BRENNAN, J., concurring

437 U.S.

Congress to join a State as defendant. The Civil Rights Act of 1871, 42 U. S. C. § 1983, had been held in Monroe v. Pape, 365 U. S. 167, 187-191 (1961), to exclude cities and other municipal corporations from its ambit; that being the case, it could not have been intended to include States as parties defendant." 427 U. S., at 452.

But time has not stood still. Two Terms ago, we decided Fitzpatrick v. Bitzer, which for the first time in the recent history of the Court asked us to decide "the question of the relationship between the Eleventh Amendment and the enforcement power granted to Congress under § 5 of the Fourteenth Amendment." Id., at 456. There we concluded that "the Eleventh Amendment, and the principle of state sovereignty which it embodies,

the enforcement provisions of § 5 ment." Ibid. (Citation omitted.)

are necessarily limited by of the Fourteenth AmendAnd we went on to hold:

"Congress may, in determining what is 'appropriate legislation' for the purpose of enforcing the provisions of the Fourteenth Amendment, provide for private suits against States or state officials which are constitutionally impermissible in other contexts." Ibid.

Then, in Monell v. New York City Dept. of Social Services, supra, decided only weeks ago, we held that the Congress which passed the Civil Rights Act of 1871, now § 1983 a statute enacted pursuant to §5 of the Fourteenth Amendment, see 436 U. S., at 665—“did intend municipalities and other local government units to be included among those persons to whom § 1983 applies." Id., at 690. This holding alone would appear to be enough to vitiate the vitality of Fitzpatrick's explanation of Edelman.2

1 As Fitzpatrick noted, this issue had been before the Court in Ex parte Virginia, 100 U. S. 339 (1880).

2 It can also be questioned whether, had Congress meant to exempt municipalities from liability under § 1983, it would necessarily follow that

678

BRENNAN, J., concurring

Moreover, central to the holding in Monell was the conclusion that the Act of Feb. 25, 1871, ch. 71, § 2, 16 Stat. 431, provided a definition of the word "person" used to describe the class of defendants in § 1983 suits. 436 U. S., at 688. Although we did not in Monell have to consider whether § 1983 as properly construed makes States liable in damages for their constitutional violations, the conclusion seems inescapable that, at the very least, § 1983 includes among possible defendants "a class . . . which literally includes States." Edelman v. Jordan, 415 U. S., at 672. This follows immediately from the language of the Act of Feb. 25, 1871:

"[I]n all acts hereafter passed... the word 'person' may extend and be applied to bodies politic and corporate . . unless the context shows that such words were intended to be used in a more limited sense

The phrase "bodies politic and corporate" is now, and certainly would have been in 1871, a synonym for the word "State." See, e. g., United States v. Maurice, 26 F. Cas. 1211, 1216 (No. 15,747) (CC Va. 1823) (Marshall, C. J.) ("The United States is a government and, consequently, a body politic and corporate"). See also Pfizer Inc. v. Government of India, 434 U. S. 308 (1978).

Given our holding in Monell, the essential premise of our Edelman holding-that no statute involved in Edelman authorized suit against "a class of defendants which literally includes States," 415 U. S., at 672-would clearly appear to be no longer true. Moreover, given Fitzpatrick's holding that Congress has plenary power to make States liable in damages when it acts pursuant to § 5 of the Fourteenth Amendment, it is surely at least an open question whether § 1983 properly construed does not make the States liable for relief of all kinds, notwithstanding the Eleventh Amendment. Whether this is

Congress also meant to exempt States. See Monell v. New York City Dept. of Social Services, 436 U. S. 658, 673-674, n. 30 (1978).

in fact so, must of course await consideration in an appropriate case.3

MR. JUSTICE POWELL, with whom THE CHIEF JUSTICE joins, concurring in part and dissenting in part.*

While I join Parts I and II-A of the Court's opinion, I cannot subscribe to Part II-B's reading of the Eleventh Amendment as permitting counsel-fee awards against the State on the authority of a statute that concededly does not effect "an express statutory waiver of the States' immunity." Ante, at 698.

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

As I understand MR. JUSTICE POWELL'S objection to the Court's opinion, it rests squarely on the proposition that a clear statement to make States liable for damages cannot be found in legislative history but only on the face of a statute. See post, at 705-706. In § 1983 and the Act of Feb. 25, 1871, we have a statute that on its face applies to state defendants, but now MR. JUSTICE POWELL tells us that this is not enough because there is still an absence of "congressional purpose in 1871 to abrogate the protections of the Eleventh Amendment." Post, at 709 n. 6. I suppose that this means either that no statute can meet the Eleventh Amendment clear-statement test or, alternatively, that MR. JUSTICE POWELL has some undisclosed rule as to when legislative history may be taken into account that works only to defeat state liability.

