appear to us to fall afoul of the Eleventh Amendment if that basic constitutional provision is to be conceived of as having any present force." 467 F.2d, at 236-237 (footnotes omitted).
We do not read Ex parte Young or subsequent holdings of this Court to indicate that any form of relief may be awarded against a state officer, no matter how closely it may in practice resemble a money judgment payable out of the state treasury, so long as the relief may be labeled "equitable" in nature. The Court's opinion in Ex parte Young hewed to no such line. Its citation of Hagood v. Southern, 117 U.S. 52 (1886), and In re Ayers, 123 U.S. 443 (1887), which were both actions [415 U.S. 651, 667] against state officers for specific performance of a contract to which the State was a party, demonstrate that equitable relief may be barred by the Eleventh Amendment.
As in most areas of the law, the difference between the type of relief barred by the Eleventh Amendment and that permitted under Ex parte Young will not in many instances be that between day and night. The injunction issued in Ex parte Young was not totally without effect on the State's revenues, since the state law which the Attorney General was enjoined from enforcing provided substantial monetary penalties against railroads which did not conform to its provisions. Later cases from this Court have authorized equitable relief which has probably had greater impact on state treasuries than did that awarded in Ex parte Young. In Graham v. Richardson, 403 U.S. 365 (1971), Arizona and Pennsylvania welfare officials were prohibited from denying welfare benefits to otherwise qualified recipients who were aliens. In Goldberg v. Kelly, 397 U.S. 254 (1970), New York City welfare officials were enjoined from following New York State procedures which authorized the termination of benefits paid to welfare recipients without prior hearing. 12 But the fiscal consequences to state [415 U.S. 651, 668] treasuries in these cases were the necessary result of compliance with decrees which by their terms were prospective in nature. State officials, in order to shape their official conduct to the mandate of the Court's decrees, would more likely have to spend money from the state treasury than if they had been left free to pursue their previous course of conduct. Such an ancillary effect on the state treasury is a permissible and often an inevitable consequence of the principle announced in Ex parte Young, supra.
But that portion of the District Court's decree which petitioner challenges on Eleventh Amendment grounds goes much further than any of the cases cited. It requires payment of state funds, not as a necessary consequence of compliance in the future with a substantive federal-question determination, but as a form of compensation to those whose applications were processed on the slower time schedule at a time when petitioner was under no court-imposed obligation to conform to a different standard. While the Court of Appeals described this retroactive award of monetary relief as a form of "equitable restitution," it is in practical effect indistinguishable in many aspects from an award of damages against the State. It will to a virtual certainty be paid from state funds, and not from the pockets of the individual state officials who were the defendants in the action. It is measured in terms of a monetary loss resulting from a past breach of a legal duty on the part of the defendant state officials.
Were we to uphold this portion of the District Court's decree, we would be obligated to overrule the Court's holding in Ford Motor Co. v. Department of Treasury, supra. There a taxpayer, who had, under protest, paid taxes to the State of Indiana, sought a refund of those taxes from the Indiana state officials who were charged with their collection. The taxpayer claimed that the tax [415 U.S. 651, 669] had been imposed in violation of the United States Constitution. The term "equitable restitution" would seem even more applicable to the relief sought in that case, since the taxpayer had at one time had the money, and paid it over to the State pursuant to an allegedly unconstitutional tax exaction. Yet this Court had no hesitation in holding that the taxpayer's action was a suit against the State, and barred by the Eleventh Amendment. We reach a similar conclusion with respect to the retroactive portion of the relief awarded by the District Court in this case.
"With respect to appellants' contention that the State of Colorado has not consented to suit in a federal forum even where the plaintiff is the United States, see Monaco v. Mississippi, 292 U.S. 313 (1934), and Ex parte Young, 209 U.S. 123 (1908)." Id., at 358.
Monaco v. Mississippi, 292 U.S. 313 (1934), reaffirmed the principle that the Eleventh Amendment was no bar to a suit by the United States against a State. Id., at 329. In view of Mr. Chief Justice Hughes' vigorous reaffirmation in Monaco of the principles of the Eleventh Amendment and sovereign immunity, we think it unlikely that the Court in Department of Employment v. United States, in citing Ex parte Young as well as Monaco, [415 U.S. 651, 670] intended to foreshadow a departure from the rule to which we adhere today.
Three fairly recent District Court judgments requiring state directors of public aid to make the type of retroactive payment involved here have been summarily affirmed by this Court notwithstanding Eleventh Amendment contentions made by state officers who were appealing from the District Court judgment. 13 Shapiro v. Thompson, 394 U.S. 618 (1969), is the only instance in which the Eleventh Amendment objection to such retroactive relief was actually presented to this Court in a case which was orally argued. The three-judge District Court in that case had ordered the retroactive payment of welfare benefits found by that court to have been unlawfully withheld because of residence requirements held violative of equal protection. 270 F. Supp. 331, 338 n. 5 (Conn. 1967). This Court, while affirming the judgment, did not in its opinion refer to or substantively treat the Eleventh Amendment argument. Nor, of course, did the summary dispositions of the three District Court cases contain any substantive discussion of this or any other issues raised by the parties.
This case, therefore, is the first opportunity the Court has taken to fully explore and treat the Eleventh Amendment [415 U.S. 651, 671] aspects of such relief in a written opinion. Shapiro v. Thompson and these three summary affirmances obviously are of precedential value in support of the contention that the Eleventh Amendment does not bar the relief awarded by the District Court in this case. Equally obviously, they are not of the same precedential value as would be an opinion of this Court treating the question on the merits. Since we deal with a constitutional question, we are less constrained by the principle of stare decisis than we are in other areas of the law. 14 Having now had an opportunity to more fully consider the Eleventh Amendment issue after briefing and argument, we disapprove the Eleventh Amendment holdings of those cases to the extent that they are inconsistent with our holding today.
