Tennessee v. Lane — Scalia, J., Dissenting

Summary

Justice Scalia dissents from the Court's conclusion that Title II of the Americans with Disabilities Act validly abrogates Eleventh Amendment immunity under § 5 of the Fourteenth Amendment. He argues that the 'congruence and proportionality' test is an unmoored, malleable standard that invites judicial arbitrariness. Instead, he would interpret the power to 'enforce' the Amendment to authorize prophylactic legislation only when directed at racial discrimination, and otherwise require enforcement to be limited to remedying conduct already deemed unconstitutional.