McCarthy Ex Rel. Travis v. Hawkins

                                                 United States Court of Appeals
                                                          Fifth Circuit
                                                       F I L E D
               REVISED SEPTEMBER 2, 2004
                                                       August 11, 2004
         IN THE UNITED STATES COURT OF APPEALS
                                                   Charles R. Fulbruge III
                 FOR THE FIFTH CIRCUIT                     Clerk


                     No. 03-50608


CHRISTY MCCARTHY, By and through her next friend Jamie
Travis; TODD GORDON, By and through his next friend Trisha
Gordon; ALLISON PRATT, By and through her next friend Paula
Pratt; GAIL TRUMAN, By and through her next friend Ken
Truman; JIM FLOYD, JR, By and through his next friend Jim
Floyd, Sr; SAM LINDSAY, By and through his next friend Betty
Lindsay; OSHEA BROOKS; JOE RAY COMACHO; MICHA CHASTAIN, By
and through his next friend Lori Chastain; AL, By and
through his next friend LL; ARC OF TEXAS, On behalf of its
members and for those similarly situated; SUE ANN ORTIZ;
PATRICK SOSTACK, By and through their parents and next
friends Gary and Lisa Sostack; SCOTT SOSTACK, By and through
their parents and next friends Gary and Lisa Sostack; SHYAN
FOROUGH, By and through his parents and next friends Reza
and Arzu Forough; DAVID ZWEIFEL, By and through his parents
and next friends Linda and Leroy Zweifel; ASHTON BOWLEN, By
and through her mother and next friend Patricia Bowlen;
TYLER BLANCHARD, By and through his mother and next friend
Faith Blanchard; GARRETT GILLARD, By and through his mother
and next friend Keeya Gillard; KAMERON LANE, By and through
his mother and next friend Angie Lane; MADISON POLK, By and
through her father and next friend John Polk; PAIGE SMITH,
By and through her mother and next friend Gretta Smith

                              Plaintiffs - Appellees

v.

ALBERT HAWKINS, Etc.; ET AL

                              Defendants

ALBERT HAWKINS, In his official capacity as Commissioner of
the Texas Health and Human Services Commission;
KAREN F HALE, In her official capacity as Commissioner of
the Texas Department of Mental Health & Mental Retardation;
JAMES R HINE, In his official capacity as Commissioner of
the Texas Department of Human Services

                              Defendants - Appellants
_________________________________________________________________

           Appeal from the United States District Court
                 for the Western District of Texas
_________________________________________________________________

Before KING, Chief Judge, and REAVLEY and EMILIO M. GARZA,
Circuit Judges.

KING, Chief Judge:

     Plaintiffs sued several Texas state officials, asserting

violations of the Medicaid statute, the Americans with

Disabilities Act, and the Rehabilitation Act.      Relying in part on

state-sovereign immunity, Defendants moved the district court to

dismiss Plaintiffs’ claims.      The district court denied

Defendants’ motion in part, concluding that the doctrine of Ex

parte Young, 

209 U.S. 123

 (1908), provided jurisdiction over this

official-capacity suit seeking prospective relief against state

officers.    Disappointed, Defendants filed this interlocutory

appeal, seeking to vindicate their Eleventh Amendment immunity

from suit.   We agree with the district court that state officers,

sued in their official capacities for prospective relief, are

proper defendants under Title II of the Americans with

Disabilities Act and are not immune under the Eleventh Amendment.

Further, we hold that Defendants’ other contentions on appeal

relate to the merits of this controversy, not the Eleventh

Amendment; therefore, these arguments are beyond the scope of

this interlocutory appeal.      We affirm.

                           I.    Background


                                    2
     Plaintiffs are twenty-one mentally disabled Texas residents

(most of whom sue through their next friends) and the Arc of

Texas (a nonprofit organization that advocates for the rights of

individuals with mental disabilities).     In September 2002, they

brought this action, on behalf of themselves and all others

similarly situated,1 against Defendants.    Defendants are three

Texas state officers sued in their official capacities as

Commissioners of the Texas Health and Human Services Commission,

the Texas Department of Human Services, and the Texas Department

of Mental Health and Mental Retardation.2    Plaintiffs allege that

Defendants are not adequately providing community-based living

options to individuals, like themselves, with mental retardation

and other developmental disabilities.

     The programs to which Plaintiffs seek access are offered by

Texas as part of its Medicaid plan.   Title XIX of the Social

Security Act established Medicaid, a cooperative federal-state

program that provides federal funding to states that furnish

medical services to needy individuals.     See 

42 U.S.C. §§ 1396

-

1396v (2000); Frew v. Hawkins, 

124 S. Ct. 899, 901

 (2004).      While

state participation is voluntary, if a state elects to join the

program, it must administer a state plan that meets federal


     1
          Plaintiffs filed a motion for class certification,
which is still pending in the district court.
     2
          We also refer to Defendants collectively as “Texas” or
“the State.”

                                3
requirements.    See 42 U.S.C. § 1396a(a) (describing the required

contents of a state plan); Frew, 

124 S. Ct. at 901

.       States can,

however, obtain certain waivers, which allow them to deliver

experimental services under a relaxed set of regulatory

strictures.   One such waiver permits states to offer home and

community-based services for disabled individuals who would

otherwise require institutional care.     See 42 U.S.C.

§ 1396n(c)(1).   Under a § 1396n(c) waiver, certain obligations

that otherwise attach to states’ provision of Medicaid services

are waived, and participating states may obtain federal

reimbursement for services that would not normally be

reimbursable under the Medicaid program.     See id. § 1396n(c)(3)

(detailing the requirements that may be waived under a § 1396n(c)

waiver); id. § 1396n(c)(4)(B) (explaining the services that may

be provided under a § 1396n(c) waiver).

     Plaintiffs’ claims center on two § 1396n(c) waiver programs

offered by Texas for mentally disabled individuals.       First, the

Home and Community-Based Waiver Services program (the “HCS”

program) provides services that enable individuals with mental

retardation to remain at home, live independently, or live in

small home-like settings.   The HCS program thereby helps those

individuals avoid institutional living environments.      Second, the

Community Living Assistance and Support Services waiver program

(the “CLASS” program) provides similar assistance to individuals

with other developmental disabilities.

                                  4
              II.   Proceedings in the District Court

     Plaintiffs’ second amended complaint alleges that Defendants

have denied them access to the HCS and CLASS programs.   According

to Plaintiffs, this denial of access violates several provisions

of federal law--namely, (1) four subsections of the federal

Medicaid statute, including its due process provision (i.e.,

§ 1396a(a)(3)3), and its implementing regulations; (2) Title II

of the Americans with Disabilities Act of 1990, 

42 U.S.C. §§ 12131-12165

 (2000), and its implementing regulations;

(3) § 504 of the Rehabilitation Act of 1973, as amended, 

29 U.S.C.A. § 794

(a) (West 1999 & Supp. 2004), and its implementing

regulations; and (4) the Due Process and Equal Protection Clauses

of the Fourteenth Amendment.   Plaintiffs assert causes of action

under 

42 U.S.C. § 1983

, Title II, and § 504, and they seek

declaratory and injunctive relief.

     Defendants moved to dismiss under Rule 12(b)(6) and Rule

12(b)(1), contending that several of Plaintiffs’ claims failed to

state a claim upon which relief could be granted and asserting

Eleventh Amendment immunity from the entire suit.   In May 2003,

the district court granted Defendants’ motion in part and denied

it in part.   The district court dismissed, for failure to state a

     3
          According to this subsection, a state’s Medicaid plan
must “provide for granting an opportunity for a fair hearing
before the State agency to any individual whose claim for medical
assistance under the plan is denied or is not acted upon with
reasonable promptness.” 42 U.S.C. § 1396a(a)(3).


                                 5
claim, Plaintiffs’ Due Process and Equal Protection claims.

Similarly, the court dismissed, for failure to state a claim, all

but one of Plaintiffs’ § 1983 claims regarding alleged

infringements of the Medicaid statute, concluding that only the

due process provision in § 1396a(a)(3) was enforceable under

§ 1983.4    Concerning Plaintiffs’ Title II and § 504 causes of

action, the court ruled that Plaintiffs’ complaint did state

actionable claims under each statute.    Further, since Plaintiffs

sued state officers for prospective relief, the court relied on

the doctrine of Ex parte Young in holding that the Eleventh

Amendment did not bar Plaintiffs’ Title II and § 504 claims.

     In sum, the district court allowed three of Plaintiffs’

causes of action to proceed: (1) their § 1983 claim based on

violations of the due process provision of the Medicaid statute

(§ 1396a(a)(3)); (2) their Title II claim; and (3) their § 504

claim.     Defendants appeal from that portion of the district

court’s May 2003 order that denied their motion to dismiss on the

basis of Eleventh Amendment immunity.    Under the collateral order

doctrine, this court has jurisdiction over an interlocutory

appeal from a denial of a motion to dismiss asserting Eleventh


     4
          While the district court did not expressly discuss
Defendants’ Eleventh Amendment-immunity defense to Plaintiffs’
surviving § 1983 claim (for violation of § 1396a(a)(3)), since
this claim was not dismissed, the court must have rejected that
defense, probably believing that this claim was also permissible
under Ex parte Young. On appeal, Defendants do not complain
about this omission from the district court’s opinion.

                                   6
Amendment immunity.     See P.R. Aqueduct & Sewer Auth. v. Metcalf &

Eddy, Inc., 

506 U.S. 139, 144-45

 (1993).      In November 2003, this

court granted the United States’s unopposed motion to intervene

on behalf of Plaintiffs.5

                        III.   Standard of Review

     This court reviews denials of Eleventh Amendment immunity de

novo.    Cozzo v. Tangipahoa Parish Council--President Gov’t, 

279 F.3d 273, 280

 (5th Cir. 2002).

            IV.   Texas’s Entitlement to Eleventh Amendment
                           Immunity From Suit

     The Eleventh Amendment has been interpreted by the Supreme

Court to bar suits by individuals against nonconsenting states.

Bd. of Trs. of the Univ. of Ala. v. Garrett, 

531 U.S. 356, 363

(2001).    In addition, the principle of state-sovereign immunity

generally precludes actions against state officers in their

official capacities, see Edelman v. Jordan, 

415 U.S. 651, 663-69

(1974), subject to an established exception: the Ex parte Young

doctrine.    Under Ex parte Young, “a federal court, consistent

with the Eleventh Amendment, may enjoin state officials to

conform their future conduct to the requirements of federal law.”

Quern v. Jordan, 

440 U.S. 332, 337

 (1979).      Here, the district

court relied on the Ex parte Young exception in ruling that the

Eleventh Amendment does not bar Plaintiffs’ claims.