The Court of Appeals held in the alternative that even if the Eleventh Amendment be deemed a bar to the retroactive relief awarded respondent in this case, the State of Illinois had waived its Eleventh Amendment immunity and consented to the bringing of such a suit by participating in the federal AABD program. The Court of Appeals relied upon our holdings in Parden v. Terminal R. Co., 377 U.S. 184 (1964), and Petty v. Tennessee-Missouri Bridge Comm'n, 359 U.S. 275 (1959), [415 U.S. 651, 672] and on the dissenting opinion of Judge Bright in Employees v. Department of Public Health and Welfare, 452 F.2d 820, 827 (CA8 1971). While the holding in the latter case was ultimately affirmed by this Court in 411 U.S. 279 (1973), we do not think that the answer to the waiver question turns on the distinction between Parden, supra, and Employees, supra. Both Parden and Employees involved a congressional enactment which by its terms authorized suit by designated plaintiffs against a general class of defendants which literally included States or state instrumentalities. Similarly, Petty v. Tennessee-Missouri Bridge Comm'n, supra, involved congressional approval, pursuant to the Compact Clause, of a compact between Tennessee and Missouri, which provided that each compacting State would have the power "to contract, to sue, and be sued in its own name." The question of waiver or consent under the Eleventh Amendment was found in those cases to turn on whether Congress had intended to abrogate the immunity in question, and whether the State by its participation in the program authorized by Congress had in effect consented to the abrogation of that immunity.
"[W]hen we are dealing with the sovereign exemption from judicial interference in the vital field of financial administration a clear declaration of the state's intention to submit its fiscal problems to other courts than those of its own creation must be found."
The mere fact that a State participates in a program through which the Federal Government provides assistance for the operation by the State of a system of public aid is not sufficient to establish consent on the part of the State to be sued in the federal courts. And while this Court has, in cases such as J. I. Case Co. v. Borak, [415 U.S. 651, 674] 377 U.S. 426 (1964), authorized suits by one private party against another in order to effectuate a statutory purpose, it has never done so in the context of the Eleventh Amendment and a state defendant. Since Employees, supra, where Congress had expressly authorized suits against a general class of defendants and the only thing left to implication was whether the described class of defendants included States, was decided adversely to the putative plaintiffs on the waiver question, surely this respondent must also fail on that issue. The only language in the Social Security Act which purported to provide a federal sanction against a State which did not comply with federal requirements for the distribution of federal monies was found in former 42 U.S.C. 1384 (now replaced by substantially similar provisions in 42 U.S.C. 804), which provided for termination of future allocations of federal funds when a participating State failed to conform with federal law. 16 This provision by its terms did not authorize suit against anyone, and standing alone, fell far short of a waiver by a participating State of its Eleventh Amendment immunity.
Our Brother MARSHALL argues in dissent, and the Court of Appeals held, that although the Social Security Act itself does not create a private cause of action, the cause of action created by 42 U.S.C. 1983, coupled with the enactment of the AABD program, and the issuance by HEW of regulations which require the States to make corrective payments after successful "fair hearings" [415 U.S. 651, 675] and provide for federal matching funds to satisfy federal court orders of retroactive payments, indicate that Congress intended a cause of action for public aid recipients such as respondent. 17 It is, of course, true that Rosado v. Wyman, 397 U.S. 397 (1970), held that suits in federal court under 1983 are proper to secure compliance with the provisions of the Social Security Act on the part of participating States. 18 But it has not heretofore [415 U.S. 651, 676] been suggested that 1983 was intended to create a waiver of a State's Eleventh Amendment immunity merely because an action could be brought under that [415 U.S. 651, 677] section against state officers, rather than against the State itself. Though a 1983 action may be instituted by public aid recipients such as respondent, a federal court's remedial power, consistent with the Eleventh Amendment, is necessarily limited to prospective injunctive relief, Ex parte Young, supra, and may not include a retroactive award which requires the payment of funds from the state treasury, Ford Motor Co. v. Department of Treasury, supra.
"[The Attorney General of Indiana] appeared in the federal District Court and the Circuit Court of Appeals and defended the suit on the merits. The objection to petitioner's suit as a violation of the Eleventh Amendment was first made and argued by Indiana in this Court. This was in time, however. The Eleventh Amendment declares a policy and sets forth an explicit limitation on federal judicial power of such compelling force that this Court will consider the issue arising under this Amendment in this case even though urged for the first time in this Court." 323 U.S., at 466 -467.
[ Footnote 1 ] In his complaint in the District Court, respondent claimed that the Illinois Department of Public Aid was not complying with federal regulations in its processing of public aid applications, and also that its refusal to process and allow respondent's claim for a period of four months, while processing and allowing the claims of those similarly situated, violated the Equal Protection Clause of the Fourteenth Amendment. Respondent asserted that the District Court could exercise jurisdiction over the cause by virtue of 28 U.S.C. 1331 and 1343 (3) and (4). Though not briefed by the parties before this Court, we think that under our decision in Hagans v. Lavine, ante, p. 528, the equal protection claim cannot be said to be "wholly insubstantial," and that therefore the District Court was correct in exercising pendent jurisdiction over the statutory claim.
[ Footnote 2 ] Effective January 1, 1974, this AABD program was replaced by a similar program. See 42 U.S.C. 801-805 (1970 ed., Supp. II).
"(ii) 60 days . . . [for aid to disabled]. Under this requirement, the applicant is informed of the agency's time standard in acting on applications, which covers the time from date of application under the State plan to the date that the assistance check, or notification of denial of assistance or change of award, or the eligibility decision with respect to medical assistance, is mailed to the applicant or recipient. . . ."
When originally issued in 1968 the regulations provided that the applications for aid to the aged and blind be processed within 30 days and that aid to the disabled be processed within 45 days of receipt. They also provided that the person determined to be eligible must receive his assistance check within the applicable time period. The amendment to 60 days for aid to the disabled occurred in 1971, as did the change to require mailing instead of receipt of the assistance check within the applicable time period; effective Oct. 15, 1973, the time for processing aged and blind applications became 45 days.
"(6) Entitlement will begin as specified in the State plan, which (i) for financial assistance must be no later than the date of authorization of payment . . . ."
"Except for [disability] cases which have a time standard of 45 days, the time standard for disposition of applications is 30 days from the date of application to the date the applicants are determined eligible and the effective date of their first assistance or are determined ineligible and receive a notice of denial of assistance. . . .
