CENTRAL VIRGINIA COMMUNITY COLLEGE et al. v. KATZ, LIQUIDATING SUPERVISOR FOR WALLACE’S BOOKSTORES, INC.

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Syllabus
CENTRAL VIRGINIA COMMUNITY COLLEGE et al.
v. KATZ, LIQUIDATING SUPERVISOR FOR
WALLACE’S BOOKSTORES, INC.
certiorari to the united states court of appeals for
the sixth circuit
No. 04–885. Argued October 31, 2005—Decided January 23, 2006
The Bankruptcy Clause, Art. I, § 8, cl. 4, empowers Congress to establish
“uniform Laws on the subject of Bankruptcies throughout the United
States.” In Tennessee Student Assistance Corporation v. Hood, 541
U. S. 440, this Court, without reaching the question whether the Clause
gives Congress the authority to abrogate States’ immunity from private
suits, see id., at 443, upheld the application of the Bankruptcy Code, 11
U. S. C. § 101 et seq., to proceedings initiated by a debtor against a state
agency to determine the dischargeability of a student loan debt, see
541 U. S., at 451. In this case, a proceeding commenced by respondent
Bankruptcy Trustee under §§ 547(b) and 550(a) to avoid and recover
alleged preferential transfers by the debtor to petitioner state agencies,
the agencies claim that the proceeding is barred by sovereign immunity.
The Bankruptcy Court denied petitioners’ motions to dismiss on that
ground, and the District Court and the Sixth Circuit affirmed based on
the Circuit’s prior determination that Congress has abrogated the
States’ sovereign immunity in bankruptcy proceedings.
Held: A bankruptcy trustee’s proceeding to set aside the debtor’s prefer
ential transfers to state agencies is not barred by sovereign immunity.
Pp. 361–379.
(a) The Bankruptcy Clause’s history, the reasons it was adopted, and
the legislation proposed and enacted under it immediately following rat
ification demonstrate that it was intended not just as a grant of legisla
tive authority to Congress, but also to authorize limited subordination
of state sovereign immunity in the bankruptcy arena. Although state
ments in Seminole Tribe of Fla. v. Florida, 517 U. S. 44, reflect an
assumption that that case’s holding would apply to the Clause, careful
study and reflection convince this Court that that assumption was erro
neous. The Court is not bound to follow its dicta in a prior case in
which the point at issue was not fully debated. Cohens v. Virginia, 6
Wheat. 264, 399–400. Pp. 362–363.
(b) States, whether or not they choose to participate, are bound by a
bankruptcy court’s order discharging the debtor no less than are other
creditors. Hood, 541 U. S., at 448. Petitioners here, like the state

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Syllabus
agency parties in Hood, have conceded as much. See id., at 449. The
history of discharges in bankruptcy proceedings demonstrates that
these concessions, and Hood’s holding, are correct. The Framers’ pri
mary goal in adopting the Clause was to prevent competing sovereigns’
interference with discharge: The patchwork of wildly divergent and un
coordinated insolvency and bankruptcy laws that existed in the Ameri
can Colonies resulted in one jurisdiction’s imprisoning debtors dis
charged (from prison and of their debts) in and by another jurisdiction.
The absence of extensive debate at the Convention over the Clause’s
text or its insertion into the Constitution indicates that there was gen
eral agreement on the importance of authorizing a uniform federal re
sponse to the problems and injustice that system created. Pp. 363–369.
(c) Bankruptcy jurisdiction, as understood today and at the framing,
is principally in rem. See, e. g., Hood, 541 U. S., at 447. It thus does
not implicate States’ sovereignty to nearly the same degree as other
kinds of jurisdiction. See id., at 450–451. The Framers would have
understood the Bankruptcy Clause’s grant of power to enact laws on the
entire “subject of Bankruptcies” to include laws providing, in certain
limited respects, for more than simple adjudications of rights in the res.
Courts adjudicating disputes concerning bankrupts’ estates historically
have had the power to issue ancillary orders enforcing their in rem
adjudications. See, e. g., id., at 455–456. The interplay between in
rem adjudications and orders ancillary thereto is also evident in this
case. Whether or not actions such as this are properly characterized
as in rem, those who crafted the Bankruptcy Clause would have under
stood it to give Congress the power to authorize courts to avoid prefer
ential transfers and to recover the transferred property. Pp. 369–373.
(d) Insofar as orders ancillary to the bankruptcy courts’ in rem juris
diction, like orders directing turnover of preferential transfers, impli
cate States’ sovereign immunity from suit, the States agreed in the plan
of the Constitutional Convention not to assert that immunity. That is
evidenced not only by the Bankruptcy Clause’s history, but also by legis
lation considered and enacted in the immediate wake of the Constitu
tion’s ratification. For example, the Bankruptcy Act of 1800 specifically
granted federal courts habeas authority to release debtors from state
prisons at a time when state sovereign immunity was preeminent among
the Nation’s concerns, yet there appears to be no record of any objection
to that grant based on an infringement of sovereign immunity. This
history demonstrates that the power to enact bankruptcy legislation
was understood to carry with it the power to subordinate state sover
eignty, albeit within a limited sphere. Pp. 373–378.
(e) The Court need not consider the question Hood left open: whether
Congress’ attempt to “abrogat[e]” state sovereign immunity in 11

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U. S. C. § 106(a) is valid. The relevant question is not abrogation, but
whether Congress’ determination that States should be amenable to
preferential transfer proceedings is within the scope of its power to
enact “Laws on the subject of Bankruptcies.” Beyond peradventure, it
is. Congress’ power, at its option, either to treat States in the same
way as other creditors or exempt them from the operation of bankruptcy
laws arises from the Clause itself; the relevant “abrogation” is the one
effected in the plan of the Convention, not by statute. Pp. 378–379.
106 Fed. Appx. 341, affirmed.
Stevens, J., delivered the opinion of the Court, in which O’Connor,
Souter, Ginsburg, and Breyer, JJ., joined. Thomas, J., filed a dissent
ing opinion, in which Roberts, C. J., and Scalia and Kennedy, JJ.,
joined, post, p. 379.
William E. Thro, State Solicitor General of Virginia, ar
gued the cause for petitioners. With him on the briefs were
Judith Williams Jagdmann, Attorney General, Bernard L.
McNamee II, Chief Deputy Attorney General, Maureen
Riley Matsen, Deputy Attorney General, Brian J. Goodman
and Cynthia H. Norwood, Assistant Attorneys General, and
Matthew M. Cobb, Carla R. Collins, Eric A. Gregory, Joel
C. Hoppe, Courtney M. Malveaux, Valerie L. Myers, A.
Cameron O’Brion, Ronald N. Regnery, D. Mathias Roussy,
Jr., and William R. Sievers, Associate State Solicitors
General.
Kim Martin Lewis argued the cause for respondent.
With her on the brief were Jon L. Fleischaker, Mark A.
Vander Laan, Jeremy S. Rogers, and G. Eric Brunstad, Jr.*
*Briefs of amici curiae urging reversal were filed for the State of Ohio
et al. by Jim Petro, Attorney General of Ohio, Douglas R. Cole, State
Solicitor, and Elise W. Porter, Assistant Solicitor, and by the Attorneys
General for their respective States as follows: Troy King of Alabama,
David W. Ma´ rquez of Alaska, Terry Goddard of Arizona, Mike Beebe of
Arkansas, Bill Lockyer of California, John W. Suthers of Colorado, Rich
ard Blumenthal of Connecticut, M. Jane Brady of Delaware, Charles J.
Crist, Jr., of Florida, Thurbert E. Baker of Georgia, Mark J. Bennett of
Hawaii, Lawrence G. Wasden of Idaho, Lisa Madigan of Illinois, Steve
Carter of Indiana, Thomas J. Miller of Iowa, Phill Kline of Kansas, Greg
ory D. Stumbo of Kentucky, Charles C. Foti, Jr., of Louisiana, G. Steven