     5
          We refer to the United States as “the government” in
this opinion.

                                    7
A.   The Parties’ Contentions

     Texas maintains that a plaintiff may not proceed under Ex

parte Young unless she asserts a violation of a federal right

that arises from a valid federal law that is enforceable against

the defendant state.   In Texas’s view, Plaintiffs’ § 1983, Title

II, and § 504 claims do not satisfy these prerequisites to an Ex

parte Young action because none alleges a violation of a valid

federal right that is enforceable against Defendants.    Texas

presents four arguments on appeal.    First, Texas contends that

the district court incorrectly determined that Plaintiffs can

enforce the due process provision of the federal Medicaid law,

§ 1396a(a)(3), under § 1983.    Second, Texas asserts that an

action cannot be brought under Ex parte Young to enforce Title II

of the ADA, since a state officer is not a proper defendant under

Title II.   Third, the State argues that Congress lacked the power

under either § 5 of the Fourteenth Amendment or the Commerce

Clause to enact the substantive requirements in Title II and that

Title II violates the Tenth Amendment.    Fourth, Texas maintains

that § 504 of the Rehabilitation Act is unconstitutional as

applied to Defendants because it violates the relatedness

requirement imposed on Spending Clause legislation in South

Dakota v. Dole, 

483 U.S. 203, 207

 (1987).    Accordingly, Texas

contends that state-sovereign immunity bars Plaintiffs’ suit

because Plaintiffs have not alleged a violation of any valid



                                  8
federal law.

     Plaintiffs and the government respond that Texas is

attempting impermissibly to broaden the scope of this

interlocutory appeal.    By articulating these “prerequisites” to

an Ex parte Young suit, they assert, the State invites this court

to reach the merits of Plaintiffs’ claims and Defendants’

defenses to liability.   Instead, Plaintiffs argue, this court

must limit its review to whether the district court correctly

concluded that Texas’s Eleventh Amendment immunity from suit does

not bar it from hearing Plaintiffs’ § 1983, Title II, and § 504

claims.   Accordingly, Plaintiffs and the government maintain that

this court should refuse to consider all but one of Texas’s

arguments, i.e., its contention that an Ex parte Young suit

cannot be brought to enforce Title II.

     Since Plaintiffs and the government concede that Texas’s

second contention is an appropriate subject of consideration in

this interlocutory appeal, we address this argument first.

B.   Whether state officers are proper defendants under Title II

     Title II provides in relevant part that “no qualified

individual with a disability shall, by reason of such disability,

be excluded from participation in or be denied the benefits of

the services, programs, or activities of a public entity, or be

subjected to discrimination by any such entity.”   

42 U.S.C. § 12132

 (2000).   The State asserts that the district court erred



                                  9
in denying it Eleventh Amendment immunity from Plaintiffs’ cause

of action under Title II because a claim cannot be brought under

Ex parte Young to enforce that statute.   Texas maintains that a

state officer is not a proper defendant under Title II; only

public entities can be sued under the statute.   Thus, since Ex

parte Young only allows suits against state officers, Texas

reasons that Plaintiffs’ Title II claims must be dismissed.      In

response, Plaintiffs and the government argue that Title II can

be enforced through suits for prospective relief against state

officers, even though the substantive requirements of the statute

apply only to public entities, because a suit against a state

officer in her official capacity is really a suit against the

state agency itself.

     Texas’s contention presents an issue of first impression in

this circuit.   The State relies primarily on the Seventh

Circuit’s opinion in Walker v. Snyder, 

213 F.3d 344

 (7th Cir.

2000).6   In Walker, the court held that a plaintiff could not


     6
          Texas also cites Lewis v. N.M. Dep’t of Health, 

94 F. Supp. 2d 1217

 (D.N.M. 2000). There, the court held that an Ex
parte Young action could not be maintained under Title II because
state officials are not proper defendants under the statute. 

Id. at 1230

. Without engaging in much analysis, the court relied on
one circuit court opinion involving state officers sued in their
individual capacities, see Alsbrook v. City of Maumelle, 

184 F.3d 999

, 1005 n.8 (8th Cir. 1999) (en banc), and several district
court decisions. Lewis, 

94 F. Supp. 2d at 1230

. While the Lewis
court’s judgment was upheld on appeal, the Tenth Circuit did not
pass on this holding, since the plaintiffs had dropped their ADA
claim. Lewis v. N.M. Dep’t of Health, 

261 F.3d 970, 975

 (10th
Cir. 2001).

                                10
bring an Ex parte Young suit to enforce Title II because the only

proper defendant “is the public body as an entity.”     Id. at 347.

But Walker, decided in 2000, has been undermined by the Supreme

Court’s subsequent statement in Garrett that Title I of the ADA

could be enforced in an Ex parte Young action.     Garrett, 

531 U.S. at 374

 n.9.    Indeed, the Seventh Circuit has disavowed Walker’s

holding on this issue, concluding that it “did not survive”

Garrett.     Bruggeman v. Blagojevich, 

324 F.3d 906, 912-13

 (7th

Cir. 2003).    Even though Walker has been abrogated, Texas still

contends this court should follow that decision, since the remark

from Garrett that the Bruggeman court relied on was dictum.

     Although the Court’s comment in Garrett was not essential to

the judgment, the courts of appeals have been unanimous in

rejecting arguments that state officers cannot be sued for

prospective relief in their official capacities for violations of

Title II.7    In addition to this substantial authority from other

     7
          See Henrietta D. v. Bloomberg, 

331 F.3d 261, 288

 (2d
Cir. 2003) (refusing to “embrace the state defendant’s statutory
claim that an individual sued in his or her official capacity
under the doctrine of Ex parte Young is not a ‘public entity’
subject to liability” under Title II and explaining that, “[t]he
real party in interest in an official-capacity suit is the
government entity. As a result, it is irrelevant whether the ADA
would impose individual liability on the officer sued; since the
suit is in effect against the ‘public entity,’ it falls within
the express authorization of the ADA.” (citation omitted));
Miranda B. v. Kitzhaber, 

328 F.3d 1181, 1187-88

 (9th Cir. 2003)
(following “the Sixth, Seventh, and Eighth Circuits in holding
that Title II’s statutory language does not prohibit [the
plaintiff’s] injunctive action against state officials in their
official capacities”); Bruggeman, 

324 F.3d at 912-13

; Carten v.
Kent State Univ., 

282 F.3d 391, 396-97

 (6th Cir. 2002) (holding

                                  11
circuits, Supreme Court precedent makes clear that “a suit

against a state official in his or her official capacity is not a

suit against the official but rather is a suit against the

official’s office.”   Will v. Mich. Dep’t of State Police, 

491 U.S. 58, 71

 (1989); accord Kentucky v. Graham, 

473 U.S. 159, 165-66

 (1985) (“Official-capacity suits . . . generally represent

only another way of pleading an action against an entity of which

an officer is an agent.   As long as the government entity

receives notice and an opportunity to respond, an

official-capacity suit is, in all respects other than name, to be

treated as a suit against the entity.   It is not a suit against

the official personally, for the real party in interest is the

entity.” (citations and internal quotation marks omitted)).     Only

for the purposes of the Eleventh Amendment are “official-capacity

actions for prospective relief . . . not treated as actions

against the State.”   Graham, 

473 U.S. at 167

 n.14 (citing Ex

parte Young).

     We thus join the Second, Sixth, Seventh, Eighth, and Ninth

Circuits in holding that Plaintiffs’ Ex parte Young suit to



that “an official who violates Title II of the ADA does not
represent ‘the state’ for purposes of the Eleventh Amendment, yet
he or she nevertheless may be held responsible in an official
capacity for violating Title II”); Randolph v. Rodgers, 

253 F.3d 342

, 348 (8th Cir. 2001) (citing Garrett’s dictum and refusing to
accept the contention that “because the statutory language of the
ADA provides only for ‘public entity’ liability, an Ex parte
Young claim against the state officials in their official
capacities, premised upon an ADA violation, must fail”).

                                12
enforce Title II can proceed; Defendants have been sued in their

official capacities and are therefore representing their

respective state agencies (which are proper Title II defendants)

for all purposes except the Eleventh Amendment.8

C.   Texas’s other arguments on appeal

     When stripped of their Eleventh Amendment gloss, Texas’s

three remaining arguments essentially target the merits of

Plaintiffs’ claims, rather than Plaintiffs’ reliance on the

doctrine of Ex parte Young to establish jurisdiction.   As we will

see, these defenses to liability are beyond the scope of this

interlocutory appeal from a denial of Eleventh Amendment immunity

from suit.   See P.R. Aqueduct & Sewer Auth., 

506 U.S. at 144

     8
          Texas, relying on Seminole Tribe of Florida v. Florida,

517 U.S. 44

 (1996), also suggests that Title II’s use of the
phrase “public entity” evidences Congressional intent to preclude
Ex parte Young actions to enforce the Act. But Seminole Tribe
provides no comfort to the State. There, the Court merely
explained that, “where Congress has prescribed a detailed
remedial scheme for the enforcement against a State of a
statutorily created right, a court should hesitate before casting
aside those limitations and permitting an action against a state
officer based upon Ex parte Young.” 

Id. at 74

 (emphasis added).
Here, Plaintiffs do not seek under Ex parte Young any remedies
that have been limited by the terms of Title II. In addition, at
least two other circuits have specifically rejected arguments,
based on Seminole Tribe, that Congress intended to preempt Ex
parte Young actions to enforce Title II. See Henrietta D., 

331 F.3d at 289

 (“In our view, Seminole Tribe does not bar Ex parte
Young relief under Title II against a state official in her
official capacity. Neither § 504 nor Title II displays any
intent by Congress to bar a suit against state officials in their
official capacities for injunctive relief, nor does either create
a remedial scheme so elaborate that it could be thought to
preclude relief under Ex parte Young.”); Miranda B., 

328 F.3d at 1188-89

.

                                13
(explaining that the Eleventh Amendment “confers an immunity from

suit”).

     1.    The constitutionality of Title II and § 504

     We first turn to Texas’s contentions that Congress lacked

the power to enact the substantive provisions of Title II and

§ 504.    The State provides no authority for its assertion that a

federal court must determine the constitutionality of a federal

law in the course of determining the applicability of the Ex

parte Young exception.   Instead, the State misleadingly quotes

the Supreme Court’s opinion in Gonzaga University v. Doe for the

proposition that, “[a]s a prerequisite to bringing a Young suit,

. . . ‘a plaintiff must assert the violation of a federal right,

not merely a violation of federal law.’”    Texas Br. at 13

(quoting Doe, 

536 U.S. 273, 282

 (2002)).    But this passage in Doe

involved the prerequisites for stating a claim under § 1983, not

the requirements for avoiding an Eleventh Amendment defense to

suit through the vehicle of an Ex parte Young action.9   Texas

relies heavily on this misinterpretation of Doe in contending

that Plaintiffs cannot proceed under Ex parte Young unless this


     9
          The full sentence from the opinion reads, “We
emphasized: ‘[T]o seek redress through § 1983, . . . a plaintiff
must assert the violation of a federal right, not merely a
violation of federal law.’” Doe, 

536 U.S. at 282

 (quoting
Blessing v. Freestone, 

520 U.S. 329, 340

 (1997)) (alterations in
original) (first emphasis added). Of course, Plaintiffs’ Title
II and § 504 claims do not arise under § 1983; both Title II and
§ 504 are enforceable directly through private causes of action.
See Barnes v. Gorman, 

536 U.S. 181, 185

 (2002).