"Initial awards may be new grants, reinstatements, or certain types of resumptions. They can be effective for the month in which Form FO-550 is signed but for no prior period except [under conditions not relevant to this case].
"A new grant is the first grant authorized after an application has been accepted in a case which has not previously received assistance under the same assistance program. It may be authorized for the month in which Form FO-550 is signed but not for any prior period unless it meets [exceptions not relevant to this case]."
"(ii) For those disabled applicants who applied between January 1, 1971 and April 16, 1971, whose first full AABD check was not mailed within sixty days from the date of application, AABD assistance for the period beginning with the sixtieth day from the date of application to the date the applicant's entitlement became effective.
"These AABD benefits shall be mailed to those persons currently receiving AABD within eight months with an explanatory letter, said letter having been first approved by plaintiffs' attorney. Any AABD benefits received pursuant to this paragraph shall not be deemed income or resources under Article III of the Illinois Public Aid Code.
"(a) A certified letter (return receipt requested), said letter having been first approved by plaintiffs' attorney, shall be sent to the last known address of the person, informing him in concise and easily understandable terms that he is entitled to a specified amount of AABD benefits wrongfully withheld, and that he may claim such amount by contacting the County Department of Public Aid at a specified address, within 45 days from the receipt of said letter.
"(b) If the County Department of Public Aid does not receive a claim for the AABD benefits within 45 days from the date of actual notice to the person, the right to said AABD benefits shall be forfeited and the file shall be closed. Persons who do not receive actual notice do not forfeit their rights to AABD benefits wrongfully withheld under this provision."
"Within 15 days from the date of this decree, defendant EDWARD T. WEAVER, Director, Illinois Department of Public Aid, shall submit to the court and the plaintiffs' attorney a detailed statement as to the method for effectuating the relief required by paragraph 5, supra, of this Decree. Any disputes between the parties as to whether the procedures and steps outlined by the [415 U.S. 651, 658] defendant WEAVER will fulfill the requirements of this Decree will be resolved by the Court."
On July 19, 1973, the author of this opinion stayed until further order of this Court these two paragraphs of the District Court's judgment. 414 U.S. 1301 .
[ Footnote 6 ] Respondent appealed from the District Court's judgment insofar as it held him not entitled to receive benefits from the date of his applications (as opposed to the date of authorization of benefits as provided by the federal regulations) and insofar as it failed to award punitive damages. The Court of Appeals upheld the District Court's decision against respondent on those points and they are not at issue here. 472 F.2d 985, 997-999.
[ Footnote 7 ] Citing Chevron Oil Co. v. Huson, 404 U.S. 97 (1971), petitioner also contends in this Court that the Court of Appeals erred in refusing to give the District Court's judgment prospective effect only. Brief for Petitioner 37, incorporating arguments made in Pet. for Cert. 18-22. The Court of Appeals concluded that this ground was "not presented to the district judge before the entry of judgment, so that it comes too late." 472 F.2d, at 995. The Court of Appeals went on, however, to conclude that "[e]ven if the [415 U.S. 651, 659] ground had been timely presented, defendants' contention would be meritless." Ibid. Nothing that one of three tests established by our decision in Huson for determining the retroactivity of court decisions was that "the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied . . . or [have decided] an issue of first impression whose resolution was not clearly fore-shadowed . . .," Chevron Oil Co. v. Huson, supra, at 106, the Court of Appeals found that the petitioner had not satisfied this test, since the "federal time requirements for processing applications and paying eligible AABD applicants were made effective July 1, 1968, and defendants were well aware of these mandatory maximum permissible time standards." 472 F.2d, at 996.
"(8) provide that all individuals wishing to make application for aid or assistance under the plan shall have opportunity to do so, and that such aid or assistance shall be furnished with reasonable promptness to all eligible individuals."
HEW, pursuant to authority granted to it by 42 U.S.C. 1302, has promulgated regulations, see n. 3, supra, which require that decisions be made promptly on applications within 45 days for the aged and blind and within 60 days for the disabled, and that initiation of payments to the eligible be made within the same periods. Petitioner renews in this Court the contention made in the Court of Appeals that these time limitations in the regulations are inconsistent with the statute and therefore an unlawful abuse of the rule-making authority. Brief for Petitioner 37, incorporating arguments made in Pet. for Cert. 22-28. Specifically, petitioner argues [415 U.S. 651, 660] that the "establishment of arbitrary [forty-five] and sixty day maximums in the HEW regulations for determination of eligibility and initiation of payments without taking into consideration the efficient administration of the Act by the State agencies is inconsistent with the `reasonable promptness' requirement and must therefore be declared unlawful . . . ." Pet. for Cert. 23. The Court of Appeals rejected this contention, holding that "these time requirements, binding on state welfare officials, are an appropriate interpretation of the Congressional mandate of `reasonable promptness.'" 472 F.2d, at 996. We agree with the Court of Appeals.
". . . Madison, in the Virginia Convention, answering objections to the ratification of the Constitution, clearly stated his view as to the purpose and effect of the provision conferring jurisdiction over [415 U.S. 651, 661] controversies between States of the Union and foreign States. That purpose was suitably to provide for adjudication in such cases if consent should be given but not otherwise. Madison said: `The next case provides for disputes between a foreign state and one of our states, should such a case ever arise; and between a citizen and a foreign citizen or subject. I do not conceive that any controversy can ever be decided, in these courts, between an American state and a foreign state, without the consent of the parties. If they consent, provision is here made.' 3 Elliot's Debates, 533.
"Marshall, in the same Convention, expressed a similar view. Replying to an objection as to the admissibility of a suit by a foreign state, Marshall said: `He objects, in the next place, to its jurisdiction in controversies between a state and a foreign state. Suppose, says he, in such a suit, a foreign state is cast; will she be bound by the decision? If a foreign state brought a suit against the commonwealth of Virginia, would she not be barred from the claim if the federal judiciary thought it unjust? The previous consent of the parties is necessary; and, as the federal judiciary will decide, each party will acquiesce.' 3 Elliot's Debates, 557.