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Opinion of the Court
Justice Stevens delivered the opinion of the Court.
Article I, § 8, cl. 4, of the Constitution provides that Con
gress shall have the power to establish “uniform Laws on
the subject of Bankruptcies throughout the United States.”
In Tennessee Student Assistance Corporation v. Hood,
541 U. S. 440 (2004), we granted certiorari to determine
whether this Clause gives Congress the authority to abro
gate States’ immunity from private suits. See id., at 443.
Without reaching that question, we upheld the application of
the Bankruptcy Code to proceedings initiated by a debtor
against a state agency to determine the dischargeability of a
student loan debt. See id., at 451. In this case we consider
whether a proceeding initiated by a bankruptcy trustee to
set aside preferential transfers by the debtor to state agen
cies is barred by sovereign immunity. Relying in part on
our reasoning in Hood, we reject the sovereign immunity
defense advanced by the state agencies.
Rowe of Maine, J. Joseph Curran, Jr., of Maryland, Thomas F. Reilly of
Massachusetts, Michael A. Cox of Michigan, Mike Hatch of Minnesota,
Jim Hood of Mississippi, Jeremiah W. (Jay) Nixon of Missouri, Mike Mc-
Grath of Montana, Jon Bruning of Nebraska, Brian Sandoval of Nevada,
Kelly A. Ayotte of New Hampshire, Peter C. Harvey of New Jersey, Patri
cia A. Madrid of New Mexico, Eliot Spitzer of New York, Roy Cooper of
North Carolina, Wayne Stenehjem of North Dakota, W. A. Drew Edmond
son of Oklahoma, Hardy Myers of Oregon, Thomas W. Corbett, Jr., of
Pennsylvania, Patrick C. Lynch of Rhode Island, Henry Dargan McMas
ter of South Carolina, Lawrence E. Long of South Dakota, Paul G. Sum
mers of Tennessee, Greg Abbott of Texas, Mark L. Shurtleff of Utah, Wil
liam H. Sorrell of Vermont, Rob McKenna of Washington, Darrell V.
McGraw, Jr., of West Virginia, Peggy A. Lautenschlager of Wisconsin, and
Patrick J. Crank of Wyoming; for the American Association of State Col
leges and Universities et al. by Robert A. Bartlett and Lawrence S. Ebner;
and for the National Conference of State Legislatures et al. by Richard
Ruda and James I. Crowley.
Briefs of amici curiae urging affirmance were filed for the National
Association of Bankruptcy Trustees by Martin P. Sheehan; and for Susan
Block-Lieb et al. by Susan M. Freeman and Richard Lieb.
Brady C. Williamson filed a brief of amicus curiae for Bruce H. Mann.

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I
Petitioners are Virginia institutions of higher education
that are considered “arm[s] of the State” entitled to sover
eign immunity. See, e. g., Alden v. Maine, 527 U. S. 706, 756
(1999) (observing that only arms of the State can assert the
State’s immunity). Wallace’s Bookstores, Inc., did business
with petitioners before it filed a petition for relief under
chapter 11 of the Bankruptcy Code, 11 U. S. C. § 101 et seq.
(2000 ed. and Supp. III), in the United States Bankruptcy
Court for the Eastern District of Kentucky. Respondent,
Bernard Katz, is the court-appointed liquidating supervisor
of the bankrupt estate. He has commenced proceedings in
the Bankruptcy Court pursuant to §§ 547(b) and 550(a) to
avoid and recover alleged preferential transfers to each of
the petitioners made by the debtor when it was insolvent.1
Petitioners’ motions to dismiss those proceedings on the
basis of sovereign immunity were denied by the Bank
ruptcy Court.
1 A preferential transfer is defined as “any transfer of an interest of the
debtor in property—
“(1) to or for the benefit of a creditor;
“(2) for or on account of an antecedent debt owed by the debtor before
such transfer was made;
“(3) made while the debtor was insolvent;
“(4) made—
“(A) on or within 90 days before the date of the filing of the petition; or
“(B) between ninety days and one year before the date of the filing of
the petition, if such creditor at the time of such transfer was an insider;
and
“(5) that enables such creditor to receive more than such creditor would
receive if—
“(A) the case were a case under chapter 7 of this title;
“(B) the transfer had not been made; and
“(C) such creditor received payment of such debt to the extent provided
by the provisions of this title.” 11 U. S. C. § 547(b).
Respondent also instituted adversary proceedings against some of the
petitioners to collect accounts receivable. He has, however, filed a letter
with this Court indicating his intent not to pursue those claims further.

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The denial was affirmed by the District Court and the
Court of Appeals for the Sixth Circuit, judgt. order re
ported at 106 Fed. Appx. 341 (2004), on the authority of the
Sixth Circuit’s prior determination that Congress has abro
gated the States’ sovereign immunity in bankruptcy pro
ceedings. See Hood v. Tennessee Student Assistance Corpo
ration, 319 F. 3d 755 (2003). We granted certiorari, 544
U. S. 960 (2005), to consider the question left open by our
opinion in Hood: whether Congress’ attempt to abrogate
state sovereign immunity in 11 U. S. C. § 106(a) 2 is valid. As
2 Section 106(a), as amended in 1994, provides in part as follows:
“Notwithstanding an assertion of sovereign immunity, sovereign immu
nity is abrogated as to a governmental unit . . . with respect to the
following:
“(1) Sections 105, 106, 107, 108, 303, 346, 362, 363, 364, 365, 366, 502, 503,
505, 506, 510, 522, 523, 524, 525, 542, 543, 544, 545, 546, 547, 548, 549, 550,
551, 552, 553, 722, 724, 726, 728, 744, 749, 764, 901, 922, 926, 928, 929, 944,
1107, 1141, 1142, 1143, 1146, 1201, 1203, 1205, 1206, 1227, 1231, 1301, 1303,
1305, and 1327 of this title.
“(2) The court may hear and determine any issue arising with respect
to the application of such sections to governmental units.
“(3) The court may issue against a governmental unit an order, process,
or judgment under such sections of the Federal Rules of Bankruptcy Pro
cedure, including an order or judgment awarding a money recovery, but
not including an award of punitive damages. . . . ”
The term “governmental unit” is defined to include a “State,” a “munici
pality,” and a “department, agency, or instrumentality of . . . a State.”
§ 101(27).
The above-quoted version of § 106(a) is the product of revisions made in
the wake of some of our precedents. The Bankruptcy Reform Act of 1978,
92 Stat. 2549, contained a provision indicating only that “governmental
unit[s],” defined to include States, were deemed to have “waived sovereign
immunity” with respect to certain proceedings in bankruptcy and to be
bound by a court’s determinations under certain provisions of the Act
“notwithstanding any assertion of sovereign immunity.” Id., at 2555–
2556. This Court’s decisions in Hoffman v. Connecticut Dept. of Income
Maintenance, 492 U. S. 96 (1989), and United States v. Nordic Village,
Inc., 503 U. S. 30 (1992), which held that Congress had failed to make
sufficiently clear in the predecessor to § 106(a) its intent either to “abro
gate” state sovereign immunity or to waive the Federal Government’s

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we shall explain, however, we are persuaded that the enact
ment of that provision was not necessary to authorize the
Bankruptcy Court’s jurisdiction over these preference avoid
ance proceedings.
Bankruptcy jurisdiction, at its core, is in rem. See Gard
ner v. New Jersey, 329 U. S. 565, 574 (1947) (“The whole proc
ess of proof, allowance, and distribution is, shortly speaking,
an adjudication of interests claimed in a res”). As we noted
in Hood, it does not implicate States’ sovereignty to nearly
the same degree as other kinds of jurisdiction. See 541
U. S., at 450–451 (citing admiralty and bankruptcy cases).
That was as true in the 18th century as it is today. Then,
as now, the jurisdiction of courts adjudicating rights in the
bankrupt estate included the power to issue compulsory or
ders to facilitate the administration and distribution of the
res.
It is appropriate to presume that the Framers of the Con
stitution were familiar with the contemporary legal context
when they adopted the Bankruptcy Clause 3—a provision
which, as we explain in Part IV, infra, reflects the States’
acquiescence in a grant of congressional power to subordi
nate to the pressing goal of harmonizing bankruptcy law sov
ereign immunity defenses that might have been asserted in
bankruptcy proceedings. The history of the Bankruptcy
Clause, the reasons it was inserted in the Constitution, and
immunity, see 492 U. S., at 101; 503 U. S., at 39, prompted Congress in
1994 to enact the text of § 106(a) now in force. See generally Gibson,
Congressional Response to Hoffman and Nordic Village: Amended Sec
tion 106 and Sovereign Immunity, 69 Am. Bankr. L. J. 311 (1995).
3 In Cannon v. University of Chicago, 441 U. S. 677, 699 (1979), we en
dorsed the presumption “that Congress was thoroughly familiar” with
contemporary law when it enacted Title IX of the Civil Rights Act of 1964.
It is equally proper to presume that the delegates to the Constitutional
Convention were fully aware of the potential for injustice, discussed in
Part II, infra, presented by the nonuniform state laws authorizing impris
onment as a remedy for the nonpayment of an insolvent’s debts.