                                 14
court first determines that their claims rely on federal laws

that are both constitutional and enforceable against the State.

But Texas simply provides no support for its contention that a

court must determine the validity of a plaintiff’s cause of

action in the course of deciding whether an Ex parte Young suit

can proceed in the face of a state’s Eleventh Amendment defense.

     Texas’s broad understanding of the scope of this

interlocutory appeal is not only unprecedented, more importantly,

it flies in the face of the Supreme Court’s reasoning in Verizon

Maryland, Inc. v. Public Service Commission, 

535 U.S. 635

 (2002).

There, Verizon brought suit in federal district court, seeking

relief from an order of the Maryland Public Service Commission.

Id. at 640

.    Verizon alleged that the Commission’s order violated

federal law.     

Id.

   In ruling that the district court lacked

jurisdiction to hear Verizon’s action, the Fourth Circuit held,

inter alia, that the Eleventh Amendment did not permit Verizon to

sue individual commissioners in their official capacities.        

Id.

In the words of the Supreme Court, the “Fourth Circuit suggested

that Verizon’s claim could not be brought under Ex parte Young,

because the Commission’s order was probably not inconsistent with

federal law after all.”      

Id. at 646

.   The Court swiftly rejected

this reasoning, noting that “the inquiry into whether suit lies

under Ex parte Young does not include an analysis of the merits

of the claim.”     

Id.

 (emphasis added).   On the contrary, the Court

explained that “[i]n determining whether the doctrine of Ex parte

                                   15
Young avoids an Eleventh Amendment bar to suit, a court need only

conduct a ‘straightforward inquiry into whether [the] complaint

alleges an ongoing violation of federal law and seeks relief

properly characterized as prospective.’”    

Id.

 at 645 (quoting

Idaho v. Coeur d’Alene Tribe of Idaho, 

521 U.S. 261, 296

 (1997)

(O’Connor, J., concurring in part and concurring in the

judgment)) (alteration in original); see also Coeur d’Alene, 

521 U.S. at 281

 (“An allegation of an ongoing violation of federal

law where the requested relief is prospective is ordinarily

sufficient to invoke the Young fiction.” (emphasis added)).

Thus, the Court made clear that analyzing the applicability of

the Ex parte Young exception should generally be a simple matter,

which excludes questions regarding the validity of the

plaintiff’s cause of action.

     Texas attempts to distinguish Verizon, asserting that its

arguments contesting the constitutionality of Title II and § 504

are appropriate for consideration in this interlocutory appeal,

even though an argument that it has not violated those statutes

would not be.   We are not persuaded.   Like other defenses to

liability, the State’s arguments do not challenge the district

court’s power under Ex parte Young to adjudicate Plaintiffs’

claims.   Rather, the State seeks to have Plaintiffs’ Title II and

§ 504 claims dismissed on the merits on the ground that the

statutes’ substantive provisions are unconstitutional; such a

disposition would not be a determination that the Ex parte Young

                                16
exception is inapplicable or that the Eleventh Amendment bars a

federal court from hearing Plaintiffs’ action.     In other words,

resolution of the constitutional questions urged by Defendants is

irrelevant to the question whether Texas’s Eleventh Amendment

immunity from suit has been infringed.   Moreover, our refusal to

consider the constitutional issues in this interlocutory appeal

comports with the rationale for allowing an interlocutory appeal

from denials of Eleventh Amendment immunity.   Unlike a State’s

entitlement to Eleventh Amendment immunity from suit, the

constitutionality of Title II and § 504 can be reviewed

effectively on appeal from a final judgment.     Cf. P.R. Aqueduct &

Sewer Auth., 

506 U.S. at 144-45

 (explaining that the question of

state-sovereign immunity is (1) conclusively determined by the

denial of a motion to dismiss, (2) completely separate from the

merits of the action, and (3) “effectively unreviewable on appeal

from a final judgment”).   We consequently follow the teaching of

Verizon and hold that the constitutionality of the substantive

provisions of Title II and § 504 is beyond the scope of this

appeal.

     2.   The enforceability of § 1396a(a)(3) under § 1983

     Finally, we consider Texas’s assertion that the Eleventh

Amendment bars Plaintiffs’ surviving § 1983 claim because the due

process provision of the Medicaid statute, § 1396a(a)(3), does

not create a federal right enforceable under § 1983.    Although

couched in terms of sovereign immunity, the State’s argument on

                                17
this score is entirely devoted to attacking the district court’s

ruling that Plaintiffs can state an actionable claim under § 1983

to enforce § 1396a(a)(3).   Even more so than Defendants’

constitutional contentions, this argument centers on the merits

of Plaintiffs’ § 1983 claim, not their use of Ex parte Young to

seek injunctive relief despite the Eleventh Amendment.    Moreover,

other than their misinterpretation of Doe (which we exposed

above), Defendants provide no support for the notion that, to

determine the applicability of the Ex parte Young exception, we

must review the district court’s conclusion that a § 1983 action

can be brought to enforce § 1396a(a)(3).   On the contrary, at

least one court of appeals has refused to broaden this type of

interlocutory appeal to encompass the question whether alleged

transgressions of the Medicaid statute can be vindicated under

§ 1983.   See Rosie D. ex rel. John D. v. Swift, 

310 F.3d 230, 233-34, 238

 (1st Cir. 2002) (opining that the issue of

enforceability under § 1983 was not ripe for review).    Similarly,

we will confine ourselves to the question whether Plaintiffs have

properly demonstrated jurisdiction under Ex parte Young.

D.   The applicability of the Ex parte Young exception to
     Eleventh Amendment immunity

     Left to address the simple question whether the district

court correctly found that Plaintiffs properly have proceeded

under Ex parte Young, we agree with the district court.

Plaintiffs allege that Defendants’ failure to admit them to the


                                18
HCS and CLASS programs violates § 1396a(a)(3), Title II, and

§ 504.    Further, they seek injunctive and declaratory relief.10

Thus, the “complaint alleges an ongoing violation of federal law

and seeks relief properly characterized as prospective.”

Verizon, 

535 U.S. at 645

 (internal quotation marks omitted).

Plaintiffs have therefore satisfied the Supreme Court’s

“straightforward inquiry,” and we hold that the Eleventh

Amendment does not apply to this suit.       See P.R. Aqueduct & Sewer

Auth., 

506 U.S. at 146

 (“Young and its progeny render the

[Eleventh] Amendment wholly inapplicable to a certain class of

suits.”).

                           V.   Conclusion

     Accordingly, we AFFIRM the order of the district court

denying that portion of Defendants’ motion to dismiss that relies

on the defense of Eleventh Amendment immunity.




     10
          Defendants do not contend that the relief sought by
Plaintiffs could have an impermissibly retroactive effect.

                                  19
EMILIO M. GARZA, Circuit Judge, concurring in part and dissenting

in part:

     The majority opinion incorrectly concludes that the

constitutionality of the federal law underlying an Ex parte Young

suit is not properly considered as part of an Eleventh Amendment

immunity analysis.   To sustain a Young suit a plaintiff must

allege an ongoing violation of valid, constitutional federal law.

As I believe that Title II of the ADA was enacted beyond

Congress’s legislative authority, I would hold that the

plaintiffs in this case (“the Plaintiffs”) have failed to

establish a valid Young suit against the defendant commissioners

(“Texas”) under Title II of the Americans with Disabilities Act

(“ADA”) and that Texas is entitled to Eleventh Amendment immunity

as to that claim.    However, because I believe § 504 of the

Rehabilitation Act is valid Spending Clause legislation, I would

hold that the Plaintiffs have properly alleged a Young suit under

that statute.   Further, I agree with the majority opinion that

Texas’s claim that the Medicaid Act does not provide for an

individual cause of action is beyond the scope of this appeal and

should not be considered.    Accordingly, I respectfully concur in

part, and dissent in part.

                                  I

     This is an interlocutory appeal of an order denying Texas’s

claim of Eleventh Amendment immunity. See Puerto Rico Aqueduct       &


                                 20
Sewer Auth. v. Metcalf & Eddy Inc., 

506 U.S. 139, 147

, 

113 S. Ct. 684

 (1993) (authorizing an interlocutory appeal of an order

denying Eleventh Amendment immunity).     As there is no final order

in this case, we are limited to considering the question of

whether Texas is entitled to Eleventh Amendment immunity from the

Plaintiffs’ suit.      All other issues are beyond the scope of this

appeal.

     As part of this appeal, Texas challenges the

constitutionality of both Title II of the ADA and § 504 of the

Rehabilitation Act.      Texas does not independently challenge the

constitutionality of these statutes, which would be beyond the

jurisdiction of this appeal.     Instead, it challenges their

constitutionality as part of its assertion of Eleventh Amendment

immunity and its argument that the Plaintiffs have not properly

alleged a suit under Ex parte Young.     Texas argues that because

the permissibility of a Young suit is premised on the assumption

that the defendant state official is engaging in an ongoing

violation of federal law, the question of the validity of that

federal law is a proper subject of an Eleventh Amendment immunity

analysis.   I agree.

     Under the Eleventh Amendment, “an unconsenting State is

immune from suits brought in federal court by [its] own citizens

as well as by citizens of another state.”      Edelman v. Jordan, 

415 U.S. 651, 663

, 

94 S. Ct. 1347

 (1974).     The Eleventh Amendment


                                   21
provides states with immunity from “the indignity” of being

subjected to the “coercive process of judicial tribunals at the

instance of private parties.”    Metcalf, 

506 U.S. at 146

 (citing

In re Ayer, 

123 U.S. 443, 505

, 

8 S. Ct. 164

 (1887)).      The Supreme

Court has held that the rule that “a State may not be sued

without its consent is [such] a fundamental rule of jurisprudence

. . . that the entire judicial power granted by the Constitution

does not embrace authority to entertain a suit brought by private

parties against a State without consent given . . . .”       Pennhurst

State Sch. & Hosp. v. Halderman, 

465 U.S. 89, 99

, 

104 S. Ct. 900

(1984) (quoting Ex parte State of New York No. 1, 

256 U.S. 490, 497

, 

41 S. Ct. 588

 (1921)) (emphasis omitted).    Eleventh

Amendment immunity extends to suits against state officials in

their official capacities. See id. at 101 (A suit against a state

official “is in fact against the sovereign if the decree would

operate against the latter.”).    Therefore, “a suit against [a]

state official[] that is in fact a suit against a State is barred

regardless of whether it seeks damages or injunctive relief.” Id.

at 102.

     One exception to this general rule is that “a suit

challenging the constitutionality of a state official’s action is

not one against the State.”     Id.; see Ex parte Young, 

209 U.S. 123

, 

28 S. Ct. 441

 (1908).    Under Ex parte Young, “an

unconstitutional enactment is ‘void’ and therefore does not


                                  22
impart to the officer any immunity from responsibility to the

supreme authority of the United States.”     Pennhurst, 

465 U.S. at 102

 (internal quotations omitted).    The Supreme Court has

recognized that there is some “irony” in the fact that “an

official’s unconstitutional conduct constitutes state action

under the Fourteenth Amendment” but does not under the Eleventh

Amendment.   