"Hamilton, in The Federalist, No. 81, made the following emphatic statement of the general principle of immunity: `It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent. This is the general sense and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every State in the Union. Unless, therefore, there is a surrender of this immunity in the plan of the convention, it will remain with the States, and the danger intimated must be merely ideal. The circumstances which are necessary to produce an alienation of State sovereignty were discussed in considering the article of taxation and need not be repeated here. A recurrence to the principles there established will satisfy us that there is no color to pretend that the State governments would by the adoption of that plan be divested of the privilege of paying their own debts in their own way, free from every constraint but that which flows from the obligations of good faith. The contracts between a nation and individuals are only binding on the conscience of the sovereign, and have no pretensions to a compulsive force. They confer no right of action [415 U.S. 651, 662] independent of the sovereign will. To what purpose would it be to authorize suits against States for the debts they owe? How could recoveries be enforced? It is evident it could not be done without waging war against the contracting State; and to ascribe to the federal courts by mere implication, and in destruction of a preexisting right of the State governments, a power which would involve such a consequence would be altogether forced and unwarrantable.'" Monaco v. Mississippi, 292 U.S. 313, 323 -325 (1934) (footnotes omitted).
[ Footnote 10 ] Of the Court of Appeals for the District of Columbia Circuit, sitting by designation on the Court of Appeals for the Second Circuit.
[ Footnote 11 ] It may be true, as stated by our Brother DOUGLAS in dissent, that "[m]ost welfare decisions by federal courts have a financial impact on the States." Post, at 680-681. But we cannot agree that such a financial impact is the same where a federal court applies Ex parte Young to grant prospective declaratory and injunctive relief, as opposed to an order of retroactive payments as was made in the instant case. It is not necessarily true that "[w]hether the decree is prospective only or requires payments for the weeks or months wrongfully skipped over by the state officials, the nature of the impact on the state treasury is precisely the same." Post, at 682. This argument neglects the fact that where the State has a definable allocation to be used in the payment of public aid benefits, and pursues a certain course of action such as the processing of applications within certain time periods as did Illinois here, the subsequent ordering by a federal court of retroactive payments to correct delays in such processing will invariably mean there is less money available for payments for the continuing obligations of the public aid system.
"The second federal policy which might arguably be furthered by retroactive payments is the fundamental goal of congressional welfare legislation - the satisfaction of the ascertained needs of impoverished persons. Federal standards are designed to ensure that those needs are equitably met; and there may perhaps be cases in which the prompt payment of funds wrongfully withheld will serve that end. As time goes by, however, retroactive payments become compensatory rather than remedial; the coincidence between previously ascertained and existing needs becomes less clear."
[ Footnote 12 ] The Court of Appeals considered the Court's decision in Griffin v. School Board, 377 U.S. 218 (1964), to be of like import. But as may be seen from Griffin's citation of Lincoln County v. Luning, 133 U.S. 529 (1890), a county does not occupy the same position as a State for purposes of the Eleventh Amendment. See also Moor v. County of Alameda, 411 U.S. 693 (1973). The fact that the county policies executed by the county officials in Griffin were subject to the commands of the Fourteenth Amendment, but the county was not able to invoke the protection of the Eleventh Amendment, is no more than a recognition of the long-established rule that while county action is generally state action for purposes of the Fourteenth Amendment, a county defendant is not necessarily a state defendant for purposes of the Eleventh Amendment.
[ Footnote 13 ] Brief for Respondent 15-18. Decisions of this Court in which we summarily affirmed a decision of a lower federal court which ordered the payment of retroactive awards and in which the jurisdictional statement filed in this Court raised the Eleventh Amendment defense include: State Dept. of Health and Rehabilitative Services v. Zarate, 407 U.S. 918 (1972), aff'g 347 F. Supp. 1004 (SD Fla. 1971); Sterrett v. Mothers' and Children's Rights Organization, 409 U.S. 809 (1972), aff'g unreported order and judgment of District Court (ND Ind. 1972) on remand from Carpenter v. Sterrett, 405 U.S. 971 (1972); Gaddis v. Wyman, 304 F. Supp. 717 (SDNY 1969) (order at CCH Poverty Law Rep. § 10,506 [1968-1971 Transfer Binder]), aff'd per curiam sub nom. Wyman v. Bowens, 397 U.S. 49 (1970).
[ Footnote 14 ] In the words of Mr. Justice Brandeis: "Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right. . . . This is commonly true even where the error is a matter of serious concern, provided correction can be had by legislation. But in cases involving the Federal Constitution, where correction through legislative action is practically impossible, this Court has often overruled its earlier decisions. The Court bows to the lessons of experience and the force of better reasoning, recognizing that the process of trial and error, so fruitful in the physical sciences, is appropriate also in the judicial function." Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406 -408 (1932) (dissenting opinion) (footnotes omitted).
[ Footnote 15 ] Respondent urges that the traditionally broad power of a federal court sitting as a court of equity to fashion appropriate remedies as are necessary to effect congressional purposes requires that the District Court's award of retroactive benefits be upheld. Respondent places principal reliance on our prior decisions in Porter v. Warner Holding Co., 328 U.S. 395 (1946), and Mitchell v. DeMario Jewelry, 361 U.S. 288 (1960). Both cases dealt with the [415 U.S. 651, 673] power of a federal court to grant equitable relief for violations of federal law; the decision in Mitchell indicated that a federal court could provide equitable relief "complete . . . in light of the statutory purposes." Id., at 292. Since neither of these cases involved a suit against a State or a state official, it did not purport to decide the availability of equitable relief consistent with the Eleventh Amendment.
[ Footnote 16 ] HEW sought passage of a bill in the 91st Congress. H. R. 16311, 407 (a), which would have given it authority to require retroactive payments to eligible persons denied such benefits. The bill failed to pass the House of Representatives. See H. R. 16311, The Family Assistance Act of 1970, Senate Committee on Finance, 91st Cong., 2d Sess., C169-170 (Comm. Print Nov. 5, 1970).
"(2) Payments of assistance made to carry out hearing decisions, or to take corrective action after an appeal but prior to hearing, or to extend the benefit of a hearing decision or court order to others in the same situation as those directly affected by the decision or order. Such payments may be retroactive in accordance with applicable Federal policies on corrective payments.
"(3) Payments of assistance within the scope of Federally aided public assistance programs made in accordance with a court order."