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the legislation both proposed and enacted under its auspices
immediately following ratification of the Constitution demon
strate that it was intended not just as a grant of legislative
authority to Congress, but also to authorize limited subordi
nation of state sovereign immunity in the bankruptcy arena.
Foremost on the minds of those who adopted the Clause were
the intractable problems, not to mention the injustice, cre
ated by one State’s imprisoning of debtors who had been dis
charged (from prison and of their debts) in and by another
State. As discussed below, to remedy this problem, the
very first Congresses considered, and the Sixth Congress
enacted, bankruptcy legislation authorizing federal courts to,
among other things, issue writs of habeas corpus directed at
state officials ordering the release of debtors from state
prisons.
We acknowledge that statements in both the majority and
the dissenting opinions in Seminole Tribe of Fla. v. Florida,
517 U. S. 44 (1996), reflected an assumption that the holding
in that case would apply to the Bankruptcy Clause. See also
Hoffman v. Connecticut Dept. of Income Maintenance, 492
U. S. 96, 105 (1989) (O’Connor, J., concurring). Careful
study and reflection have convinced us, however, that that
assumption was erroneous. For the reasons stated by Chief
Justice Marshall in Cohens v. Virginia, 6 Wheat. 264 (1821),
we are not bound to follow our dicta in a prior case in which
the point now at issue was not fully debated. See id., at
399–400 (“It is a maxim not to be disregarded, that general
expressions, in every opinion, are to be taken in connection
with the case in which those expressions are used. If they
go beyond the case, they may be respected, but ought not to
control the judgment in a subsequent suit when the very
point is presented for decision”).
II
Critical features of every bankruptcy proceeding are the
exercise of exclusive jurisdiction over all of the debtor’s

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property, the equitable distribution of that property among
the debtor’s creditors, and the ultimate discharge that gives
the debtor a “fresh start” by releasing him, her, or it from
further liability for old debts. See, e. g., Local Loan Co. v.
Hunt, 292 U. S. 234, 244 (1934). “Under our longstanding
precedent, States, whether or not they choose to partici
pate in the proceeding, are bound by a bankruptcy court’s
discharge order no less than other creditors.” Hood, 541
U. S., at 448. Petitioners here, like the state agencies that
were parties in Hood, have conceded as much. See id., at
449 (noting concession that “States are generally bound
by a bankruptcy court’s discharge order”); Tr. of Oral Arg.
8–9.
The history of discharges in bankruptcy proceedings dem
onstrates that the state agencies’ concessions, and Hood’s
holding, are correct. The term “discharge” historically had
a dual meaning; it referred to both release of debts and re
lease of the debtor from prison. Indeed, the earliest Eng
lish statutes governing bankruptcy and insolvency author
ized discharges of persons, not debts. One statute enacted
in 1649 was entitled “An Act for discharging Poor Prisoners
unable to satisfie their Creditors.” 2 Acts and Ordinances
of the Interregnum, 1642–1660, pp. 240–241 (C. Firth & R.
Rait eds. 1911). The stated purpose of the Act was to “Dis
charge . . . the person of [the] Debtor” “of and from his or
her Imprisonment.” Ibid. Not until 1705 did the English
Parliament extend the discharge (and then only for traders
and merchants) to include release of debts. See 4 Ann.,
ch. 17, § 7, 11 Statutes at Large 165 (D. Pickering ed. 1764)
(providing that upon compliance with the statute, “all and
every person and persons so becoming bankrupt . . . shall be
discharged from all debts by him, her, or them due and owing
at the time that he, she, or they did become bankrupt”); see
also McCoid, Discharge: The Most Important Development
in Bankruptcy History, 70 Am. Bankr. L. J. 163, 167 (1996).

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Well into the 18th century, imprisonment for debt was still
ubiquitous in England 4 and the American Colonies. Bank
ruptcy and insolvency laws remained as much concerned
with ensuring full satisfaction of creditors (and, relatedly,
preventing debtors’ flight to parts unknown 5) as with secur
ing new beginnings for debtors. Illustrative of bankruptcy
laws’ harsh treatment of debtors during this period was that
debtors often fared worse than common criminals in prison;
unfortunate insolvents, unlike criminals, were forced to pro
vide their own food, fuel, and clothing while behind bars.
See B. Mann, Republic of Debtors: Bankruptcy in the Age of
American Independence 78–108 (2002).
Common as imprisonment itself was, the American Colo
nies, and later the several States, had wildly divergent
schemes for discharging debtors and their debts. Id., at 79
(“The only consistency among debt laws in the eighteenth
century was that every colony, and later every state, permit
ted imprisonment for debt—most on mesne process, and all
on execution of a judgment”). At least four jurisdictions of
fered relief through private Acts of their legislatures. See
Railway Labor Executives’ Assn. v. Gibbons, 455 U. S. 457,
472 (1982). Those Acts released debtors from prison upon
surrender of their property, and many coupled the release
from prison with a discharge of debts. Other jurisdictions
enacted general laws providing for release from prison and,
in a few places, discharge of debt. Others still granted re
4 Imprisonment for debt was not abolished in England until 1869, and
then only subject to certain exceptions. See Debtors Act, 1869, 32 & 33
Vict., ch. 62, § 4; see also Cohen, The History of Imprisonment for Debt
and its Relation to the Development of Discharge in Bankruptcy, 3 J. Legal
Hist. 153, 164 (1982).
5 The legislation widely acknowledged to be the first English bankruptcy
statute, 34 & 35 Hen. 8, ch. 4, § 1 (1542), contained a provision explaining
that the statute was needed to deal with the growing number of debtors
who, after “craftily obtaining into their Hands great Substance of other
Mens [sic] Goods, do suddenly flee to Parts unknown.”

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lease from prison, but only in exchange for indentured servi
tude. Some jurisdictions provided no relief at all for the
debtor. See generally P. Coleman, Debtors and Creditors in
America: Insolvency, Imprisonment for Debt, and Bank
ruptcy, 1607–1900 (1999).6
The difficulties posed by this patchwork of insolvency and
bankruptcy laws were peculiar to the American experience.
In England, where there was only one sovereign, a single
discharge could protect the debtor from his jailer and his
creditors. As two cases—one litigated before the Constitu
tional Convention in Philadelphia and one litigated after it—
demonstrate, however, the uncoordinated actions of multiple
sovereigns, each laying claim to the debtor’s body and effects
according to different rules, rendered impossible so neat a
solution on this side of the Atlantic.
In the first case, James v. Allen, 1 Dall. 188 (C. P. Phila.
Cty. 1786), Jared Ingersoll, an attorney who a year later
would become a delegate to the Philadelphia Convention,7
represented a Pennsylvania creditor seeking recovery from
a debtor who had been released from prison in New Jersey.
Shortly after his release, the debtor traveled to Pennsylva
nia, where he was arrested for nonpayment of the Pennsylva
6 “At the time of the Revolution, only three of the thirteen colonies . . .
had laws discharging insolvents of their debts. No two of these relief
systems were alike in anything but spirit. In four of the other ten colo
nies, insolvency legislation was either never enacted or, if enacted, never
went into effect, and in the remaining six colonies, full relief was available
only for scattered, brief periods, usually on an ad hoc basis to named insol
vents.” Coleman, Debtors and Creditors in America, at 14.
7 Ingersoll was admitted to the Philadelphia bar in 1773 and elected a
member of the Continental Congress in 1780. After serving as a delegate
to the Constitutional Convention, he became a member of the Philadelphia
Common Council. He served as attorney general of Pennsylvania from
1790 to 1799 and again from 1811 to 1817. From March 1821 until his
death in 1822 he served as a judge in the District Court for the City and
County of Philadelphia. Among the cases he litigated before this Court
was Chisholm v. Georgia, 2 Dall. 419 (1793)—for the State of Georgia, see
ibid. See also 9 Dictionary of American Biography 468–469 (1932).

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nia debt. In seeking release from the Pennsylvania prison,
he argued that his debt had been discharged by the New
Jersey court. Ingersoll responded that the order granting
relief under New Jersey’s insolvency laws “only discharged
the person of the debtor from arrest within the State of New
Jersey.” Id., at 190. The court agreed: Whatever effect the
order might have had in New Jersey, the court said, it “goes
no further than to discharge [the debtor] from his imprison
ment in the Gaol of Essex County in the State of New Jersey;
which, if the fullest obedience were paid to it, could not au
thorize a subsequent discharge from imprisonment in an
other Gaol, in another State.” Id., at 192. The court fur
ther observed that “[i]nsolvent laws subsist in every State
in the Union, and are probably all different from each
other . . . . Even the Bankrupt Laws of England, while we
were the subjects of that country, were never supposed to
extend here, so as to exempt the persons of the Bankrupts
from being arrested.” Id., at 191.
In the second case, Millar v. Hall, 1 Dall. 229 (Pa. 1788),
which was decided the year after the Philadelphia Conven
tion, Ingersoll found himself arguing against the principle
announced in James. His client, a debtor named Hall, had
been “discharged under an insolvent law of the state of
Maryland, which is in the nature of a general bankrupt[cy]
law.” 1 Dall., at 231. Prior to his discharge, Hall had in
curred a debt to a Pennsylvanian named Millar. Hall ne
glected to mention that debt in his schedule of creditors pre
sented to the Maryland court, or to personally notify Millar
of the looming discharge. Following the Maryland court’s
order, Hall traveled to Pennsylvania and was promptly ar
rested for the unpaid debt to Millar.
Responding to Millar’s counsel’s argument that the holding
of James controlled, Ingersoll urged adoption of a rule that
“the discharge of the Defendant in one state ought to be
sufficient to discharge [a debtor] in every state.” 1 Dall.,
at 231. Absent such a rule, Ingersoll continued, “perpetual