Id. at 105

.   It, however, has concluded that the

Young doctrine is “necessary to permit the federal courts to

vindicate federal rights and hold state officials responsible to

‘the supreme authority of the United States.’” 

Id.

     The Supreme Court, however, has sought to balance the need

to hold state officials responsible to the “supreme authority of

the United States” with states’ “fundamental” right to immunity

from private suit.   To achieve this balance it has thus limited

the scope of the Young exception.     For example, a Young suit can

only be brought to require a state official to “conform his

future conduct of office to the requirements of” federal law, but

may not be applied retroactively. Edelman, 

415 U.S. at 664

; see

Verizon Maryland Inc. v. Pub. Serv. Comm’n of Maryland, 

535 U.S. 635, 645

, 

122 S. Ct. 1753

 (2002) (A Young suit requires the

plaintiff allege “an ongoing violation of federal law and seek[]

relief properly characterized as prospective.”).

     In crafting this limitation, the Supreme Court has noted

that the “distinction between prospective and retroactive relief


                                 23
fulfills the underlying purpose of Ex parte Young while at the

same time preserving to an important degree the constitutional

immunity of the States.”   Pennhurst, 

465 U.S. at 106

.   Further,

it has noted the importance of consciously balancing these two

important interests when applying the Young doctrine.    See, e.g.,

id.; Idaho v. Couer d’Alene Tribe of Idaho, 

521 U.S. 261, 270

,

117 S. Ct. 2028

 (1997) (noting that application of Young requires

an “understanding of its role in our federal system”); see also

Verizon, 

535 U.S. at 649

 (Kennedy, J., concurring) (“Ex parte

Young jurisprudence requires careful consideration of the

sovereign interests of the State as well as the obligations of

state officials to respect the supremacy of federal law.”).

     In Pennhurst State School & Hospital v. Halderman, the

Supreme Court held that a plaintiff cannot vindicate state rights

as part of a Young suit.   Pennhurst, 

465 U.S. at 106

.   After

reviewing the policy justifications for the Young doctrine and

noting the importance of balancing the competing interests

outlined above, the Court concluded: “This need to reconcile

competing interests is wholly absent, however, when a plaintiff

alleges that a state official has violated state law.    In such a

case the entire basis for the doctrine of Young . . .

disappears.”   

Id.

 (emphasis omitted).   It further concluded, “[a]

federal court’s grant of relief against state officials on the

basis of state law . . . does not vindicate the supreme authority

                                24
of federal law.”   

Id.

 (emphasis added); see Saahir v. Estelle, 

47 F.3d 758, 761

 (5th Cir. 1995) (noting that “the only legitimate

basis for federal court intervention, consistent with the

Eleventh Amendment is the vindication of federal rights”).

     The Supreme Court has thus made it clear that if there are

no federal rights for the plaintiff to vindicate then the

justification for the Young exception is not present in the case

and the state’s right to Eleventh Amendment immunity should be

honored.   See Pennhurst, 

465 U.S. at 106

.   The justification for

a Young suit is also absent when the plaintiff alleges the

ongoing violation of unconstitutional or otherwise invalid

federal law.   In such a case, there are no federal rights to

vindicate and there can be no prospective relief under Young.

Therefore, before we can determine whether a plaintiff seeks to

vindicate “the supreme authority of the law” and before we can

possibly balance the “sovereign interests of the State . . .

[with the] obligation[] of state officials to respect the

supremacy of federal law,” we must first determine whether the

plaintiff seeks to vindicate valid federal rights, and by

implication whether the federal law underlying the Young suit is

constitutional.

     The majority opinion concludes that if we were to address

the constitutionality of the statutes underlying the Plaintiffs’

Young suit we would be impermissibly addressing the merits of


                                25
their claims.   The Supreme Court has specifically held that “the

inquiry into whether a suit lies under Ex parte Young does not

include an analysis of the merits of the claim.” Verizon, 

535 U.S. at 646

, see Couer d’Alene, 

521 U.S. at 281

 (“An allegation

of an ongoing violation of federal law . . . is ordinarily

sufficient . . . .”).

     Verizon, however, does not address the relevance of the

constitutionality of the federal law underlying the Young suit.

In Verizon, the Maryland Public Service Commission (“the

Commission”) argued that it was not subject to discipline under

the provisions of the federal statute (The Telecommunications Act

of 1996) underlying Verizon’s Young suit.   See Verizon, 

535 U.S. at 646

.   It did not argue that the law underlying the Young suit

was unconstitutional or was otherwise not valid federal law.    The

Supreme Court held that the Commission had improperly argued the

merits of the underlying claim))whether the Commission had

violated the dictates of the Telecommunications Act))as part of

its assertion of Eleventh Amendment immunity. 

Id.

     However, the

proposed constitutional inquiry in this case is not a review of

the merits of the Plaintiffs’ substantive claims))whether Texas

violated either Title II of the ADA or § 504 of the

Rehabilitation Act.   Rather, it is part of the inquiry into

whether the Plaintiffs seeks to vindicate valid federal rights.

     Further, the majority opinion fails to heed the Supreme


                                26
Court’s warning not to be held captive to the “mechanics of . . .

pleadings” and forget that our application of “the Young

exception must reflect a proper understanding of [the doctrine’s]

role in our federal system and respect for state courts instead

of a reflexive reliance on an obvious fiction.” Couer d’Alene,

521 U.S. at 270

.   As the Court noted, to do so “would be to

adhere to an empty formalism and to undermine the principle . . .

that the Eleventh Amendment immunity represents a real limitation

on a federal court’s federal question jurisdiction.”      

Id.

   In

blindly applying Verizon to this case, the majority opinion

ignores the policy justifications behind the Young exception and

needlessly subjects Texas to a suit in federal court without

first determining whether the Plaintiffs seek to vindicate valid

federal rights.

     Additionally, there is no reason to delay resolving these

issues.   The Supreme Court has emphasized the importance of

quickly resolving Eleventh Amendment claims because “the value to

the States of their Eleventh Amendment immunity . . . is for the

most part lost as litigation proceeds past motion practice.” See

Metcalf, 

506 U.S. at 145

.    This suggests that resolving the

constitutionality of the federal law underlying the Young suit

should be completed sooner rather than later.   This is

particularly true here because there is no policy reason for

delaying the resolution of these issues.   The constitutionality


                                27
of these statutes is a purely legal question that can be resolved

without the aid of either discovery or trial. Compare Mitchell v.

Forsyth, 

472 U.S. 511, 528

, 

105 S. Ct. 2806

 (1985) (authorizing

interlocutory review of denials of qualified immunity because

“[a]ll [the court] need determine is a question of law”) and

Johnson v. Jones, 

515 U.S. 304, 317

, 

115 S. Ct. 2151

 (1995)

(“[I]mmunity appeals interfere less with the final judgment rule

if they are limited to cases presenting neat abstract issues of

law.”), with Metcalf, 

506 U.S. at 147

 (holding that “factual

complexities” provide no excuse for refusing to resolve a claim

of Eleventh Amendment immunity).

     Further, appellate courts routinely resolve constitutional

issues in interlocutory appeals as part of determining whether

Congress has validly abrogated states’ Eleventh Amendment

immunity pursuant to their authority under § 5 of the Fourteenth

Amendment.     See e.g., Reickenbacker v. Foster, 

274 F.3d 974, 979

(5th Cir. 2001) (finding that Congress went beyond its § 5 powers

by abrogating states’ Eleventh Amendment immunity under Title II

of the ADA).    It is similarly appropriate to resolve these

constitutional issues during this appeal.

     The Government suggest that if we were to decide that the

constitutionality of these statutes is properly part of an

Eleventh Amendment immunity analysis we should remand to the

district court so that it may consider and address these issues.


                                  28
The Supreme Court, however, has held that an “Eleventh Amendment

defense sufficiently partakes of the nature of a jurisdictional

bar [] that it need not be raised in the trial court.”     See

Edelman, 

415 U.S. at 678

 (ruling on an Eleventh Amendment

immunity claim raised for the first time in the appellate court).

Further, as these are purely legal questions which would be

reviewed de novo in a future appeal there is no reason to remand

for a ruling by the district court.

       Accordingly, I would hold that a challenge to the

constitutionality of a statute underlying a Young suit is a

proper subject of an Eleventh Amendment immunity analysis and

that consideration of such a challenge is within the scope of an

interlocutory appeal from the denial of a claim of Eleventh

Amendment immunity.     Texas challenges the constitutionality of

both Title II of the ADA and § 504 of the Rehabilitation Act.      As

I believe these constitutional challenge are within the scope of

this appeal, I will address the merits of Texas’s contentions.

                                  II

       Texas challenges the constitutionality of Title II of the

ADA.    It argues that Title II was enacted beyond the scope of

Congress’s authority under    both § 5 of the Fourteenth Amendment

and the Commerce Clause.     See 

42 U.S.C. § 12101

(b)(4) (invoking

both Congress’s § 5 authority and Commerce Clause power in

enacting the ADA).    Texas also argues that Title II improperly


                                  29
impedes on state authority in violation of the Tenth Amendment.

                                 A

     Texas first argues that we should extend our ruling in

Reickenbacker v. Foster, 

274 F.3d at 976

 (holding that Title II

of the ADA was enacted beyond Congress authority under § 5 for

purposes of abrogating states Eleventh Amendment immunity), to

this case and hold that Congress acted beyond its § 5 authority

in enacting Title II.   Plaintiffs and the Government argue that

Reickenbacker is not controlling because in that case we did not

engage in a full § 5 analysis.   See id. at 982 n.60 (refusing to

consider Congressional findings of discrimination by local

entities in § 5 abrogation analysis because local entities cannot

assert sovereign immunity).   Further they argue that our decision

in Reickenbacker has been, at least partially, superseded by the

Supreme Court’s recent decision in Tennessee v. Lane, 

124 S. Ct. 1978, 1992

 (2004) (finding that “extensive record of disability

discrimination” by states justified “prophylactic legislation”),

and argue that, in light of Lane, Title II’s accommodation

requirement is a “congruent and proportional” response to

irrational discrimination against the disabled by state and local

public entities.

     By its own terms, Reickenbacker cannot simply be extended to

this case.   In Reickenbacker, we held that Title II of the ADA

was enacted beyond the scope of Congress’s § 5 powers for


                                 30
purposes of abrogating states’ Eleventh Amendment immunity.     See

Reickenbacker, 

274 F.3d at 982-83

 (finding that because Congress

never established that states engaged in unconstitutional

discrimination against the disabled Title II’s “affirmative

accommodation obligation on the part of public entities” was

enacted beyond Congress’s § 5 authority); cf. Bd. of Trustees of

Univ. of Alabama v. Garrett, 

531 U.S. 356, 367-68

, 

121 S. Ct. 955

(2001) (“States are not required by the Fourteenth Amendment to

make special accommodations for the disabled, so long as their

actions towards such individuals are rational.”).