The Court of Appeals felt that 1983, the enactment of the AABD program, and the issuance by HEW of the above regulation, indicated that Congress intended to include within the Social Security Act the remedy of "effective judicial review" and "the remedy of restoration of benefits withheld in violation of federal law." 472 F.2d, at 994-995 and n. 15. But the adoption of regulations by HEW to permit the use of federal funds in the satisfaction of judicial awards is not determinative of the constitutional issues here presented.
"New York is, of course, in no way prohibited from using only state funds according to whatever plan it chooses, providing it violates no provision of the Constitution. It follows, however, from our conclusion that New York's program is incompatible with 402 (a) (23), that petitioners are entitled to declaratory relief and an appropriate injunction by the District Court against the payment of federal monies according to the new schedules, should the State not develop a conforming plan within a reasonable period of time.
"We have considered and rejected the argument that a federal court is without power to review state welfare provisions or prohibit the use of federal funds by the States in view of the fact that Congress has lodged in the Department of HEW the power to cut off federal funds for noncompliance with statutory requirements. We are most reluctant to assume Congress has closed the avenue of effective judicial review to those individuals most directly affected by the administration of its program. . . . We adhere to King v. Smith, 392 U.S. 309 (1968), which implicitly rejected the argument that the statutory provisions for HEW review of plans should be read to curtail judicial relief and held Alabama's `substitute father' regulation to be inconsistent with the federal statute. While King did not advert specifically to the remedial problem, the unarticulated premise was that the State had alternative choices of assuming the additional cost of paying benefits to families with substitute fathers or not using federal funds to pay welfare benefits according to a plan that was inconsistent with federal requirements." Id., at 420-421.
Respondent urges that this language is "tantamount to a finding that Congress conditioned the participation of a state in the categorical assistance program on the forfeiture of immunity from suit in a federal forum . . . irrespective of the relief sought, [since] the intent of Congress remains constant." Brief for Respondent 42-43. Petitioner contends that this language, coupled with the fact that the Court in Rosado remanded the case to the District [415 U.S. 651, 677] Court to "afford New York an opportunity to revise its program . . . or, should New York choose [not to revise its program], issue its order restraining the further use of federal monies pursuant to the present statute," 397 U.S., at 421 -422, indicates that the Court felt that retroactive relief was not a permissible remedy. Brief for Petitioner 17-20. We do not regard Rosado as controlling either way since the Court was not faced with a district court judgment ordering retroactive payments or with a challenge based on the Eleventh Amendment.
[ Footnote 19 ] Respondent urges that the State of Illinois has abolished its common-law sovereign immunity in its state courts, and appears to argue that suit in a federal court against the State may thus be maintained. Brief for Respondent 23. Petitioner contends that sovereign immunity has not been abolished in Illinois as to this type of case. Brief for Petitioner 31-36. Whether Illinois permits such a suit to be brought against the State in its own courts is not determinative of whether Illinois has relinquished its Eleventh Amendment immunity from suit in the federal courts. Chandler v. Dix, 194 U.S. 590, 591 -592 (1904).
"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution [415 U.S. 651, 679] and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."
Once the federal court had jurisdiction over the case, the fact that it ruled adversely to the claimant on the constitutional claim did not deprive it of its pendent jurisdiction over the statutory claim. United States v. Georgia Pub. Serv. Comm'n, 371 U.S. 285, 287 -288.
In Ex parte Young, 209 U.S. 123 , a suit by stockholders of a railroad was brought in a federal court against state officials to enjoin the imposition of confiscatory rates on the railroad in violation of the Fourteenth Amendment. The Eleventh Amendment was interposed as a defense. The Court rejected the defense, saying that state officials with authority to enforce state laws "who threaten and are about to commence proceedings, either of a civil or criminal nature, to enforce against parties affected an unconstitutional act, violating the Federal Constitution, may be enjoined by a Federal court of equity from such action." Id., at 156. The Court went on to say that a state official seeking to enforce in the name of a State an unconstitutional act "comes into conflict with the superior authority of that Constitution, and he is in that case stripped of his official or representative character and is subjected in his person to the consequence of his individual conduct. The State has no power to impart to him any immunity from responsibility to the supreme authority of the United States." Id., at 159-160.
As the complaint in the instant case alleges violations by officials of Illinois of the Equal Protection Clause of the Fourteenth Amendment, it seems that the case is governed by Ex parte Young so far as injective relief is concerned. The main thrust of the argument is that the instant case asks for relief which if granted would affect the treasury of the State.
Most welfare decisions by federal courts have a financial [415 U.S. 651, 681] impact on the States. Under the existing federal-state cooperative system, a state desiring to participate, submits a "state plan" to HEW for approval; once HEW approves the plan the State is locked into the cooperative scheme until it withdraws, 3 all as described in King v. Smith, 392 U.S. 309, 316 et seq. The welfare cases coming here have involved ultimately the financial responsibility of the State to beneficiaries claiming they were deprived of federal rights. King v. Smith required payment to children even though their mother was co-habitating with a man who could not pass muster as a [415 U.S. 651, 682] "parent." Rosado v. Wyman, 397 U.S. 397 , held that under this state-federal cooperative program a State could not reduce its standard of need in conflict with the federal standard. It is true that Rosado did not involve retroactive payments as are involved here. But the distinction is not relevant or material because the result in every welfare case coming here is to increase or reduce the financial responsibility of the participating State. In no case when the responsibility of the State is increased to meet the lawful demand of the beneficiary, is there any levy on state funds. Whether the decree is prospective only or requires payments for the weeks or months wrongfully skipped over by the state officials, the nature of the impact on the state treasury is precisely the same.
"[T]his court would note that if defendants' position regarding the jurisdictional bar of the Eleventh Amendment is correct, a great number of federal district court judgments are void, and the Supreme Court has affirmed many of these void judgments."