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imprisonment must be the lot of every man who fails; and all
hope of retrieving his losses by honest and industrious pur
suits, will be cut off from the unfortunate bankrupt.” Ibid.
The court accepted this argument. Allowing a creditor to
execute “upon [a debtor’s] person out of the state in which
he has been discharged,” the court explained, “would be giv
ing a superiority to some creditors, and affording them a
double satisfaction—to wit, a proportionable dividend of his
property there, and the imprisonment of his person here.”
Id., at 232. Indeed, the debtor having already been obliged
to surrender all of his effects, “to permit the taking [of] his
person here, would be to attempt to compel him to perform
an impossibility, that is, to pay a debt after he has been
deprived of every means of payment,—an attempt which
would, at least, amount to perpetual imprisonment, unless
the benevolence of his friends should interfere to discharge
[his] account.” Ibid.
These two cases illustrate the backdrop against which the
Bankruptcy Clause was adopted. In both James and Mil
lar, the debtors argued that the earlier discharge should be
given preclusive effect pursuant to the Full Faith and Credit
Clause of the Articles of Confederation. See James, 1 Dall.,
at 190; Millar, 1 Dall., at 231. That possibility was the sub
ject of discussion at the Constitutional Convention when a
proposal to encompass legislative Acts, and insolvency laws
in particular, within the coverage of the Full Faith and
Credit Clause of the Constitution was committed to the Com
mittee of Detail 8 together with a proposal “ ‘[t]o establish
uniform laws upon the subject of bankruptcies, and respect
ing the damages arising on the protest of foreign bills of
exchange.’ ” See Nadelmann, On the Origin of the Bank
ruptcy Clause, 1 Am. J. Legal Hist. 215, 216–217, 219 (1957);
see also Plank, The Constitutional Limits of Bankruptcy, 63
8 The Committee of Detail was created by the Convention on July 25,
1787, to prepare a draft text of the Constitution based on delegates’
proposals.

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Tenn. L. Rev. 487, 527–528 (1996). A few days after this
proposal was taken under advisement, the Committee of De
tail reported that it had recommended adding the power
“ ‘[t]o establish uniform laws upon the subject of bankrupt
cies’ ” to the Naturalization Clause of what later became
Article I. Id., at 527.
The Convention adopted the Committee’s recommendation
with very little debate two days later. Roger Sherman of
Connecticut alone voted against it, apparently because he
was concerned that it would authorize Congress to impose
upon American citizens the ultimate penalty for debt then in
effect in England: death. See J. Madison, Notes of Debates
in the Federal Convention of 1787, p. 571 (Ohio Univ. Press
ed. 1966). The absence of extensive debate over the text of
the Bankruptcy Clause or its insertion indicates that there
was general agreement on the importance of authorizing a
uniform federal response to the problems presented in cases
like James and Millar.9
III
Bankruptcy jurisdiction, as understood today and at the
time of the framing, is principally in rem jurisdiction. See
Hood, 541 U. S., at 447; Local Loan Co., 292 U. S., at 241;
Straton v. New, 283 U. S. 318, 320–321 (1931); Hanover Nat.
9 Of course, the Bankruptcy Clause, located as it is in Article I, is “ ‘inti
mately connected’ ” not just with the Full Faith and Credit Clause, which
appears in Article IV of the Constitution, but also with the Commerce
Clause. See Railway Labor Executives’ Assn. v. Gibbons, 455 U. S. 457,
466 (1982) (quoting The Federalist No. 42, p. 285 (N. Y. Heritage Press
1945)). That does not mean, however, that the state sovereign immunity
implications of the Bankruptcy Clause necessarily mirror those of the
Commerce Clause. Indeed, the Bankruptcy Clause’s unique history, com
bined with the singular nature of bankruptcy courts’ jurisdiction, dis
cussed infra, have persuaded us that the ratification of the Bankruptcy
Clause does represent a surrender by the States of their sovereign immu
nity in certain federal proceedings. That conclusion is implicit in our
holding in Tennessee Student Assistance Corporation v. Hood, 541 U. S.
440 (2004).

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Bank v. Moyses, 186 U. S. 181, 192 (1902); New Lamp Chim
ney Co. v. Ansonia Brass & Copper Co., 91 U. S. 656, 661–662
(1876). In bankruptcy, “the court’s jurisdiction is premised
on the debtor and his estate, and not on the creditors.”
Hood, 541 U. S., at 447. As such, its exercise does not, in
the usual case, interfere with state sovereignty even when
States’ interests are affected. See id., at 448.
The text of Article I, § 8, cl. 4, of the Constitution, how
ever, provides that Congress shall have the power to estab
lish “uniform Laws on the subject of Bankruptcies through
out the United States.” Although the interest in avoiding
unjust imprisonment for debt and making federal discharges
in bankruptcy enforceable in every State was a primary
motivation for the adoption of that provision, its coverage
encompasses the entire “subject of Bankruptcies.” The
power granted to Congress by that Clause is a unitary con
cept rather than an amalgam of discrete segments.
The Framers would have understood that laws “on the
subject of Bankruptcies” included laws providing, in certain
limited respects, for more than simple adjudications of rights
in the res. The first bankruptcy statute, for example, gave
bankruptcy commissioners appointed by the district court
the power, inter alia, to imprison recalcitrant third parties
in possession of the estate’s assets. See Bankruptcy Act of
1800, § 14, 2 Stat. 25 (repealed 1803). More generally, courts
adjudicating disputes concerning bankrupts’ estates histori
cally have had the power to issue ancillary orders enforcing
their in rem adjudications. See, e. g., 2 W. Blackstone, Com
mentaries on the Laws of England 486 (1766) (noting that
the assignees of the bankrupt’s property—the 18th-century
counterparts to today’s bankruptcy trustees—could “pursue
any legal method of recovering [the debtor’s] property so
vested in them,” and could pursue methods in equity with
the consent of the creditors); Plank, 63 Tenn. L. Rev., at 523
(discussing state insolvency and bankruptcy laws in the 18th
century empowering courts to recover preferential trans

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fers); see also Ex parte Christy, 3 How. 292, 312, 314 (1844)
(opinion for the Court by Story, J.) (describing bankruptcy
jurisdiction under the 1841 Act in broad terms); Wright v.
Union Central Life Ins. Co., 304 U. S. 502, 513–514 (1938)
(defining “bankruptcy” as the “ ‘subject of the relations be
tween an insolvent or nonpaying or fraudulent debtor and
his creditors, extending to his and their relief ’ ” (emphasis
added)).
Our decision in Hood illustrates the point. As the dissent
ers in that case pointed out, it was at least arguable that
the particular procedure that the debtor pursued to establish
dischargeability of her student loan could have been charac
terized as a suit against the State rather than a purely in
rem proceeding. See 541 U. S., at 455–456 (Thomas, J., dis
senting). But because the proceeding was merely ancillary
to the Bankruptcy Court’s exercise of its in rem jurisdiction,
we held that it did not implicate state sovereign immunity.
The point is also illustrated by Congress’ early grant to fed
eral courts of the power to issue in personam writs of habeas
corpus directing States to release debtors from state prisons,
discussed in Part IV, infra. See Braden v. 30th Judicial
Circuit Court of Ky., 410 U. S. 484, 494–495 (1973) (“The writ
of habeas corpus does not act upon the prisoner who seeks
relief, but upon the person who holds him in what is alleged
to be unlawful custody”).
The interplay between in rem adjudications and orders an
cillary thereto is evident in the case before us. Respondent
first seeks a determination under 11 U. S. C. § 547 that the
various transfers made by the debtor to petitioners qualify
as voidable preferences. The § 547 determination, standing
alone, operates as a mere declaration of avoidance. That
declaration may be all that the trustee wants; for example,
if the State has a claim against the bankrupt estate, the
avoidance determination operates to bar that claim until the
preference is turned over. See § 502(d). In some cases,
though, the trustee, in order to marshal the entirety of the

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debtor’s estate, will need to recover the subject of the trans
fer pursuant to § 550(a). A court order mandating turnover
of the property, although ancillary to and in furtherance of
the court’s in rem jurisdiction, might itself involve in perso
nam process.
As we explain in Part IV, infra, it is not necessary to de
cide whether actions to recover preferential transfers pursu
ant to § 550(a) are themselves properly characterized as in
rem.10 Whatever the appropriate appellation, those who
crafted the Bankruptcy Clause would have understood it to
give Congress the power to authorize courts to avoid prefer
ential transfers and to recover the transferred property.
Petitioners do not dispute that that authority has been a core
aspect of the administration of bankrupt estates since at
least the 18th century. See, e. g., Rust v. Cooper, 2 Cowp.
629, 633–634, 98 Eng. Rep. 1277, 1280 (K. B. 1777); Alderson
v. Temple, 1 Black. W. 660, 661–663, 96 Eng. Rep. 384, 385
10 The proper characterization of such actions is not as clear as petition
ers suggest. The Court in Nordic Village, Inc., 503 U. S., at 38, stated,
as an alternative basis for rejecting a bankruptcy trustee’s argument that
a suit to avoid a preferential transfer made to the Internal Revenue Serv
ice was an action in rem, that any in rem “exception” to sovereign immu
nity was unavailable in that case because the trustee sought to recover a
“sum of money, not ‘particular dollars.’ ” There was, in the Court’s view,
“no res to which the [bankruptcy] court’s in rem jurisdiction could have
attached.” Ibid. In making that determination, the Court distinguished
our earlier decision in United States v. Whiting Pools, Inc., 462 U. S. 198
(1983), which held that the debtor’s “estate,” the res, “includes property
of the debtor that has been seized by a creditor prior to the filing of a
[bankruptcy] petition.” Id., at 209; see also Begier v. IRS, 496 U. S. 53,
58 (1990) (“ ‘property of the debtor’ subject to the preferential transfer
provision is best understood as that property that would have been part
of the estate had it not been transferred before the commencement of
bankruptcy proceedings”). We observe that the trustee in this case, un
like the one in Nordic Village, seeks, in the alternative, both return of the
“value” of the preference, see 11 U. S. C. § 550(a), and return of the actual
“property transferred,” ibid. See Brief for Respondent 37 (“Respondent
invokes the in rem jurisdiction of the bankruptcy court to recover under
section 550 ‘the property transferred’ ”).