*MR. JUSTICE WHITE and MR. JUSTICE REHNQUIST join this opinion to the extent it dissents from the opinion and judgment of the Court.

1 The principles emphasized by MR. JUSTICE REHNQUIST, post, at 711, as to the limitation of equitable remedies are settled. See Dayton Board of Education v. Brinkman, 433 U. S. 406 (1977); Milliken v. Bradley, 433 U. S. 267 (1977). On the extraordinary facts of this case, however, I agree with the Court that the 30-day limitation on punitive isolation was within the bounds of the District Court's discretion in fashioning appropriate relief. It also is evident from the Court's opinion, see ante, at 688, that this limitation will have only a minimal effect on prison administration, an area of responsibility primarily reserved to the States.

678

Opinion of PoWELL, J.

2

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." 415 U. S., at 677 (citations omitted). There is no indication in the language of the Civil Rights Attorney's Fees Awards Act of 1976 (Act), Pub. L. No. 94-559, 90 Stat. 2641, 42 U. S. C. § 1988 (1976 ed.), that Congress sought to overrule that holding. In this case, as in Edelman, "the threshold fact of congressional authorization to sue a class of defendants which literally includes States is wholly absent." 415 U. S., at 672 (emphasis supplied). 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. Ante, at 694. That evidence might provide persuasive support for a finding of "waiver" if this case involved "a congressional enactment which by its terms authorized suit by designated plaintiffs against a general class of defendants which literally included

2 In Monell v. New York City Dept. of Social Services, 436 U. S. 658 (1978), the Court held that "the legislative history of the Civil Rights Act of 1871 compels the conclusion that Congress did intend municipalities and other local government units to be included among those persons to whom § 1983 applies." Id., at 690. We noted, however, that there was no "basis for concluding that the Eleventh Amendment is a bar to municipal liability," and that our holding was "limited to local government units which are not considered part of the State for Eleventh Amendment purposes." Id., at 690, and n. 54 (emphasis in original).

Opinion of POWELL, J.

437 U.S.

States or state instrumentalities." Edelman, supra, at 672. Compare Fitzpatrick v. Bitzer, 427 U. S. 445, 452 (1976), with Employees, supra, at 283, 284-285. But in this sensitive area of conflicting interests of constitutional dimension, we should not permit items of legislative history to substitute for explicit statutory language. The Court should be "hesitant to presume general congressional awareness," SEC v. Sloan, 436 U. S. 103, 121 (1978), of Eleventh Amendment consequences of a statute that does not make express provision for monetary recovery against the States.*

3 Although Fitzpatrick states that the "prerequisite" of "congressional authorization . . . to sue the State as employer" was found "wanting in Employees," 427 U. S., at 452, this reference is to the Court's conclusion in Employees that notwithstanding the literal inclusion of the States as statutory employers, in certain contexts, there was "not a word in the history of the [statute] to indicate a purpose of Congress to make it possible for a citizen of that State or another State to sue the State in the federal courts." 411 U. S., at 285. See Edelman, 415 U. S., at 672.

While it has been suggested that "[t]he legislative changes that made state governments liable under Title VII closely paralleled the changes that made state governments liable under the Fair Labor Standards Act," Baker, Federalism and the Eleventh Amendment, 48 U. Colo. L. Rev. 139, 171 n. 152 (1977), comparing Fitzpatrick, 427 U. S., at 449 n. 2, with Employees, 411 U. S., at 282-283, the statute considered in Fitzpatrick made explicit reference to the availability of a private action against state and local governments in the event the Equal Employment Opportunity Commission or the Attorney General failed to bring suit or effect a conciliation agreement. Equal Opportunity Employment Act of 1972, 86 Stat. 104, 42 U. S. C. § 2000e-5 (f) (1) (1970 ed., Supp. V); see H. R. Rep. No. 92-238, pp. 17-19 (1971); S. Rep. No. 92-415, pp. 9-11 (1971); S. Conf. Rep. No. 92-681, pp. 17-18 (1972); H. R. Conf. Rep. No. 92-899, pp. 17-18 (1972).

4 "By making a law unenforceable against the states unless a contrary intent were apparent in the language of the statute, the clear statement rule. . . ensure[s] that attempts to limit state power [are] unmistakable, thereby structuring the legislative process to allow the centrifugal forces in Congress the greatest opportunity to protect the states' interests." Tribe, Intergovernmental Immunities in Litigation, Taxation, and Regu