What is asked by the instant case is minor compared to the relief granted in Griffin v. School Board, 377 U.S. 218 . In that case we authorized entry of an order putting an end to a segregated school system. We held, inter alia, that "the District Court may, if necessary to prevent further racial discrimination, require the Supervisors to [415 U.S. 651, 684] exercise the power that is theirs to levy taxes to raise funds adequate to reopen, operate, and maintain without racial discrimination a public school system in Prince Edward County like that operated in other counties in Virginia." Id., at 233. We so held against vigorous contentions of the state officials that the Eleventh Amendment protected the State; and in reply we cited Lincoln County v. Luning, 133 U.S. 529 , and Kennecott Copper Corp. v. State Tax Comm'n, 327 U.S. 573, 579 , to support the proposition that "actions against a county can be maintained in United States courts in order to vindicate federally guaranteed rights." 377 U.S., at 233 .
Griffin is sought to be distinguished on the ground that a "county" is not the "state" for purposes of the Eleventh Amendment. But constitutionally the county in Griffin was exercising state policy as are the counties here, because otherwise the claim of denial of equal protection would be of no avail.
Counties are citizens of their State for purposes of diversity of citizenship. Bullard v. City of Cisco, 290 U.S. 179 ; Moor v. County of Alameda, 411 U.S. 693, 718 -719. And they are not States for purposes of 28 U.S.C. 1251 (a) which gives this Court original and exclusive jurisdiction of: "(1) All controversies between two or more states. . . ." Illinois v. City of Milwaukee, 406 U.S. 91, 98 . But, being citizens of their State, suits against them by another State are in our original but not exclusive jurisdiction under 28 U.S.C. 1251 (b) (3). Ibid. Yet, as agencies of the State whether in carrying out educational policies or otherwise, they are the State, as Griffin held, for purposes of the Fourteenth Amendment. And Griffin, like the present case, dealt only with liability to citizens for state policy and state action.
"Our conclusion is simply that Alabama, when it began operation of an interstate railroad approximately 20 years after enactment of the FELA, necessarily consented to such suit as was authorized by that Act," id., at 192.
"Our conclusion that this suit may be maintained is in accord with the common sense of this Nation's federalism. A State's immunity from suit by an individual without its consent has been fully recognized by the Eleventh Amendment and by subsequent decisions of this Court. But when a State leaves the sphere that is exclusively its own and enters into activities subject to congressional regulation, it subjects itself to that regulation as fully as if it were a private person or corporation." Id., at 196.
As the Court of Appeals in the instant case concluded, Illinois by entering into the joint federal-state welfare plan just as surely "[left] the sphere that is exclusively its own." Ibid.
It is argued that participation in the program of federal financial assistance is not sufficient to establish consent on the part of the State to be sued in federal courts. But it is not merely participation which supports a finding of Eleventh Amendment waiver, but [415 U.S. 651, 687] participation in light of the existing state of the law as exhibited in such decisions as Shapiro v. Thompson, 394 U.S. 618 , which affirmed judgments ordering retroactive payment of benefits. Today's holding that the Eleventh Amendment forbids court-ordered retroactive payments, as the Court recognizes, necessitates an express overruling of several of our recent decisions. But it was against the background of those decisions that Illinois continued its participation in the federal program, and it can hardly be claimed that such participation was in ignorance of the possibility of court-ordered retroactive payments. The decision to participate against that background of precedent can only be viewed as a waiver of immunity from such judgments.
[ Footnote 1 ] Effective January 1, 1974, this AABD program was replaced by a similar program. See 42 U.S.C. 801-805 (1970 ed., Supp. II). The program in Illinois is administered by the Department of Public Aid. Ill. Rev. Stat., c. 23, 3-1 to 3-12 (1973). The former program was funded in part by the State and in part by the Federal Government. 42 U.S.C. 303, 304, 306, 1201-1204, 1206, 1351-1355, 1381-1385.
[ Footnote 2 ] The Eleventh Amendment provides: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State."
As the Court, speaking through MR. JUSTICE BRENNAN, said in Parden v. Terminal R. Co., 377 U.S. 184, 186 : "Although the Eleventh Amendment is not in terms applicable here, since petitioners are citizens of Alabama, this Court has recognized that an unconsenting State is immune from federal-court suits brought by its own citizens as well as by citizens of another State. Hans v. Louisiana, 134 U.S. 1 ; Duhne v. New Jersey, 251 U.S. 311 ; Great Northern Life Ins. Co. v. Read, 322 U.S. 47, 51 ; [415 U.S. 651, 680] Fitts v. McGhee, 172 U.S. 516, 524 . See also Monaco v. Mississippi. 292 U.S. 313 ."
"A State plan for aid to the aged, blind, or disabled, or for aid to the aged, blind, or disabled and medical assistance for the aged, must . . . .
"(13) include reasonable standards, consistent with the objectives of this subchapter, for determining eligibility for and the extent of aid or assistance under the plan."
Nearly identical provisions are now found in 42 U.S.C. 802 (a) (1970 ed., Supp. II).
The Secretary of HEW issued mandatory federal time standard regulations. Handbook, Public Assistance Administration, pt. IV, 2200 (b) (3), 2300 (b) (5); 45 CFR 206.10 (a) (3). Illinois adopted a 30-day standard for aged and blind applicants (Ill. Categ. Assistance Manual 4004.1) as contrasted to HEW's 60-day period, 2200, supra. It is that conflict which exposes the merits of the controversy.
[ Footnote 4 ] The lower court's opinion is found in 347 F. Supp. 1004.
"Whether a federal court is precluded by the Eleventh Amendment to the United States Constitution from ordering a state agency to pay money from the state treasury and from further ordering the state agency to perform certain specified acts which would otherwise be in the discretion of the agency."
[ Footnote 6 ] The lower court's opinion is found in 304 F. Supp. 717. Retroactive payments were challenged in question 2 of the jurisdictional statement.
[ Footnote 7 ] The lower court's opinion is found in 270 F. Supp. 331.
[ Footnote 8 ] Id., at 338 n. 5. The award of money damages was alleged to be a violation of the Eleventh Amendment in Part V of the jurisdictional statement.
[ Footnote 9 ] The jurisdictional statement in the Sterrett case explicitly urged that the decree below violated the Eleventh Amendment since it would expend itself on the public treasury - the second question in the jurisdictional statement.