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(K. B. 1768); see also McCoid, Bankruptcy, Preferences, and
Efficiency: An Expression of Doubt, 67 Va. L. Rev. 249, 251–
253 (1981) (discussing English precedents, dating back to Sir
Edward Coke’s discussion in The Case of Bankrupts, 2 Co.
Rep. 25a, 76 Eng. Rep. 441 (K. B. 1584), addressing bank
ruptcy commissioners’ power to avoid preferences); In re
Dehon, Inc., 327 B. R. 38, 62–65 (Bkrtcy. Ct. Mass. 2005) (col
lecting historical materials). And it, like the authority to
issue writs of habeas corpus releasing debtors from state
prisons, see Part IV, infra, operates free and clear of the
State’s claim of sovereign immunity.
IV
Insofar as orders ancillary to the bankruptcy courts’ in
rem jurisdiction, like orders directing turnover of preferen
tial transfers, implicate States’ sovereign immunity from
suit, the States agreed in the plan of the Convention not to
assert that immunity. So much is evidenced not only by the
history of the Bankruptcy Clause, which shows that the
Framers’ primary goal was to prevent competing sovereigns’
interference with the debtor’s discharge, see Part II, supra,
but also by legislation considered and enacted in the immedi
ate wake of the Constitution’s ratification.
Congress considered proposed legislation establishing uni
form federal bankruptcy laws in the first and each succeed
ing Congress until 1800, when the first Bankruptcy Act was
passed. See C. Warren, Bankruptcy in United States His
tory 10 (1935) (“[I]n the very first session of the 1st Con
gress, during which only the most necessary subjects of
legislation were considered, bankruptcy was one of those
subjects; and as early as June 1, 1789, a Committee of the
House was named to prepare a bankruptcy bill”). The
Bankruptcy Act of 1800 was in many respects a copy of the
English bankruptcy statute then in force. It was, like the
English law, chiefly a measure designed to benefit creditors.
Like the English statute, its principal provisions permitted

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bankruptcy commissioners, on appointment by a federal dis
trict court, to arrest the debtor, see § 4, 2 Stat. 22; to “cause
the doors of the dwelling-house of [the] bankrupt to be bro
ken,” § 4, id., at 22–23; to seize and collect the debtor’s assets,
§ 5, id., at 23; to examine the debtor and any individuals who
might have possession of the debtor’s property, §§ 14, 18, 19,
id., at 25–27; and to issue a “certificate of discharge” once
the estate had been distributed, § 36, id., at 31.
The American legislation differed slightly from the Eng
lish, however. That difference reflects both the uniqueness
of a system involving multiple sovereigns and the concerns
that lay at the core of the Bankruptcy Clause itself. The
English statute gave a judge sitting on a court where the
debtor had obtained his discharge the power to order a sher
iff, “Bailiff or Officer, Gaoler or Keeper of any Prison” to
release the “Bankrupt out of Custody” if he were arrested
subsequent to the discharge. 5 Geo. 2, ch. 30, ¶ 13 (1732).
The American version of this provision was worded differ
ently; it specifically granted federal courts the authority to
issue writs of habeas corpus effective to release debtors from
state prisons. See § 38, 2 Stat. 32; see also In re Comstock,
6 F. Cas. 237, 239 (No. 3,073) (Vt. 1842) (observing that Bank
ruptcy Act of 1800, then repealed, would have granted a fed
eral court the power to issue a writ of habeas corpus to
release a debtor from state prison if he had been arrested
following his bankruptcy discharge).
This grant of habeas power is remarkable not least because
it would be another 67 years, after Congress passed the
Fourteenth Amendment, before the writ would be made gen
erally available to state prisoners. See Ex parte Royall,
117 U. S. 241, 247 (1886).11 Moreover, the provision of the
11 The Judiciary Act of 1789 authorized issuance of the writ, but only to
release those held in federal custody. See Haines, The Uniformity Power:
Why Bankruptcy is Different, 77 Am. Bankr. L. J. 129, 179–181 (2003)
(hereinafter Haines). Also, in the interim between 1800 and 1867, Con
gress authorized limited issuance of the writ in response to two crises it

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1800 Act granting that power was considered and adopted
during a period when state sovereign immunity could hardly
have been more prominent among the Nation’s concerns.
Chisholm v. Georgia, 2 Dall. 419, the case that had so
“shock[ed]” the country in its lack of regard for state sover
eign immunity, Principality of Monaco v. Mississippi, 292
U. S. 313, 325 (1934), was decided in 1793. The ensuing five
years that culminated in adoption of the Eleventh Amend
ment were rife with discussion of States’ sovereignty and
their amenability to suit. Yet there appears to be no record
of any objection to the bankruptcy legislation or its grant of
habeas power to federal courts based on an infringement of
sovereign immunity. See Haines 184–185.
This history strongly supports the view that the Bank
ruptcy Clause of Article I, the source of Congress’ authority
to effect this intrusion upon state sovereignty, simply did not
contravene the norms this Court has understood the Elev
enth Amendment to exemplify. Cf. Blatchford v. Native
Village of Noatak, 501 U. S. 775, 779 (1991) (“[W]e have un
derstood the Eleventh Amendment to stand not so much for
what it says, but for the presupposition of our constitutional
structure which it confirms . . . ”).12 Petitioners, ignoring
viewed as sufficiently pressing to warrant a federal response: the South
Carolina nullification controversy of 1828–1833 and the imprisonment of a
foreign national by New York State a few years later. See 4 Stat. 632
(1833); 5 Stat. 539 (1842); see also W. Duker, A Constitutional History of
Habeas Corpus 187–189 (1980). The 1833 statute made the writ available
to U. S. citizens imprisoned by States for actions authorized by federal
law, while the 1842 statute gave federal judges the power to release for
eign nationals imprisoned for actions authorized by foreign governments.
12 Further evidence of the Framers’ intent to exempt laws “on the sub
ject of Bankruptcies” from the operation of state sovereign immunity prin
ciples can be gleaned from § 62 of the Bankruptcy Act of 1800. That sec
tion provided that “nothing contained in this law shall, in any manner,
effect the right of preference to prior satisfaction of debts due to the
United States as secured or provided by any law heretofore passed, nor
shall be construed to lessen or impair any right to, or security for, money
due to the United States or to any of them.” 2 Stat. 36. That Congress

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this history, contend that nothing in the words of the Bank
ruptcy Clause evinces an intent on the part of the Framers
to alter the “background principle” of state sovereign immu
nity. Seminole Tribe of Fla., 517 U. S., at 72. Specifically,
they deny that the word “uniform” in the Clause implies any
thing about pre-existing immunities or Congress’ power to
interfere with those immunities. See Brief for Petitioners
32–42. Whatever the merits of petitioners’ argument,13 it
felt the need to carve out an exception for States’ preferences undermines
any suggestion that it was operating against a background presumption of
state sovereign immunity to bankruptcy laws. Indeed, one contemporary
commentator read this section of the Act as requiring that the protected
“priorit[ies]” would have to be “specifically given by some act of the Legis
lature of the Union” before they would be exempt from operation of the
Act’s provisions. T. Cooper, The Bankrupt Law of America, Compared
with the Bankrupt Law of England 334 (1801) (reprint 1992) (“But I do
not apprehend [that] this extends to give any priority to the United States,
not specifically given by some act of the Legislature of the Union; nor will
the English doctrine of priorities in favour of the crown be extended by
analogy into this country”).
13 Petitioners make much of precedents suggesting that the word “uni
form” represents a limitation, rather than an expansion, of Congress’ legis
lative power in the bankruptcy sphere. See, e. g., Gibbons, 455 U. S., at
468 (“Unlike the Commerce Clause, the Bankruptcy Clause itself contains
an affirmative limitation or restriction upon Congress’ power: bankruptcy
laws must be uniform throughout the United States”). They also cite
Justice Frankfurter’s concurring opinion in Vanston Bondholders Protec
tive Comm. v. Green, 329 U. S. 156 (1946), for the proposition that “[t]he
Constitutional requirement of uniformity is a requirement of geographic
uniformity,” id., at 172. Based on these authorities, petitioners argue that
the word “uniform” in the Bankruptcy Clause cannot be interpreted to
confer upon Congress any greater authority to impinge upon state sover
eign immunity than is conferred, for example, by the Commerce Clause.
See Brief for Petitioners 33.
Petitioners’ logic is not persuasive. Although our analysis does not rest
on the peculiar text of the Bankruptcy Clause as compared to other
Clauses of Article I, we observe that, if anything, the mandate to enact
“uniform” laws supports the historical evidence showing that the States
agreed not to assert their sovereign immunity in proceedings brought pur