     We, however, noted that “Title II of the ADA could still be

a valid exercise of Congress’s § 5 power, but simply not provide

the . . . power to abrogate” states’ Eleventh Amendment immunity.

See Reickenbacker, 

274 F.3d at 982

 n.60.   This limiting language

was premised on our refusal to review Congressional findings as

to discrimination by local entities as part of that § 5 analysis

because local entities cannot claim Eleventh Amendment immunity.

See id.; see also Garrett, 

531 U.S. at 369

 (“[Local] entities are

subject to private claims for damages under the ADA without

Congress ever having to rely on § 5 . . . . It would make no

sense to consider constitutional violations on their part, as

well as by the States themselves, when only the States are the

beneficiaries of the Eleventh Amendment.”); but see Lane, 

124 S. Ct. at 1991

 n.16 (suggesting that “constitutional violations on


                               31
the part of nonstate governmental actors” is “relevant” to this

inquiry).    In contrast, “the analysis of whether Congress has the

power to enact legislation requires [an] inquiry into

constitutional violations by [local] entities in addition to

entities entitled to Eleventh Amendment immunity.” Reickenbacker,

274 F.3d at 982

 n.60 (emphasis added) (quoting Thompson v.

Colorado, 

258 F.3d 1241

, 1253 n.7 (10th Cir. 2001), republished

at 

278 F.3d 1020

).   This inquiry was absent from Reickenbacker

and must be included here to determine whether Title II is proper

§ 5 legislation.

     Section 5 grants Congress the power “to enforce” the

substantive guarantees of the Fourteenth Amendment through

“appropriate legislation.”    Garrett, 

531 U.S. at 365

.   In

exercising this power, Congress is not limited to remedying

violations of the substantive rights guaranteed by the Fourteenth

Amendment.    See Katzenbach v. Morgan, 

384 U.S. 641, 648-76

, 

86 S. Ct. 1717

 (1966).   “Congress’ power ‘to enforce’ the Amendment

includes the authority both to remedy and to deter violation of

rights guaranteed thereunder by prohibiting a somewhat broader

swath of conduct, including that which is not itself forbidden by

the Amendment’s text.” Garrett, 

531 U.S. at 365

 (quoting Kimel v.

Florida Bd. of Regents, 

528 U.S. 62, 81

, 

120 S. Ct. 631

 (2000)).

“In other words, Congress may enact so-called prophylactic

legislation that proscribes facially constitutional conduct, in


                                 32
order to prevent and deter unconstitutional conduct.”     Nevada

Dep’t of Human Res. v. Hibbs, 

538 U.S. 721, 727-28

, 

123 S. Ct. 1972

 (2003).

     There are limits on Congress’s power to pass prophylactic

legislation.   Congress may not pass prophylactic legislation that

is in effect a “substantive redefinition of the Fourteenth

Amendment right at issue.” 

Id. at 728

; see City of Boerne v.

Flores, 

521 U.S. 507, 519

, 

117 S. Ct 2157

 (1997) (“Congress does

not enforce a constitutional right by changing what the right

is.”).   “Accordingly, § 5 legislation reaching beyond the scope

of § 1's actual guarantees must exhibit ‘congruence and

proportionality between the injury to be prevented or remedied

and the means adopted to that end.’” Garrett, 

531 U.S. at 365

(quoting City of Boerne, 

521 U.S. at 520

).

     The first step in this analysis is to identify the scope of

the constitutional right to be protected.    

Id.

   The Supreme Court

has concluded that “classifications based on disability violate

[the Fourteenth Amendment] if they lack a rational relationship

to a legitimate governmental purpose.”   Lane, 

124 S. Ct. at 1988

;

see Garrett, 

531 U.S. at 367

 (“States are not required . . . to

make special accommodations for the disabled, so long as their

actions toward such individuals are rational.”).    Congress thus

may seek through its § 5 power to enforce a prohibition on

“irrational disability discrimination.” Lane, 

124 S. Ct. at 33

1988.11

     The next step is to determine “whether Congress identified a

history and pattern of unconstitutional . . . discrimination by

the States against the disabled.”      Garrett, 534 U.S. at 368.   The

Supreme Court, in Tennessee v. Lane, appears to have resolved

this question.   Relying almost exclusively on federal case law,

the Court concluded that “Congress enacted Title II against a

backdrop of pervasive unequal treatment in the administration of

state services and programs . . . .”      Lane, 

124 S. Ct. at 1989

.

It found in the case law examples of irrational discrimination by

states against the disabled in the contexts of: voting; marriage;

jury eligibility; state mental institutions; zoning decisions;

public education; the penal system; and access to the judicial

system.   

Id. at 1989

.12   The Supreme Court has thus concluded

     11
       In contrast, a higher standard of review may apply when
other types of classifications or rights are at issue. See e.g.,
Hibbs, 

538 U.S. at 728

 (“[S]tatutory classifications that
distinguish between males and females are subject to heightened
scrutiny.”); Lane, 

124 S. Ct. at 1992

 (“[R]ight to the access to
the courts . . . call[s] for a standard of judicial review at
least as searching . . . [as] the standard that applies in sex-
based classifications.”).
     12
       The Supreme Court has in the past required that Congress
itself identify a history and pattern of discrimination by
states. See Coll. Sav. Bank v. Florida Prepaid Post-secondary
Edu. Expense Bd., 

527 U.S. 666, 639

, 

119 S. Ct. 2219

 (1999)
(“[F]or Congress to invoke § 5, it must identify conduct
transgressing the Fourteenth Amendment’s substantive
provisions.”) (emphasis added); see also, Garrett, 

531 U.S. at 370-72

 (rejecting the use of documents that are not “legislative
findings” to establish “adverse, disparate treatment by state
officials.”). In Lane, the Supreme Court appears to have

                                  34
that the “inadequate provision of public services and access to

public facilities [for the disabled are] appropriate subject[s]

for prophylactic legislation.”   Id. at 1992.

     The final step in this analysis is to determine whether

Title II is a congruent and proportional response to irrational

discrimination by states against the disabled as identified in

Lane.   See Lane, 

124 S. Ct. at 1992

 (“The only question that

remains is whether Title II is an appropriate response to this

history and pattern of unequal treatment.”); see City of Boerne,

521 U.S. at 530

.    In outlining this test, the Supreme Court has

counseled: “The appropriateness of remedial measures must be

considered in light of the evil presented. Strong measures

appropriate to address one harm may be an unwarranted response to

another, lesser one.”   

Id. at 530

.   To survive scrutiny, Title II

must be tailored to remedy or prevent the “identi[fied] conduct

transgressing the Fourteenth Amendment’s substantive provisions.”

Coll. Sav. Bank    v. Florida Prepaid Post-secondary Edu. Expense

Bd., 

527 U.S. 666, 639

, 

119 S. Ct. 2219

 (1999); see City of

Boerne, 

521 U.S. at 520

 (“There must be a congruence and

proportionality between the injury to be prevented or remedied

and the means adopted to that end.”) (emphasis added).


abandoned this requirement. See Lane, 

124 S. Ct. at 1999

(Rehnquist, J. dissenting) (noting that “the majority identifies
nothing in the legislative record that shows Congress was
responding to widespread violations of the . . . rights of
disabled persons.”).

                                 35
     The Supreme Court concedes in Lane, that taken as a whole,

Title II may not be permissible § 5 legislation.      See Lane, 

124 S. Ct. at 1992

 (“[T]he fact that Title II applies not only to

public education and voting-booth access but also to seating at

state-owned hockey rinks indicates that Title II is not

appropriately tailored to serve its objectives.”); but see 

id. at 1992-3

 (refusing to consider the constitutionality of Title II as

a whole).   This conclusion is consistent with the Supreme Court’s

case law.   In finding that the Religious Freedom Restoration Act

of 1993 was not permissible § 5 legislation the Supreme Court

noted that the act’s “[s]weeping coverage ensures its intrusion

at every level of government, displacing laws and prohibiting

official actions of almost every description regardless of

subject matter.”   City of Boerne, 

521 U.S. at 532

.    Title II’s

coverage is just as sweeping.   It regulates, by it own terms,

“any State or local government; any department, agency, special

purpose district, or other instrumentality of a State or local

government.” See 

42 U.S.C. § 12131

(1).   It regulates every state,

every local government, and every state or local agency in the

United States regardless of whether that entity (or one like it)

has ever engaged in irrational disability discrimination.     Taken

as a whole, there can be little doubt that “the accommodation

obligation imposed by Title II . . . far exceeds that imposed by

the Constitution” and is not a congruent and proportional


                                36
response to the findings of irrational discrimination by states

as outlined in Lane.     See Reickenbacker, 

274 F.3d at 983

.

     Ordinarily this would have been the end of the inquiry.

Until Lane, the constitutionality of a statutory provision was

considered as a whole.     See e.g., Garrett, 

531 U.S. at 365-74

(applying § 5 analysis to Title I as a whole); City of Boerne,

521 U.S. at 529-36

 (applying § 5 analysis to RFRA as a whole).

However, in Lane, the Supreme Court took a different approach.

While admitting that taken as a whole Title II may “not [be]

appropriately tailored to serve its objectives,” it concluded

that as-applied in some circumstances Title II is appropriate § 5

legislation.    See Lane, 

124 S. Ct. at 1992-93

.   Specifically, it

held that “Title II unquestionably is valid § 5 legislation as it

applies to the class of cases implicating the accessibility of

judicial services.”    Id. at 1993.    It then refused to address the

application of Title II in any other circumstance.      See id.    The

Supreme Court has thus structured a new test involving an “as-

applied analysis” whereby courts do not evaluate the

constitutionality of the statute as written, but instead       posit

“a hypothetical statute . . . that applies only to” the relevant

circumstance.   See id. at 1993 n.18 (holding that courts “need

not examine the full breath of the statute at once”); see also

id. at 2005 (Rehnquist J., dissenting) (acknowledging the change

in approach).

                                  37
     As this is a brand new approach to considering the

constitutionality of a statute there is a dearth of precedent on

which to rely in considering how to apply this test.    However,

Lane itself provides a roadmap for how to appropriately determine

whether Title II, as-applied to the circumstances of this case,

is appropriate § 5 legislation.    In Lane, the Court first

referred back to its findings regarding “unequal treatment of

disabled persons in the administration of judicial services.”

Id. at 1993.   It then concluded that Title II’s requirement that

states take “reasonable measures to remove architectural and

other barriers to accessibility” is appropriate legislation

because as-applied it is a congruent and proportional response to

the Court’s findings of irrational discrimination by states in

the administration of judicial services.     See id. at 1993.     The

Court thus identified the specific constitutional problem to be

remedied (as evidenced by its findings) and then evaluated Title

II as it regulates that specific problem.     See id. at 1994.

