Nevada Department of Human Resources v. Hibbs — Scalia, J., Dissenting

Summary

Justice Scalia, dissenting, joined Justice Kennedy's dissent and argued that Congress may use prophylactic legislation under Section 5 of the Fourteenth Amendment only to remedy constitutional violations by the particular State regulated, not violations by other States collectively. He further reasoned that a facial challenge may ask whether legislation could validly apply to some jurisdictions, while an as-applied challenge by Nevada requires proof of unconstitutional conduct by Nevada itself. Justice Kennedy, dissenting, would have invalidated the family-leave provision as applied to private damages suits against unconsenting States, while Justices Stevens and Souter separately concurred in the judgment on different grounds.