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misses the point; text aside, the Framers, in adopting the
Bankruptcy Clause, plainly intended to give Congress the
power to redress the rampant injustice resulting from
States’ refusal to respect one another’s discharge orders.
As demonstrated by the First Congress’ immediate consider
ation and the Sixth Congress’ enactment of a provision
granting federal courts the authority to release debtors from
state prisons, the power to enact bankruptcy legislation was
understood to carry with it the power to subordinate state
sovereignty, albeit within a limited sphere.
The ineluctable conclusion, then, is that States agreed in
the plan of the Convention not to assert any sovereign immu
nity defense they might have had in proceedings brought
pursuant to “Laws on the subject of Bankruptcies.” See
Blatchford, 501 U. S., at 779 (observing that a State is not
“subject to suit in federal court unless it has consented to
suit, either expressly or in the ‘plan of the convention’ ”);
suant to “Laws on the subject of Bankruptcies.” That Congress is con
strained to enact laws that are uniform in application, whether geographi
cally or otherwise, cf. Gibbons, 455 U. S., at 470 (invalidating a bankruptcy
law aimed at “one regional bankrupt railroad” and no one else), does not
imply that it lacks power to enact bankruptcy legislation that is uniform
in a more robust sense. See Haines 158–172. As our holding today dem
onstrates, Congress has the power to enact bankruptcy laws the purpose
and effect of which are to ensure uniformity in treatment of state and
private creditors. See Sturges v. Crowninshield, 4 Wheat. 122, 193–194
(1819) (opinion for the Court by Marshall, C. J.) (“The peculiar terms of
the grant certainly deserve notice. Congress is not authorized merely to
pass laws, the operation of which shall be uniform, but to establish uniform
laws on the subject throughout the United States”); see also In re Dehon,
Inc., 327 B. R. 38, 57–58 (Bkrtcy. Ct. Mass. 2005) (discussing Lathrop v.
Drake, 91 U. S. 516 (1876)); The Federalist Nos. 32 and 81, pp. 197–201,
481–491 (C. Rossiter ed. 1961) (A. Hamilton) (pointing to the “uniform[ity]”
language of the Naturalization Clause, which appears in the same clause
of Article I as the bankruptcy provision, as an example of an instance
where the Framers contemplated a “surrender of [States’] immunity in
the plan of the convention”).

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Alden v. Maine, 527 U. S., at 713 (same).14 The scope of this
consent was limited; the jurisdiction exercised in bankruptcy
proceedings was chiefly in rem—a narrow jurisdiction that
does not implicate state sovereignty to nearly the same de
gree as other kinds of jurisdiction. But while the principal
focus of the bankruptcy proceedings is and was always the
res, some exercises of bankruptcy courts’ powers—issuance
of writs of habeas corpus included—unquestionably involved
more than mere adjudication of rights in a res. In ratifying
the Bankruptcy Clause, the States acquiesced in a subordina
tion of whatever sovereign immunity they might otherwise
have asserted in proceedings necessary to effectuate the in
rem jurisdiction of the bankruptcy courts.15
V
Neither our decision in Hood, which held that States could
not assert sovereign immunity as a defense in adversary pro
ceedings brought to adjudicate the dischargeability of stu
dent loans, nor the cases upon which it relied, see 541 U. S.,
at 448–449 (discussing New York v. Irving Trust Co., 288
U. S. 329 (1933); Gardner, 329 U. S. 565; and Van Huffel v.
Harkelrode, 284 U. S. 225 (1931)), rested on any statement
Congress had made on the subject of state sovereign immu
14 One might object that the writ of habeas corpus was no infringement
on state sovereignty, and would not have been understood as such, because
that writ, being in the nature of an injunction against a state official, does
not commence or constitute a suit against the State. See Ex parte Young,
209 U. S. 123, 159–160 (1908). While that objection would be supported
by precedent today, it would not have been apparent to the Framers. The
Ex parte Young doctrine was not finally settled until over a century after
the framing and the enactment of the first bankruptcy statute. Indeed,
we have recently characterized the doctrine as an expedient “fiction” nec
essary to ensure the supremacy of federal law. See Pennhurst State
School and Hospital v. Halderman, 465 U. S. 89, 114, n. 25 (1984); see also
Idaho v. Coeur d’Alene Tribe of Idaho, 521 U. S. 261, 281 (1997).
15 We do not mean to suggest that every law labeled a “bankruptcy” law
could, consistent with the Bankruptcy Clause, properly impinge upon state
sovereign immunity.

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Thomas, J., dissenting
nity. Nor does our decision today. The relevant question
is not whether Congress has “abrogated” States’ immunity
in proceedings to recover preferential transfers. See 11
U. S. C. § 106(a).16 The question, rather, is whether Con
gress’ determination that States should be amenable to such
proceedings is within the scope of its power to enact “Laws
on the subject of Bankruptcies.” We think it beyond perad
venture that it is.
Congress may, at its option, either treat States in the same
way as other creditors insofar as concerns “Laws on the sub
ject of Bankruptcies” or exempt them from operation of such
laws. Its power to do so arises from the Bankruptcy Clause
itself; the relevant “abrogation” is the one effected in the
plan of the Convention, not by statute.
The judgment of the Court of Appeals for the Sixth Cir
cuit is affirmed.
It is so ordered.
Justice Thomas, with whom The Chief Justice, Jus
tice Scalia, and Justice Kennedy join, dissenting.
Under our Constitution, the States are not subject to suit
by private parties for monetary relief absent their consent
or a valid congressional abrogation, and it is “settled doc
trine” that nothing in Article I of the Constitution estab
lishes those preconditions. Alden v. Maine, 527 U. S. 706,
748 (1999). Yet the Court today casts aside these long
established principles to hold that the States are subject to
suit by a rather unlikely class of individuals—bankruptcy
trustees seeking recovery of preferential transfers for a
bankrupt debtor’s estate. This conclusion cannot be justi
fied by the text, structure, or history of our Constitution.
In addition, today’s ruling is not only impossible to square
with this Court’s settled state sovereign immunity jurispru
16 Cf. Hoffman, 492 U. S., at 101 (holding that, in an earlier version of 11
U. S. C. § 106, Congress had failed to make sufficiently clear its intent to
abrogate state sovereign immunity).

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dence; it is also impossible to reach without overruling this
Court’s judgment in Hoffman v. Connecticut Dept. of In
come Maintenance, 492 U. S. 96 (1989).
The majority maintains that the States’ consent to suit can
be ascertained from the history of the Bankruptcy Clause.
But history confirms that the adoption of the Constitution
merely established federal power to legislate in the area of
bankruptcy law, and did not manifest an additional intention
to waive the States’ sovereign immunity against suit. Ac
cordingly, I respectfully dissent.
I
The majority does not appear to question the established
framework for examining the question of state sovereign im
munity under our Constitution. The Framers understood,
and this Court reiterated over a century ago in Hans v. Lou
isiana, 134 U. S. 1 (1890):
“ ‘It is inherent in the nature of sovereignty not to be
amenable to the suit of an individual without its consent.
This is the general sense and the general practice of
mankind; and the exemption, as one of the attributes of
sovereignty, is now enjoyed by the government of every
State in the Union. Unless, therefore, there is a sur
render of this immunity in the plan of the convention,
it will remain with the States . . . .’ ” Id., at 13 (quoting
The Federalist No. 81, pp. 548–549 (J. Cooke ed. 1961)
(hereinafter The Federalist No. 81); emphasis added
and deleted).
See also Ex parte New York, 256 U. S. 490, 497 (1921) (“That
a State may not be sued without its consent is a fundamental
rule of jurisprudence having so important a bearing upon
the construction of the Constitution of the United States that
it has become established by repeated decisions of this court
that the entire judicial power granted by the Constitution
does not embrace authority to entertain a suit brought by