     The Supreme Court identified eight general areas where there

is a demonstrated history of irrational discrimination by states

against the disabled: voting; marriage; jury eligibility; state

mental institutions; zoning decisions; public education; the

penal system; and access to the judicial system.     See id. at

1989.   The only one of these areas possibly applicable to this

case is state mental institutions.     The Court found that there is


                                  38
a “documented history” of unconstitutional discrimination by

state agencies in the settings of “unjustified commitment” and

“the abuse and neglect of disabled persons committed to state

mental institutions.”   It documented this history by citing two

of its cases: Jackson v. Indiana, 

406 U.S. 715

, 

92 S. Ct. 1845

(1972), and Youngberg v. Romeo, 

457 U.S. 307

, 

102 S. Ct. 2452

(1982).

     In Jackson v. Indiana, the petitioner, Theon Jackson, had

been committed to a state mental institution for an indefinite

period of time on account of his incompetency to stand trial for

petty burglary.   Jackson, 

406 U.S. at 717-20

.   The trial judge

ordered Jackson confined to a state mental institution until it

was determined that he was competent to stand trial.     

Id. at 719

.

Based on the evaluation of Jackson by two physicians, he would

likely never be competent to stand trial and would thus be

confined to a mental institution for the rest of his life.     

Id.

The Supreme Court held that Indiana violated Jackson’s rights to

equal protection and due process by condemning him to    permanent

institutionalization without the benefit of a civil commitment

hearing applying the proper state standards governing forced

institutionalization.   

Id. at 730-31

.   In making its ruling, the

Court did not question the ability of states to order

institutionalization or the normal process by which states

determine whether an individual should be committed.     See 

id.

 at


                                 39
736 (“States have traditionally exercised broad power to commit

persons found to be mentally ill.”).   Instead, it concluded that

the method by which Jackson had been committed violated his

constitutional rights.

     In Youngberg v. Romeo, Nicolas Romeo, who was confined to a

state mental institution pursuant to proper procedures, sued the

state mental institution to recover damages for injuries caused

by his own violent behavior and attacks from other residents of

the facility.   Romeo, 

457 U.S. at 311

.   The Court considered the

question of whether Romeo, as an “involuntarily committed

retarded person,” had a “constitutionally protected liberty

interest in safety, freedom of movement and training within the

institution.”   

Id. at 314-15

.   It concluded that

institutionalized persons like Romeo do have these constitutional

rights and that states are obliged to protect them. 

Id.

 at 324

However, recognizing the difficulty of operating a state mental

institution and balancing the protection of these rights with the

orderly operation of such a facility, the Court concluded that

the decisions of the professional personnel who operate these

institutions “are entitled to a presumption of correctness.”     

Id.

While the Court delineated the rights possessed by

institutionalized persons when they are in forced state custody,

it did not reprimand the state mental institution for its

decisions concerning the care of Romeo or other similarly


                                 40
situated persons.

     These two cases relate solely to the process by which a

disabled person is committed to a state mental institution and

the treatment of that person in such a facility once

institutionalized.   To the extent that Title II regulates the

process by which disabled persons are institutionalized and their

treatment in state mental institutions once they have been

committed it may be a congruent and proportion response to the

irrational discrimination highlighted in Jackson and Romeo.13

Such an analysis must be left to another day because the

defendant commissioners in this case neither run a state mental

institution nor do they make decisions regarding forced

institutionalization.   They run Texas’s Home and Community-based

Waiver Services program which provides home and community based

services for disabled individuals.   The Plaintiffs seek to

participate in this program, they do not seek to overturn a

decision forcing their institutionalization nor do they seek to

challenge the care they receive in a state mental institution.

     Title II’s regulation of Texas’s decisions regarding

participation in this program has nothing to do with either

forced institutionalization or the treatment of disabled



     13
       Title II, which regulates decisions regarding
participation in state run services and programs, appears to
regulate neither decisions regarding forced institutionalization
or the care for disabled person in state mental institutions.

                                41
individuals who reside in state mental institutions.    Therefore,

even under the broadest understanding of these terms, Title II,

to the extent that it regulates Texas’s decisions regarding

participation in the Medicaid programs at issue in this case,

cannot be considered to be a “congruent and proportional”

response to the findings of irrational disability discrimination

by states and local entities as outlined in Lane.

                                   B

     Texas next argues that because Title II does not regulate

“economic activity”it is not a valid regulation of commerce under

the Commerce Clause.     See United States v. Morrison, 

529 U.S. 598, 613

, 

120 S. Ct. 1740

 (2000) (“[C]ases have upheld Commerce

Clause regulation of intrastate activity only where the activity

is economic in nature.”); United States v. Lopez, 

514 U.S. 549, 559-60

, 

115 S. Ct. 1624

 (1995).    Plaintiffs and the Government

counter that because state entities, including the defendant

agencies, covered by Title II engage in economic activity they

can be regulated by the federal government, and that the economic

activity of disabled individuals who are unable to access public

services sufficiently impact interstate commerce to justify

Congress’s regulation.    Further the Government argues that even

if Title II does not sufficiently regulate economic activity to

be justified under the Commerce Clause, the ADA as a whole does

and Title II is such an integral part of the ADA’s permissible


                                  42
regulation that Title II is itself constitutional.    See Hodel v.

Indiana, 

452 U.S. 314

, 329 n.17, 

101 S. Ct. 2376

 (1981); see also

Lopez, 

514 U.S. at 561

; Groome Resources Ltd v. Parish of

Jefferson, 

243 F.3d 192, 210

 (5th Cir. 2000).

       “In reviewing an act of Congress passed under its Commerce

Clause authority, we apply the rational basis test . . . .”

Groome, 234 F.3d at 203.    Therefore, “we invalidate a

congressional enactment only upon a plain showing that Congress

has exceeded its constitutional bounds.”    Morrison, 

529 U.S. at 607

.

       In United States v. Lopez and United States v. Morrison the

Supreme Court outlined the framework for evaluating whether a

federal law constitutes permissible Commerce Clause

legislation.14   There are three broad categories of activity that

Congress may regulate under its commerce power: 1) channels of

interstate commerce; 2) the instrumentalities of interstate

commerce, or persons or things in interstate commerce; 3) those

activities having a substantial relation to interstate commerce,

i.e. those activities that substantially affect interstate

commerce.    

Id. at 609

.


       14
       In Lopez, the Supreme Court struck down the Gun-Free
Zones Act of 1990 which criminalized the knowing possession of a
firearm within a school zone. Lopez, 

514 U.S. at 551

. In
Morrison, it struck down the Violence Against Women Act which
provided civil remedies for victims of gender-motivated violence.
Morrison, 

529 U.S. at 601

.

                                 43
     Title II provides that “no qualified individual with a

disability shall, by reason of such disability, be excluded from

participation in or be denied benefits of the services, programs,

or activities of a public entity, or be subjected to

discrimination by such entity.” 

42 U.S.C. § 12132

.   Like the

statutes in both Lopez and Morrison Title II cannot be justified

under either of the first two types of permissible Commerce

Clause legislation because it solely regulates intrastate

activity.   Plaintiffs and the Government instead rely on the

argument that Title II regulates activity that “substantially

affects interstate commerce.”

     The Supreme Court has outlined four factors to be taken into

account when deciding whether Congress is regulating an activity

that substantially affects interstate commerce: 1) whether the

activity regulated is “economic [in] nature”; 2) whether the

statute has an “express jurisdictional element” limiting its

reach to activities with a connection to interstate commerce; 3)

whether the statute’s “legislative history contains express

congressional findings regarding the effects upon interstate

commerce”; and 4) whether the link between the regulated activity

and interstate commerce are too attenuated to be considered a

regulation of interstate commerce.   Morrison, 

529 U.S. at 610-12

(restating the requirements outlined in Lopez); see Groome, 234

F.3d at 203-04 (recognizing the Lopez-Morrison framework).


                                44
     The first factor is whether the regulated activity is

economic in nature.   “This query derives from the general Lopez

requirement that the regulated intrastate activities, ‘arise out

of or are connected with a commercial transaction, which viewed

in the aggregate, substantially affects interstate commerce.’”

Groome, 234 F.3d at 205 (quoting Lopez, 

514 U.S. at 561

)

(emphasis added). In Morrison, the Supreme Court specifically

emphasized the importance of this factor in this framework.      See

Morrison, 

529 U.S. at 610

 (“[A] fair reading of Lopez shows that

the noneconomic, criminal nature of the conduct at issue was

central to our decision in that case.”).

     We have interpreted Lopez to define two types of economic

activity: 1) activity that is in any sort of economic enterprise;

and, 2) activity that exists as an essential part of a larger

regulation of economic activity, in which the regulatory scheme

would be undercut unless the intrastate activity were regulated.

See Groome, 234 F.3d at 205 (citing Lopez, 

514 U.S. at 561

).

Economic activity as defined by Lopez and understood by Groome

requires a “commercial transaction,” see Lopez, 

514 U.S. at 561

,

or “commercial intercourse,” see Groome, 234 F.3d at 206; see

also United States v. Ho, 

311 F.3d 589, 598-99

 (5th Cir. 2002)

(emphasizing that Congress may only regulate “commercial

activity”).   “It bears reminding that at issue is the power to

regulate interstate commerce.   In that sense commerce is ‘the

                                45
exchange of goods and services’ or ‘trade and other business

activities.’” GDF Realty Investments Ltd v. Norton, 

326 F.3d 622, 629

 (5th Cir. 2003) (quoting BLACK’S LAW DICTIONARY 263 (7th Ed.

1999)).

     Texas argues that Title II does not regulate economic or

commercial activity, rather, by its own terms, it regulates

“participation in . . . services, programs, or activities of a

public entity.”    See 

42 U.S.C. § 12132

.   While admitting that

states often engage in commercial activity both as an entity in

the market and as a regulator, Texas argues that its decisions

concerning who is eligible to participate in its programs and

receive its entitlements do not constitute commercial activity as

contemplated by Lopez and Morrison.     These decisions do not

involve “commercial transactions,” see Lopez, 

514 U.S. at 561

,

nor do they regulate “commercial intercourse,” see Groome, 234

F.3d at 205-06 (finding that zoning decisions regulate “the

commercial transaction[s] of purchasing a home and the commercial

rental of housing”).

     Plaintiffs and the Government first claim that Title II is a

regulation of an economic enterprise.    They argue that public

entities like the defendants engage in the commercial activity of

hiring and paying staff, purchasing or renting facilities, and

borrowing money.   Although all of this is true, none of it is

relevant.   Texas does not challenge the provisions of the ADA


                                 46
that regulate its commercial activity, namely Title I, which

regulates its hiring practices. See United States v. Mississippi

Dep’t of Public Safety, 

321 F.3d 495, 500-01

 (5th Cir. 2003)

(finding that employment is commerce, and that Title I is

permissible commerce clause legislation as applied to states).

It only challenges Title II, which regulates its decisions as to

who receives the benefits of its social services.   Title II does

not regulate any of the activities highlighted by the Plaintiffs.



     Further, if this argument was accepted there would be no

limit on Congress’s ability to regulate state entities.    All

state entities, including state legislatures and courts, hire and

pay staff and engage in other commercial and economic activity

such as purchasing goods and services.   One would not conclude

that Congress can therefore regulate all the activities of state

legislatures and courts.   Although, under the commerce clause,

Congress may regulate state entities as they engage in commercial

transactions, Congress does not have carte blanche authority to

regulate state entities in all their activities))commercial or

not))simply because these entities sometimes engage in commercial

transactions.   See discussion infra.

