678 REHNQUIST, J., dissenting the possibility of individual liability in damages of a state official where the State itself could not be held liable is as old as Ex parte Young, 209 U. S. 123 (1908), and has been repeatedly reaffirmed by decisions of this Court. Great Northern Life Insurance Co. v. Read, 322 U. S. 47 (1944); Ford Motor Co. v. Department of Treasury, 323 U. S. 459 (1945); Edelman v. Jordan, supra. Since the Court evidences no disagreement with this line of cases, its assertion of "unfairness" is not only doubtful in fact but also irrelevant as a matter of law. Likewise, the Court's fear that imposition of liability would inhibit state officials in the fearless exercise of their duties may be remedied, if deemed desirable, by legislation in each of the various States similar to that which Arkansas has already enacted. B For the reasons stated in the dissenting portion of my Brother POWELL'S opinion, which I join, I do not agree that the Civil Rights Attorney's Fees Awards Act of 1976 can be considered a valid congressional abrogation of the State's Eleventh Amendment immunity. I have in addition serious reservations about the lack of any analysis accompanying the Court's transposition of the holding of Fitzpatrick v. Bitzer, 427 U. S. 445 (1976), to this case. In Fitzpatrick, we held that under § 5 of the Fourteenth Amendment Congress could explicitly allow for recovery against state agencies without violating the Eleventh Amendment. But in Fitzpatrick, supra, there was conceded to be a violation of the Equal Protection Clause which is contained in haec verba in the language of the Fourteenth Amendment itself. In this case the claimed constitutional violation is the infliction of cruel and unusual punishment, which is expressly prohibited by the Eighth but not by the Fourteenth Amendment. While the Court has held that the Fourteenth Amendment "incorporates" the prohibition against cruel and unusual punishment, it is not at all clear to me that it follows that Congress has the same enforcement power REHNQUIST, J., dissenting 437 U.S. under § 5 with respect to a constitutional provision which has merely been judicially "incorporated" into the Fourteenth Amendment that it has with respect to a provision which was placed in that Amendment by the drafters. I would therefore reverse the judgment of the Court of Appeals in its entirety. REPORTER'S NOTE The next page is purposely numbered 901. The numbers between 718 and 901 were intentionally omitted, in order to make it possible to publish the orders with permanent page numbers, thus making the official citations available upon publication of the preliminary prints of the United States Reports. ORDERS FROM JUNE 14 THROUGH JUNE 19, 1978 JUNE 14, 1978 Dismissal Under Rule 60 No. 77-6373. EATON v. UNITED STATES. C. A. 5th Cir. Certiorari dismissed under this Court's Rule 60. Reported below: 567 F. 2d 389. JUNE 19, 1978 Dismissal Under Rule 60 No. 77-6547. WEDEL v. UNITED STATES. C. A. 10th Cir. Certiorari dismissed under this Court's Rule 60. Appeals Dismissed No. 77-1460. NIAGARA MOHAWK POWER CORP. v. PUBLIC SERVICE COMMISSION OF NEW YORK. Appeal from App. Div., Sup. Ct. N. Y., 3d Jud. Dept., dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied. Reported below: 59 App. Div. 2d 73, 397 N. Y. S. 2d 210. No. 77-6796. GODBOUT V. NORTON. Appeal from Sup. Ct. Minn. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied. Reported below: 262 N. W. 2d 374. Miscellaneous Orders No. A-1029 (77-1674). FIELD V. UNITED STATES. C. A. 2d Cir. Application for bail denied without prejudice to an application in the District Court. See 18 U. S. C. §§ 3148, 3146; Fed. Rule App. Proc. 9 (b); United States v. Bowdach, 561 F. 2d 1160, 1167, and n. 2 (CA5 1977). |