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private parties against a State without consent given”); Sem
inole Tribe of Fla. v. Florida, 517 U. S. 44, 54 (1996).
These principles were further reinforced early in our Na
tion’s history, when the people swiftly rejected this Court’s
decision in Chisholm v. Georgia, 2 Dall. 419 (1793), by rat
ifying the Eleventh Amendment less than two years later.
See Hans, supra, at 11; Reid v. Covert, 354 U. S. 1, 14, n. 27
(1957) (plurality opinion). Thus, “[f]or over a century [since
Hans] we have reaffirmed that federal jurisdiction over suits
against unconsenting States ‘was not contemplated by the
Constitution when establishing the judicial power of the
United States.’ ” Seminole Tribe, supra, at 54 (quoting
Hans, supra, at 15); see also Seminole Tribe, supra, at 54–55,
n. 7 (collecting cases).
The majority finds a surrender of the States’ immunity
from suit in Article I of the Constitution, which authorizes
Congress “[t]o establish . . . uniform Laws on the subject
of Bankruptcies throughout the United States.” § 8, cl. 4.
But nothing in the text of the Bankruptcy Clause suggests
an abrogation or limitation of the States’ sovereign immu
nity. Indeed, as this Court has noted on numerous occa
sions, “[t]he Eleventh Amendment restricts the judicial
power under Article III, and Article I cannot be used to cir
cumvent the constitutional limitations placed upon federal
jurisdiction.” Seminole Tribe, supra, at 72–73. “[I]t is set
tled doctrine that neither substantive federal law nor at
tempted congressional abrogation under Article I bars a
State from raising a constitutional defense of sovereign im
munity in federal court.” Alden, supra, at 748. See also
Kimel v. Florida Bd. of Regents, 528 U. S. 62, 80 (2000);
Board of Trustees of Univ. of Ala. v. Garrett, 531 U. S. 356,
364 (2001). And we have specifically applied this “settled
doctrine” to bar abrogation of state sovereign immunity
under various clauses within § 8 of Article I. See, e. g., Sem
inole Tribe, supra (the Interstate and Indian Commerce
Clauses); Florida Prepaid Postsecondary Ed. Expense Bd.

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v. College Savings Bank, 527 U. S. 627 (1999) (the Patents
Clause).
It is difficult to discern an intention to abrogate state sov
ereign immunity through the Bankruptcy Clause when no
such intention has been found in any of the other clauses in
Article I. Indeed, our cases are replete with acknowledg
ments that there is nothing special about the Bankruptcy
Clause in this regard. See Seminole Tribe, 517 U. S., at 72–
73, n. 16; see also id., at 93–94 (Stevens, J., dissenting) (“In
confronting the question whether a federal grant of jurisdic
tion is within the scope of Article III, as limited by the Elev
enth Amendment, I see no reason to distinguish among stat
utes enacted pursuant to the power granted to Congress to
regulate commerce among the several States, and with the
Indian tribes, the power to establish uniform laws on the
subject of bankruptcy, [or] the power to promote the prog
ress of science and the arts by granting exclusive rights to
authors and inventors” (citations omitted)); id., at 77–78, and
n. 1 (Stevens, J., dissenting); Hoffman, 492 U. S., at 105
(Scalia, J., concurring in judgment). Today’s decision thus
cannot be reconciled with our established sovereign immu
nity jurisprudence, which the majority does not purport to
overturn.
The majority’s departure from this Court’s precedents is
not limited to this general framework, however; the majority
also overrules sub silentio this Court’s holding in Hoffman,
supra. The petitioner in Hoffman, id., at 99—like respond
ent Katz here—sought to pursue a preference avoidance ac
tion against a state agency pursuant to 11 U. S. C. § 547(b).
The plurality opinion, joined by four Members of this Court,
held that Eleventh Amendment immunity barred suit be
cause Congress had failed to enact legislation sufficient to
abrogate that immunity, and expressed no view on whether
Congress possessed the constitutional power to do so. Hoff
man, supra, at 104. Justice Scalia concurred in the judg
ment, arguing that there was no need to examine the statute

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because the Bankruptcy Clause does not empower Congress
to enact legislation abrogating state sovereign immunity.
See 492 U. S., at 105; see also ibid. (O’Connor, J., concurring)
(“I agree with Justice Scalia that Congress may not abro
gate the States’ Eleventh Amendment immunity by enacting
a statute under the Bankruptcy Clause”). Thus, a majority
of the Court in Hoffman agreed: (1) that a preference action
in bankruptcy against a state agency is barred by sovereign
immunity; and (2) that, at a minimum (and absent the State’s
consent), overcoming that immunity would require a clearer
statutory abrogation than Congress had provided.1
After today’s decision, however, Hoffman can no longer
stand. For today’s decision makes clear that no action of
Congress is needed because the Bankruptcy Clause itself
manifests the consent of the States to be sued. Ante, at 378.
II
The majority supports its break from precedent by relying
on historical evidence that purportedly reveals the Framers’
intent to eliminate state sovereign immunity in bankruptcy
proceedings. Ante, at 362–363, 373. The Framers un
doubtedly wanted to give Congress the authority to enact a
national law of bankruptcy, as the text of the Bankruptcy
Clause confirms. But the majority goes further, contending
that the Framers found it intolerable that bankruptcy laws
could vary from State to State, and demanded the enactment
of a single, uniform national body of bankruptcy law. Ante,
at 365–368. The majority then concludes that, to achieve
a uniform national bankruptcy law, the Framers must have
intended to waive the States’ sovereign immunity against
suit. Ante, at 362. Both claims are unwarranted.
1 The parties in Hoffman likewise agreed that the suit was barred by
Eleventh Amendment immunity absent some further action by Congress.
492 U. S., at 101.

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A
In contending that the States waived their immunity from
suit by adopting the Bankruptcy Clause, the majority con
flates two distinct attributes of sovereignty: the authority of
a sovereign to enact legislation regulating its own citizens,
and sovereign immunity against suit by private citizens.2
Nothing in the history of the Bankruptcy Clause suggests
that, by including that clause in Article I, the founding gen
eration intended to waive the latter aspect of sovereignty.
These two attributes of sovereignty often do not run to
gether—and for purposes of enacting a uniform law of
bankruptcy, they need not run together.
For example, Article I also empowers Congress to regu
late interstate commerce and to protect copyrights and pat
ents. These provisions, no less than the Bankruptcy Clause,
were motivated by the Framers’ desire for nationally uni
form legislation. See James Madison, Preface to Debates in
the Convention of 1787, reprinted in 3 M. Farrand, Records
of the Federal Convention of 1787, pp. 539, 547–548 (1911)
(hereinafter Farrand’s Debates) (noting lack of national regu
lation of commerce and uniform bankruptcy law as defects
under the Articles of Confederation); M. Farrand, The Fram
ing of the Constitution of the United States 48 (1913) (noting
that the Articles of Confederation failed to provide for uni
form national regulation of naturalization, bankruptcy, copy
rights, and patents). Thus, we have recognized that “[t]he
need for uniformity in the construction of patent law is un
doubtedly important.” Florida Prepaid, 527 U. S., at 645.
Nonetheless, we have refused, in addressing patent law, to
give the need for uniformity the weight the majority today
2 Immunity against suit is just “one of the attributes of sovereignty, . . .
enjoyed by the government of every state in the union.” The Federalist
No. 81, at 549. The sovereign power to legislate is a distinct attribute of
sovereignty; it is discussed, for example, in a completely separate portion
of the Federalist than immunity from suit. See, e. g., id., No. 32.

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Thomas, J., dissenting
assigns it in the context of bankruptcy, instead recognizing
that this need “is a factor which belongs to the Article I
patent-power calculus, rather than to any determination of
whether a state plea of sovereign immunity deprives a pat
entee of property without due process of law.” Ibid.
Nor is the abrogation of state sovereign immunity from
suit necessary to the enactment of nationally uniform bank
ruptcy laws. The sovereign immunity of the States against
suit does not undermine the objective of a uniform national
law of bankruptcy, any more than does any differential treat
ment between different categories of creditors. Cf. Rail
way Labor Executives’ Assn. v. Gibbons, 455 U. S. 457, 469
(1982) (“The uniformity requirement is not a straightjacket
that forbids Congress to distinguish among classes of debt
ors, nor does it prohibit Congress from recognizing that state
laws do not treat commercial transactions in a uniform
manner”).
B
The majority also greatly exaggerates the depth of the
Framers’ fervor to enact a national bankruptcy regime.
The idea of authorizing Congress to enact a nationally uni
form bankruptcy law did not arise until late in the Constitu
tional Convention, which began in earnest on May 25, 1787.
1 Farrand’s Debates xi. The Convention charged the Com
mittee of Detail with putting forth a comprehensive draft
Constitution, which it did on August 6. Ibid.; 2 id., at 177.
Yet the Convention did not consider the language that even
tually became the Bankruptcy Clause until September 1, id.,
at 483–485, and it adopted the provision with little debate
two days later, id., at 489. Under the majority’s analysis,
which emphasizes the Framers’ zeal to enact a national law
of bankruptcy, this timing is difficult to explain.
The majority’s premise fares even worse in explaining the
postratification period. The majority correctly notes that
the practice of the early Congresses can provide valuable