     Plaintiffs next counter that Title II regulates economic

activity because discrimination against disabled persons

substantially affects those persons’ commercial and economic


                                47
activities and the national economy.    Plaintiffs argue that when

disabled individuals are denied access to public services it

affects their ability to engage in economic activity which

affects interstate commerce. This argument misreads Lopez.     The

relevant question is not whether the regulated activity affects

commerce, it is whether the regulated activity is commerce. See

Lopez, 

514 U.S. at 560-61

; GDF Realty, 

326 F.3d at 630

 (noting

that the key question is “whether the nature of the regulated

activity is economic”).     The “substantially affecting” language

is only relevant once it is determined that economic activity is

being regulated and the court must determine whether that

intrastate economic activity substantially affects interstate

commerce.   See Lopez, 

514 U.S. at 560

 (“Where economic activity

substantially affects interstate commerce, legislation regulating

that activity will be sustained.”) (emphasis added); see also

Morrison, 

529 U.S. at 613

 (“[O]ur cases have upheld Commerce

Clause regulation of intrastate activity only where that activity

is economic in nature.”) (emphasis added).     The substantially

affecting test is inapplicable when determining whether the

federal law regulates economic activity.

     Moreover, in Morrison, the Supreme Court explicitly rejected

this kind of reasoning.15    First noting that “Congress found that


     15
       We also explicitly rejected this reasoning in United
States v. Ho. See Ho, 

311 F.3d at 599

 (“[A]ny imaginable

                                  48
gender-motivated violence affects interstate commerce,” it

rejected the use of “reasoning that . . . [employs] the but-for

causal chain from the initial occurrence of violent crime . . .

to every attenuated effect upon interstate commerce.”    Morrison,

529 U.S. at 615

. It noted that employment of this “reasoning

would allow Congress to regulate any crime as long as the

nationwide, aggregated impact of that crime has substantial

effects on employment, production, transit, or consumption.”      

Id.

Further it could “be applied equally as well to family law and

other areas of traditional state regulation since the aggregate

effect of marriage, divorce, and childrearing on the national

economy is undoubtably significant.”   

Id. at 615-16

.   This is

exactly what Congress seeks to do with Title II, namely regulate

the traditional activities of states by linking their non-

economic activities to some tangential effect they have on the

national economy. This is not permitted under the Commerce

Clause.

     Finally, Plaintiffs point to this Court’s decision in Groome

Resources   v. Parish of Jefferson as evidence that Congress can

regulate discrimination by state entities against the disabled.


activity of mankind can affect the alertness, energy, and mood of
human beings, which in turn can affect their productivity in the
workplace, which when aggregated together could reduce national
economic productivity. Such reasoning would eliminate any
judicially enforceable limit on the Commerce Clause, thereby
turning that clause into what it most certainly is not, a general
police power.”).

                                49
In Groome, we considered a commerce clause challenge to the

application of § 3604(f)(3)(B) of the Fair Housing Amendments Act

(“FHAA”) to zoning decisions.   This provision prohibits the

refusal to make reasonable accommodations in rules or policies

that prevent disabled persons from     full and equal use of

dwellings.   See 

42 U.S.C. § 3604

(f)(3)(B).    Plaintiffs, a local

zoning board, challenged the constitutionality of the provision

as applied to their zoning decisions.     We held that FHAA’s

regulation of zoning decisions is a regulation of commerce

because zoning decisions regulate the economic activity of

purchasing a home or renting property.     See Groome, 234 F.3d at

205-06.   That is not the case here.    The FHAA, as applied in

Groome, applied to state commercial regulation.     The zoning

decisions in Groome were fundamentally commercial in nature

because they regulated obviously commercial activity, namely “the

commercial transaction of purchasing a home and the commercial

renting of housing.”   See id. at 205.    Thus, Groome stands solely

for the proposition that Congress may regulate states’ regulation

of commercial activity under the Commerce Clause. But see New

York v. United States, 

505 U.S. 144, 166

, 

112 S. Ct. 2408

 (1992)

(“The allocation of power contained in the Commerce Clause . . .

does not authorize Congress to regulate state governments’

regulation of interstate commerce.”).     It does not stand for the

proposition that it can regulate states’ non-economic decisions


                                50
as those decisions are not by their nature commercial regulation.

       The Government claims that Title II fits under the second

category of economic regulation, non-economic regulation that is

integral part of a permissible regulation of commerce.    It argues

that Title II is an integral part of the ADA’s permissible

regulation of economic activity. See Hodel, 

452 U.S. at 329

 n.17

(“[A] complex regulatory program . . . can survive a Commerce

Clause challenge without a showing that every single facet of the

program is independently and directly related to a valid

congressional goal.    It is enough that the challenged provisions

are an integral part of the regulatory program and that the

regulatory scheme when considered as a whole satisfies this

test.”); see also Lopez, 

514 U.S. at 561

; GDF Realty, 

326 F.3d at 633

.

       The Government argues that the ADA is a comprehensive

economic regulation of the activities of the disabled in the

national economy.    It further argues that in providing Title II

services states often compete with private entities in areas such

as housing, education, transportation, communication and health

services such that exempting the states from the ADA’s

prohibitions against disability discrimination would unduly

burden private sector entities in relation to state agencies.

This, it argues, would undermine the willingness of private

entities to voluntarily engage in behavior benefitting disabled


                                 51
persons.   Finally, it argues that allowing disability

discrimination in the providing of public services perpetuates

stereotypical attitudes about the disabled that will spill over

into the private sector and undermine the effectiveness of both

Title I and III.   These arguments fail.

     Title I’s regulation of employment discrimination is

permissible Commerce Clause legislation, see Mississippi Dep’t of

Public Safety, 

321 F.3d at 500-01

 (finding that employment is

commerce, and that Title I is permissible commerce clause

legislation as applied to states). Title III does not apply to

states, see Bloom v. Bexar County, Texas, 

130 F.3d 722, 726-27

(5th Cir. 1997), and Congress specifically limited the

application of Title III’s regulation of privately owned places

of public accommodation to those involved in commerce, see 

42 U.S.C. § 12181

; cf. Spector v. Norwegian Cruise Line Ltd., 

356 F.3d 641, 644

 (5th Cir. 2004).    The ADA, considered as a whole,

is reasonably considered permissible Commerce Clause legislation.

However, Title II is not an integral or necessary part of the

ADA’s economic regulation. See Lopez, 

514 U.S. at 561

; GDF

Realty, 

326 F.3d at 631

 (noting that Congressional regulation is

permissible only if “failure to regulate the . . . activity could

‘undercut’ the entire scheme”).

     Title II regulates the provision of public services and more

specifically states’ decisions regarding who receives the


                                  52
benefits of their public services.   State governments do not

compete with private entities in the provision of these services.

For example, states do not compete with the private sector in the

distribution of the free health care provided by the defendants.

Although low-cost health care providers and charities provide

similar services to similar people, in no sense are states

competing with these entities in the health care market.16 States

are simply providing a government created entitlement.   Therefore

states’ decisions in this realm cannot possibly competitively

disadvantage private sector entities as they are not competing

with states in any commercial market.    Regardless, private

sector entities are bound by the requirements of the ADA whether

they are competitively disadvantaged or not.   Even if states are

not regulated by the ADA, all private entities are subject to its

restrictions.   In fact, private entities are subject to broader

restrictions than states because Title III applies exclusively to

them. See Bloom, 

130 F.3d at 726-27

 (finding that Title III only

applies to private entities).   Further, when states do directly

compete with private entities in a market states are engaging in

commercial activity that can be regulated under the Commerce

Clause.   See, e.g., Mississippi Dep’t of Public Safety, 

321 F.3d at 500-01

 (finding that Congress can regulate states as they act


     16
       Nor would, for example, local police be in competition
with a private security service, or a local fire department with
a squad of volunteer firemen.

                                53
in the “national labor market”); cf. Reno v. Condon, 

528 U.S. 141, 151

, 

120 S. Ct. 166

 (2000) (finding that Congress can

regulate states as “the owners of databases.”).

     Additionally, although the Government is correct that

allowing discrimination against disabled individuals in the

providing of public services helps entrench negative stereotypes

against the disabled that may spill over into the private sector,

Congress has passed laws forbidding such discrimination by

private entities, including Title I and III of the ADA.17

Further, although changing those negative stereotypes is a noble

goal it is not in of itself economic or commercial regulation.

Title II is not an integral part of the ADA’s economic regulation

of disability discrimination as Congress can achieve its

permissible goals solely through the use of commercial

regulation.

      This is in contrast to the federal regulations in Wickard

v. Filburn, 

317 U.S. 111

, 

63 S. Ct. 82

 (1942).    Wickard

considered the application of restrictions on production of wheat

to a farmer growing wheat for personal use.   The Supreme Court

noted in Lopez that although Wickard was not engaging in economic


     17
         States, like Texas, have also passed such laws. See
e.g. TEX. LAB. CODE. § 21.051 (forbidding employment
discrimination based on disability); TEX. PROP. CODE § 301.025
(forbidding discrimination based on disability in sale or rental
of property); TEX HEALTH & SAFETY CODE §§ 592.015, 592.016
(forbidding discrimination against mentally retarded individuals
in both employment and housing).

                                54
activity, the purpose of Congress’s legislation was economic in

nature, namely to regulate the price of wheat.     See Lopez, 

514 U.S. at 560

.    Restricting Wickard’s non-economic production and

personal consumption of wheat was necessary to achieve Congress’s

economic goal of propping up the price of wheat.    See Wickard,

317 U.S. at 128

 (finding that widespread “home-consumed wheat

would have a substantial influence on price and market

conditions”).    That is not the case here, Congress’s permissible

economic purposes, namely regulating discrimination in interstate

commerce, can be achieved solely through prohibitions on

discrimination by entities (including states) engaged in

commercial activity.

          “[B]y its terms [Title II]    has nothing to do with

‘commerce’ or any sort of economic enterprise,” nor is it “an

essential part of a larger regulation of economic activity, in

which the regulatory scheme could be undercut unless the

intrastate activity were regulated.” See Lopez, 

514 U.S. at 561

.

     The second factor is whether the regulated activity has an

express jurisdictional element limiting its reach to activities

with a connection to interstate commerce.    The parties agree that

there is no such jurisdictional element in Title II.    Plaintiffs

and the Government argue that this is not particularly telling

because Title II so clearly regulates interstate commerce.    As

discussed above, this is not correct.    Congress made no explicit


                                 55
restriction on Title II’s applicability to services and benefits

that are economic in nature and substantially affect interstate

commerce.18

     The third factor is whether the legislative history contains

express congressional findings regarding the regulated activities

effects upon interstate commerce.    Both Plaintiffs and the

Government cite to ample congressional findings indicating that

the purpose of the ADA is to regulate interstate commerce.     They

also cite to findings that disability discrimination leads to

“unnecessary expenses resulting from dependency and non-

productivity.”   See 

42 U.S.C. § 12101

(a)(9).   However, as Texas

points out, they cite to no Congressional findings that connect

disability discrimination in the providing of social services to

interstate commerce.   In fact, the findings they cite relate to

employment discrimination.   See, e.g., S. Rep. No. 101-116, at 17

(reprinted in 1990 U.S.C.C.A.N. 267, 325-26) (“Certainly, the

elimination of employment discrimination and the main streaming

of persons with disabilities will result in more persons with

disabilities working . . . .”) (emphasis added).