[ Footnote 10 ] We settled in Rosado v. Wyman, 397 U.S. 397 , the question whether the grant of authority under the Social Security Act to HEW to cut off federal funds for noncompliance with statutory requirements provides the exclusive procedure and remedy for violations of the Act. We said: "We are most reluctant to assume Congress has closed the avenue of effective judicial review to those individuals most directly affected by the administration of its program." Id., at 420.
This suit is brought by Illinois citizens against Illinois officials. In that circumstance, Illinois may not invoke the Eleventh Amendment, since that Amendment bars only federal court suits against States by citizens of other States. Rather, the question is whether Illinois may avail itself of the nonconstitutional but ancient doctrine of sovereign immunity as a bar to respondent's claim for retroactive AABD payments. In my view Illinois may not assert sovereign immunity for the reason I expressed in dissent in Employees v. Department of Public Health and Welfare, 411 U.S. 279, 298 (1973): the States surrendered that immunity in Hamilton's words, "in the plan of the Convention," that formed the Union, at least insofar as the States granted Congress specifically enumerated powers. See id., at 319 n. 7; Parden v. Terminal R. Co., 377 U.S. 184 (1964). Congressional authority to enact the Social Security Act, of which AABD is a part, former 42 U.S.C. 1381-1385 [415 U.S. 651, 688] (now replaced by similar provisions in 42 U.S.C. 801-804 (1970 ed., Supp. II)), is to be found in Art. I, 8, cl. 1, one of the enumerated powers granted Congress by the States in the Constitution. I remain of the opinion that "because of its surrender, no immunity exists that can be the subject of a congressional declaration or a voluntary waiver," 411 U.S., at 300 , and thus have no occasion to inquire whether or not Congress authorized an action for AABD retroactive benefits, or whether or not Illinois voluntarily waived the immunity by its continued participation in the program against the background of precedents which sustained judgments ordering retroactive payments.
"States are not required to participate in the program, but those which desire to take advantage of the substantial federal funds available for distribution to needy children [or needy aged, blind or disabled] are required to submit an AFDC [or AABD] plan for the approval of the Secretary of Health, Education, and Welfare (HEW). The plan must conform with several requirements of the Social Security Act and with rules and regulations promulgated by HEW."
So here, Illinois elected to participate in the AABD program, and received and expended substantial federal funds in the years at issue. It thereby obligated itself to comply with federal law, including the requirement [415 U.S. 651, 690] of former 42 U.S.C. 1382 (a) (8) that "such aid or assistance shall be furnished with reasonable promptness to all eligible individuals." In Townsend v. Swank, 404 U.S. 282, 286 (1971), we held that participating States must strictly comply with the requirement that aid be furnished "to all eligible individuals," and that the States have no power to impose additional eligibility requirements which exclude persons eligible for assistance under federal standards. Today's decision, ante, at 659-660, n. 8. properly emphasizes that participating States must also comply strictly with the "reasonable promptness" requirement and the more detailed regulations adding content to it.
But a cause of action is clearly provided by 42 U.S.C. 1983, which in terms authorizes suits to redress deprivations of rights secured by the "laws" of the United States. And we have already rejected the argument that Congress intended the funding cutoff to be the sole remedy for noncompliance with federal requirements. In Rosado v. Wyman, 397 U.S. 397, 420 -423 (1970), we held that suits in federal court under 1983 were proper to enforce the provisions of the Social Security Act against participating States. Mr. Justice Harlan, writing for the Court, examined [415 U.S. 651, 691] the legislative history and found "not the slightest indication" that Congress intended to prohibit suits in federal court to enforce compliance with federal standards. Id., at 422.
I believe that Congress also intended the full panoply of traditional judicial remedies to be available to the federal courts in these 1983 suits. There is surely no indication of any congressional intent to restrict the courts' equitable jurisdiction. Yet the Court has held that "[u]nless a statute in so many words, or by a necessary and inescapable inference, restricts the court's jurisdiction in equity, the full scope of that jurisdiction is to be recognized and applied." Porter v. Warner Holding Co., 328 U.S. 395, 398 (1946). "When Congress entrusts to an equity court the enforcement of prohibitions contained in a regulatory enactment, it must be taken to have acted cognizant of the historic power of equity to provide complete relief in light of the statutory purposes." Mitchell v. DeMario Jewelry, 361 U.S. 288, 291 -292 (1960).
In particular, I am firmly convinced that Congress intended the restitution of wrongfully withheld assistance payments to be a remedy available to the federal courts in these suits. Benefits under the categorical assistance programs "are a matter of statutory entitlement for persons qualified to receive them." Goldberg v. Kelly, 397 U.S. 254, 262 (1970). Retroactive payment of benefits secures for recipients this entitlement which was withheld in violation of federal law. Equally important, the courts' power to order retroactive payments is an essential remedy to insure future state compliance with federal requirements. See Porter v. Warner Holding Co., supra, at 400. No other remedy can effectively deter States from the strong temptation to cut [415 U.S. 651, 692] welfare budgets by circumventing the stringent requirements of federal law. The funding cutoff is a drastic sanction, one which HEW has proved unwilling or unable to employ to compel strict compliance with the Act and regulations. See Rosado v. Wyman, supra, at 426 (DOUGLAS, J., concurring). Moreover, the cutoff operates only prospectively; it in no way deters the States from even a flagrant violation of the Act's requirements for as long as HEW does not discover the violation and threaten to take such action.
Absent any remedy which may act with retroactive effect, state welfare officials have everything to gain and nothing to lose by failing to comply with the congressional mandate that assistance be paid with reasonable promptness to all eligible individuals. This is not idle speculation without basis in practical experience. In this very case, for example, Illinois officials have knowingly violated since 1968 federal regulations on the strength of an argument as to its invalidity which even the majority deems unworthy of discussion. Ante, at 659-660, n. 8. Without a retroactive-payment remedy, we are indeed faced with "the specter of a state, perhaps calculatingly, defying federal law and thereby depriving welfare recipients of the financial assistance Congress thought it was giving them." Jordan v. Weaver, 472 F.2d 985, 995 (CA7 1972). Like the Court of Appeals, I cannot believe that Congress could possibly have intended any such result.