     Considering most of the ADA, as a general proposition,

regulates commerce, congressional findings that the ADA’s general

purpose is to regulate commerce are not terribly helpful, and


     18
       In contrast, Congress did limit the applicability of
Title III’s regulation of public accommodations to those involved
in commerce. See 

42 U.S.C. § 12181

.

                                56
findings related to employment discrimination are wholly

irrelevant.   Although it would be too much to say that Congress

made no relevant findings that can be interpreted as connecting

Title II to interstate commerce, it is safe to say that

Plaintiffs and the Government have highlighted no “legislative

history contain[ing] express congressional findings regarding

[Title II’s] effects upon interstate commerce.”    See Morrison,

529 U.S. at 612

 (emphasis added).    The Supreme Court emphasized

the need for express findings because the purpose of reviewing

these findings is to “enable us to evaluate the legislative

judgment that the activity in question substantially affects

interstate commerce, even though no such substantial effect is

visible to the naked eye.”   Morrison, 

529 U.S. at 612

.

Plaintiffs and the Government highlight no findings that negate

the obvious, that Title II does not regulate economic activity.

     The fourth and final factor is whether the link between the

regulated activity and interstate commerce is too attenuated to

be considered a regulation of interstate commerce.    This factor

relates to whether the regulated economic activity substantially

affects interstate commerce and is only applicable if Congress is

regulating economic activity.   The Supreme Court did not apply

this factor when striking down the statutes in Lopez and Morrison

and it is also inapplicable in this case.

     Title II of the ADA is not permissible Commerce Clause


                                57
legislation to the extent that it regulates states’ decisions

regarding who will participate in or receive the benefits of

state entitlement programs.

                                C

     I do not believe that Congress acted within its powers under

the Commerce Clause in enacting Title II of the ADA.   I further

do not believe that it acted within its authority under § 5 of

the Fourteenth Amendment as applied in this case. Consequently, I

do not believe that Title II is valid federal law to the extent

that it regulates Texas’s decisions regarding participation in

the programs at issue in this case, and I do not believe that

Plaintiffs have alleged a continuing violation of valid federal

law.19    Thus, I would reverse the district court’s ruling as to

Title II and hold that Texas has Eleventh Amendment immunity from

Plaintiffs’ Title II claim.

                               III

     Texas asserts that § 504 of the Rehabilitation Act is

invalid Spending Clause legislation.20   It argues that because


     19
       Because I find that Title II was enacted beyond
Congress’s legislative authority I do not consider Texas’s
contention that it violates the Tenth Amendment.
     20
       Whether Texas may have already waived its sovereign
immunity to suit under § 504, or whether Congress may have
already abrogated it under its § 5 authority are both questions
presently being considered by this Court en banc. See Pace v.
Bogalusa City Sch. Bd., 

325 F.3d 609

 (5th Cir. 2003), reh’g
granted en banc, 

339 F.3d 348

 (5th Cir. 2003); Johnson v.
Louisiana Dep’t of Educ., 

330 F.3d 362

 (5th Cir. 2003), reh’g

                                58
conditions on federal funding must be “related” to the funding

received by   states Congress cannot broadly place conditions on

all federal funding accepted by states; it must instead directly

tie its conditions to the specific funding received by the state.

Texas thus argues that because it “receive[s] no § 504 funding”21

its receipt of federal Medicaid funding cannot constitutionally

be conditioned by § 504.   I disagree.

     Under the Spending Clause, “Congress may attach conditions

on the receipt of federal funds . . .[and may] condition[]

receipt of federal moneys upon compliance by the recipient with

federal statutory and administrative directives.”     South Dakota

v. Dole, 

483 U.S. 203, 206

, 

107 S. Ct. 2793

 (1987).    Congress may

condition the receipt of federal monies if the conditions: 1) are

in “the general welfare”; 2) were “unambiguously”communicated

such that “the States [are] . . . cognizant of the consequences

of” receiving the federal funding; 3) are related “to the federal

interest in particular national projects or programs”; and, 4)


granted en banc, 

343 F.3d 732

 (5th Cir. 2003); Miller v. Texas
Tech, 

330 F.3d 691

 (5th Cir 2003), reh’g granted en banc, 

342 F.3d 563

 (5th Cir. 2003). I do not express an opinion on these
questions. Assuming that Texas has either waived its immunity or
Congress has abrogated it, this challenge to the
constitutionality of § 504 is beyond the scope of our
jurisdiction in this appeal. See discussion supra. However, as
these questions are as of yet unresolved by this Court and as I
believe Texas’s constitutional challenge fails, I will address
the merits of its argument.
     21
       More accurately, Texas receives no funding under the
Rehabilitation Act.

                                59
are not otherwise barred by the Constitution.   Id. at 207-08.

     Section 504 of the Rehabilitation Act provides that: “No

otherwise qualified individual with a disability in the United

States . . . shall, solely by reason of her or his disability, be

excluded from the participation in, be denied the benefits of, or

be subjected to discrimination under any program or activity

receiving Federal financial assistance . . . .” 

29 U.S.C. § 794

(a).    It specifically applies to state entities that receive

federal funding.   See 

29 U.S.C. § 794

(b)(1).

     Texas concedes receiving federal financial assistance under

the Medicaid Act to operate the state programs at issue in this

case.   It also implicitly concedes that it was aware of § 504 and

its restrictions at all times it was receiving federal monies.

Therefore, Texas does not argue that it was unaware that its

receipt of federal money was governed by § 504, rather it argues

that because the restrictions were not specifically tied to its

Medicaid funding they were not part of its “contract” with the

federal government.   See Barnes v. Gorman, 

536 U.S. 181, 186

, 

122 S. Ct. 2097

 (2002) (comparing Congress’s conditions on the

receipt of federal money to a “contract” between the states and

the federal government).

     Texas incorrectly concludes that Congress may not generally

condition the receipt of federal monies.   Title VI of the Civil

Rights Act of 1964, using language almost identical to that found


                                60
in § 504, requires that no person on the basis of “race, color,

or national origin [shall] be excluded from participation in, be

denied the benefits of, or be subjected to discrimination under

any program or activity receiving Federal financial assistance.”

42 U.S.C. § 2000d; see Barnes, 

536 U.S. at 186

 (noting the Title

VI and § 504 are “coextensive”).    The Supreme Court has already

held that Title VI is valid Spending Clause legislation.     See

Guardians Ass’n v. Civil Service Comm’n of City of New York, 

463 U.S. 582, 598-99

, 

103 S. Ct. 3221

 (1983) (“I note first that

Title VI is spending-power legislation.”).    The Court reasoned

that the conditions in Title VI were like any other conditions

Congress could have made on the receipt of federal money.     See

id. at 599

 (“Title VI imposes no obligations but simply extends

an option that potential recipients are free to accept or

reject.”) (internal quotations omitted).   It did not appear to

see a distinction between conditions specific to a particular

allocation of federal money and those generally applicable to all

federal monies available to states. See 

id.

    In fact, it

concluded that Congress’s purposes in enacting Title VI were

related to the spending it provided.    See 

id.

 (“Title VI rests on

the principle that taxpayers’ money, which is collected without

discrimination, shall be spent without discrimination.”).

     It is no different with § 504.    In § 504, Congress connects

its funding of state-run programs with its prohibition on


                               61
discrimination regarding participation in those programs.

Congress does not seek to generally regulate the activities of

the recipient state entities, or to regulate their activities

unrelated to the use of   federal funds.    Instead, Congress seeks

to control how the federal monies it provides are spent.

Specifically, it seeks to ensure that the federal monies are not

used to fund state programs that discriminate against the

disabled.   Congress’s purpose and its conditions on the receipt

of federal money are directly related.     The fact that Congress

sought to efficiently apply these conditions to all federal

funding in one legislative act rather than in multiple ones has

no effect on the constitutionality of its restrictions.

     Section 504 of the Rehabilitation Act is valid Spending

Clause legislation.   Consequently,   the Plaintiffs seek to

vindicate valid federal rights and have alleged an ongoing

violation of valid federal law under Ex parte Young.     I would

therefore affirm the district court’s ruling denying Texas’s

claim of Eleventh Amendment immunity.

                                IV

     Texas argues that Plaintiffs cannot bring a Young suit under

the Medicaid Act because the act does not provide an individual

right of action.   See Gonzaga v. Dole, 

536 U.S. 273, 282

, 

122 S. Ct. 2268

 (2002) (“[A] plaintiff must assert the violation of a

federal right, not merely a violation of federal law.”); Blessing


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v. Freestone, 

520 U.S. 329, 340

, 

117 S. Ct. 1353

 (1997).      And

further contends that because the statute provides no cause of

action the Plaintiffs have not properly alleged a Young suit.

      Texas does not challenge the constitutionality of the

Medicaid Act or its status as valid federal law.   Instead Texas

questions whether Congress has provided a means of seeking

redress for violations of the act through private causes of

action in federal courts.   The question of whether Congress

created such a cause of action goes beyond the “inquiry into

whether the complaint alleges an ongoing violation of federal law

and seeks relief properly characterized as prospective.”      See

Verizon, 

535 U.S. at 645

.   Texas does not challenge Congress’s

authority to create such a cause of action, but only questions

whether Congress exercised that authority with respect to the

Medicaid Act.   Texas’s contention therefore does not address the

balance between the supremacy of federal law and states’ right to

immunity from suit.   Rather, it assumes the validity of the

federal law underlying the Plaintiff’s Young suit and questions

whether federal courts, as a function of federal statutory law,

can provide relief.   This is a merits question that is beyond the

scope of this appeal. See 

id. at 646

.

                                  V

      To sustain a Young suit a plaintiff must seek to “vindicate

the   supreme   authority   of   federal   law.”   Therefore,       the


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constitutionality of the federal law underlying a plaintiff’s

Young suit is properly considered as part of an interlocutory

review of a district court’s refusal to grant a state Eleventh

Amendment   immunity.     Title     II,    as    a   whole,   is   impermissible

Commerce    Clause   legislation.         It    is   also   impermissible   §   5

legislation as-applied to this case.             Therefore, I do not believe

that the Plaintiffs Young suit under Title II can be sustained and

Texas is entitled to Eleventh Amendment immunity.                   I, however,

believe that the Rehabilitation Act is valid spending clause

legislation and that the Plaintiffs Young suit under this statue is

proper.     Finally, I believe that Texas’s contention that the

Medicaid Act does not provide an individual cause of action is

beyond the scope of this appeal.                I thus concur in part, and

dissent in part.




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