Such indicia of congressional intent as can be gleaned from the statute confirm that Congress intended to authorize retroactive payment of assistance benefits unlawfully withheld. Availability of such payments is implicit in the "fair hearing" requirement, former 42 U.S.C. 1382 (a) (4), which permitted welfare recipients to challenge the denial of assistance. The regulations [415 U.S. 651, 693] which require States to make corrective payments retro-actively in the event of a successful fair hearing challenge, 45 CFR 205.10 (a) (18), merely confirm the obvious statutory intent. HEW regulations also authorize federal matching funds for retroactive assistance payments made pursuant to court order, 45 CFR 205.10 (b) (2), (b) (3). We should not lightly disregard this explicit recognition by the agency charged with administration of the statute that such a remedy was authorized by Congress. See Griggs v. Duke Power Co., 401 U.S. 424, 433 -434 (1971).
Illinois chose to participate in the AABD program with its eyes wide open. Drawn by the lure of federal funds, it voluntarily obligated itself to comply with the Social Security Act and HEW regulations, with full knowledge that Congress had authorized assistance recipients to go into federal court to enforce these obligations and to recover benefits wrongfully denied. Any doubts on this score must surely have been removed by our decisions in Rosado v. Wyman, supra, and Shapiro v. Thompson, 394 U.S. 618 (1969), where we affirmed a district court retroactive payment order. I cannot avoid the conclusion that, by virtue of its knowing and voluntary decision to nevertheless participate in the program, the State necessarily consented to subject itself to these suits. I have no quarrel with the Court's view that waiver of constitutional rights should not lightly be inferred. But I simply cannot believe that the State could have entered into this essentially contractual agreement with the Federal Government without recognizing that it was subjecting itself to the full scope of the 1983 remedy provided by Congress to enforce the terms of the agreement.
Of course, 1983 suits are nominally brought against state officers, rather than the State itself, and do not [415 U.S. 651, 694] ordinarily raise Eleventh Amendment problems in view of this Court's decision in Ex parte Young, 209 U.S. 123 (1908). But to the extent that the relief authorized by Congress in an action under 1983 may be open to Eleventh Amendment objections, 2 these objections are waived when the State agrees to comply with federal requirements enforceable in such an action. I do not find persuasive the Court's reliance in this case on the fact that "congressional authorization to sue a class of defendants which literally includes States" is absent. Ante, at 672. While true, this fact is irrelevant here, for this is simply not a case "literally" against the State. While the Court successfully knocks down the strawman it has thus set up, it never comes to grips with the undeniable fact that Congress has "literally" authorized this suit within the terms of 1983. Since there is every reason to believe that Congress intended the full panoply of judicial remedies to be available in 1983 equitable actions to enforce the Social Security Act, I think the conclusion is inescapable that Congress authorized and the State consented to 1983 actions in which the relief might otherwise be questioned on Eleventh Amendment grounds.
My conclusion that the State has waived its Eleventh Amendment objections to court-ordered retroactive assistance payments is fully consistent with last Term's [415 U.S. 651, 695] decision in Employees v. Department of Public Health and Welfare, 411 U.S. 279 (1973). As I emphasized in my concurring opinion, there was no voluntary action by the State in Employees which could reasonably be construed as evidencing its consent to suit in a federal forum.
"[T]he State was fully engaged in the operation of the affected hospitals and schools at the time of the 1966 amendments. To suggest that the State had the choice of either ceasing operation of these vital public services or `consenting' to federal suit suffices, I believe, to demonstrate that the State had no true choice at all and thereby that the State did not voluntarily consent to the exercise of federal jurisdiction . . . ." Id., at 296.
A finding of waiver here is also consistent with the reasoning of the majority in Employees, which relied on a distinction between "governmental" and "proprietary" functions of state government. Id., at 284-285. This distinction apparently recognizes that if sovereign immunity is to be at all meaningful, the Court must be reluctant to hold a State to have waived its immunity simply by acting in its sovereign capacity - i. e., by merely performing its "governmental" functions. On the other hand, in launching a profitmaking enterprise, "a State leaves the sphere that is exclusively its own," Parden v. Terminal R. Co., 377 U.S., at 196 , and a voluntary waiver of sovereign immunity can more easily be found. While conducting an assistance program for the needy is surely a "governmental" function, the State here has done far more than operate its own program in its sovereign capacity. It has voluntarily subordinated its sovereignty in this matter to that of the Federal Government, and agreed to comply with the conditions imposed [415 U.S. 651, 696] by Congress upon the expenditure of federal funds. In entering this federal-state cooperative program, the State again "leaves the sphere that is exclusively its own," and similarly may more readily be found to have voluntarily waived its immunity.
Indeed, this is the lesson to be drawn from this Court's decision in Petty v. Tennessee-Missouri Bridge Comm'n, 359 U.S. 275 (1959), where the Court found that the States had waived the sovereign immunity of the Commission by joining in an interstate compact subject to the approval of Congress. The Court in Petty emphasized that it was "called on to interpret not unilateral state action but the terms of a consensual agreement" between the States and Congress, id., at 279, and held that the States who join such a consensual agreement, "by accepting it and acting under it assume the conditions that Congress under the Constitution attached." Id., at 281-282. Although the congressional intent regarding the sue-and-be-sued clause was by no means certain, the Court held that the surrounding conditions made it clear that the States accepting it waived their sovereign immunity, id., at 280, especially since this interpretation was necessary to keep the compact "a living interstate agreement which performs high functions in our federalism." Id., at 279.
I find the approach in Petty controlling here. As even the dissent in that case recognized, id., at 285 (Frankfurter, J., dissenting), Congress undoubtedly has the power to insist upon a waiver of sovereign immunity as a condition of its consent to such a federal-state agreement. Since I am satisfied that Congress has in fact done so here, at least to the extent that the federal courts may do "complete rather than truncated justice," Porter v. Warner Holding Co., 328 U.S., at 398 , in 1983 actions authorized by Congress against state welfare authorities, I respectfully dissent.
[ Footnote 1 ] In view of my conclusion on this issue, I find it unnecessary to consider whether the Court correctly treats this suit as one against the State, rather than as a suit against a state officer permissible under the rationale of Ex parte Young, 209 U.S. 123 (1908).