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insight into the Framers’ understanding of the Constitution.
Ante, at 373, 374. But early practice undermines, rather
than supports, the majority’s theory. “For over a century
after the Constitution, . . . the Bankruptcy Clause [authority]
remained largely unexercised by Congress. . . . Thus, states
were free to act in bankruptcy matters for all but 16 of the
first 109 years after the Constitution was ratified.” Tabb,
The History of the Bankruptcy Laws in the United States, 3
Am. Bankr. Inst. L. Rev. 5, 13–14 (1995). And when Con
gress did act, it did so only in response to a major financial
disaster, and it repealed the legislation in each instance
shortly thereafter. Id., at 14–21.3 It was not until 1898,
well over a century after the adoption of the Bankruptcy
Clause, that Congress adopted the first permanent national
bankruptcy law. 30 Stat. 544.
The historical record thus refutes, rather than supports,
the majority’s premise that the Framers placed paramount
importance on the enactment of a nationally uniform bank
3 For over a dozen years after the ratification of the Constitution, Con
gress failed to adopt a single bankruptcy law. See, e. g., 9 Annals of Con
gress 2671 (1799) (noting that Congress had “not . . . passed [bankruptcy
legislation] for these ten years past, and the States [have] legislated upon
it in their own way” (statement of Rep. Baldwin)); 3 Farrand’s Debates
380 (same). It was not until April 4, 1800, that the Sixth Congress finally
adopted our Nation’s first bankruptcy law, ch. 19, 2 Stat. 19, and even that
law left an ample role for state law, § 61, id., at 36. (By contrast, the
very first Congress enacted, inter alia, patent and copyright legislation.
1 Stat. 109, 124.)
Moreover, that first Act was short lived; Congress repealed it just three
years later. 2 Stat. 248. And over a decade later, this Court confirmed
what Congress’ inattention had already communicated—that the Bank
ruptcy Clause does not vest exclusive power in Congress, but instead
leaves an ample role for the States. See Sturges v. Crowninshield, 4
Wheat. 122 (1819). It was not until 1841 that Congress would enact an
other bankruptcy law, ch. 9, 5 Stat. 440, only to repeal it less than two
years later, ch. 82, id., at 614. The economic upheaval of the Civil War
caused Congress to pass another bankruptcy law in 1867, ch. 176, 14 Stat.
517, but that too was repealed after just over a decade, ch. 160, 20 Stat. 99.

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ruptcy law. In reality, for most of the first century of our
Nation’s history, the country survived without such a law,
relying instead on the laws of the several States.
Moreover, the majority identifies no historical evidence
suggesting that the Framers or the early Legislatures, even
if they were anxious to establish a national bankruptcy law,
contemplated that the States would subject themselves to
private suit as creditors under that law. In fact, the histori
cal record establishes that the Framers held the opposite
view. To the Framers, it was a particularly grave offense
to a State’s sovereignty to be hauled into court by a private
citizen and forced to make payments on debts. Alexander
Hamilton, the author of Federalist No. 81, followed his gen
eral discussion of state sovereign immunity by emphasizing
that the Constitution would be especially solicitous of state
sovereignty within the specific context of payment of state
debts:
“ ‘[T]here is no color to pretend that the state govern
ments would, by the adoption of that plan, be divested
of the privilege of paying their own debts in their own
way, free from every constraint but that which flows
from the obligations of good faith. The contracts be
tween a nation and individuals are only binding on the
conscience of the sovereign, and have no pretension to a
compulsive force. They confer no right of action inde
pendent of the sovereign will. To what purpose would
it be to authorize suits against States for the debts they
owe? How could recoveries be enforced? It is evident
that it could not be done without waging war against the
contracting State; and to ascribe to the federal courts by
mere implication, and in destruction of a pre-existing
right of the state governments, a power which would
involve such a consequence, would be altogether forced
and unwarrantable.’ ” Hans, 134 U. S., at 13 (quoting
The Federalist No. 81, at 549).

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C
The majority attempts to bolster its historical argument
by making three additional observations about the bank
ruptcy power: (1) Congress’ early provision of habeas corpus
relief in bankruptcy to forbid the imprisonment of a debtor
by one State, in violation of a discharge order issued by the
courts of another State, ante, at 365–366, 374–375; (2) the
inability of debtors, first in the American Colonies and then
under the Articles of Confederation, to enforce in one state
court a discharge order issued by another state court, ante,
at 366–368; and (3) the historical understanding that bank
ruptcy jurisdiction is principally in rem, ante, at 369–373.
The implication is that, if these specific observations about
bankruptcy are correct, then States must necessarily be sub
ject to suit in transfer recovery proceedings, if not also in
other bankruptcy settings. Ante, at 370; ante, at 377–378.
But none of these observations comes close to demonstrating
that, under the Bankruptcy Clause, the States may be sued
by private parties for monetary relief.4
1
The availability of habeas relief in bankruptcy between
1800 and 1803 does not support respondent’s effort to ob
tain monetary relief in bankruptcy against state agencies
today.5 The habeas writ was well established by the time
4 To be sure, the majority opinion adds, in a footnote, that “[w]e do not
mean to suggest that every law labeled a ‘bankruptcy’ law could, consist
ent with the Bankruptcy Clause, properly impinge upon state sovereign
immunity.” Ante, at 378, n. 15. But the majority offers no explanation
of this statement; certainly it offers no principled basis on which to draw
distinctions in future cases.
5 This is particularly so given the absence of any known application of
that law (let alone any test of its validity) during that time. The provi
sion was enacted into law on April 4, 1800, ch. 19, 2 Stat. 19, and repealed
on December 19, 1803, ch. 6, id., at 248. The sole reference cited by the
majority is In re Comstock, 6 F. Cas. 237 (No. 3,073) (Vt. 1842), see ante,
at 374, but that ruling, issued nearly 40 years after the 1800 Act’s repeal,
merely noted in dicta the prior existence of the habeas provision.

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of the framing, and consistent with then-prevailing notions
of sovereignty. In Ex parte Young, 209 U. S. 123 (1908), this
Court held that a petition for the writ is a suit against a
state official, not a suit against a State, and thus does not
offend the Eleventh Amendment:
“The right to so discharge has not been doubted by this
court, and it has never been supposed there was any suit
against the State by reason of serving the writ upon one
of the officers of the State in whose custody the person
was found. In some of the cases the writ has been re
fused as matter of discretion; but in others it has been
granted, while the power has been fully recognized in
all.” Id., at 168 (collecting cases).
This Court has reaffirmed Young repeatedly—including in
Seminole Tribe, 517 U. S., at 71, n. 14. Although the major
ity observes that Young was not issued “until over a century
after the framing and the enactment of the first bankruptcy
statute,” ante, at 378, n. 14, this observation does nothing to
reconcile the majority’s analysis with Young, as the majority
does not purport to question the historical underpinnings of
Young’s holding. The availability of federal habeas relief to
debtors in state prisons thus has no bearing whatsoever on
whether the Bankruptcy Clause authorizes suits against the
States for money damages.6
6 The majority also contends that the provision for habeas relief in the
1800 bankruptcy law is “remarkable not least because it would be another
67 years, after Congress passed the Fourteenth Amendment, before the
writ would be made generally available to state prisoners.” Ante, at 374.
The implication is that the Bankruptcy Clause shares a similar pedigree
with the Fourteenth Amendment, which (unlike Article I of the Constitu
tion) authorizes Congress to abrogate state sovereign immunity against
suit. See, e. g., Fitzpatrick v. Bitzer, 427 U. S. 445 (1976). But as the
majority recognizes, ante, at 374–375, n. 11, Congress did enact other
habeas provisions prior to the Fourteenth Amendment. See 4 Stat. 632;
5 Stat. 539; see generally W. Duker, A Constitutional History of Habeas
Corpus 187–189 (1980) (discussing the 1833 and 1842 Acts). The Four
teenth Amendment bears no relevance to this discussion in any event,

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2
The majority’s second observation—that the Framers
were concerned that, under the Articles of Confederation,
debtors were unable to obtain discharge orders issued by the
court of one State that would be binding in the court of an
other State, ante, at 366–368—implicates nothing more than
the application of full faith and credit, as is apparent from
the majority opinion itself. Accordingly, it has nothing to
do with state sovereign immunity from suit.
To support its observation, the majority describes at
length two Pennsylvania court rulings issued under the Ar
ticles of Confederation. See James v. Allen, 1 Dall. 188
(C. P. Phila. Cty. 1786); Millar v. Hall, 1 Dall. 229 (Pa. 1788).
But as the majority’s explanation makes clear, the prob
lem demonstrated by these cases is the need for recognition
of sister-state judgments by state courts, not disregard for
state sovereign immunity against suit in federal courts.
Both James and Millar involved litigation between a private
debtor and a private creditor. In both cases, the creditor
filed suit in a Pennsylvania court to enforce a debt. And in
both cases, the debtor sought but failed to obtain recognition
of a judgment of discharge that had previously been entered
by a court of another State. Ante, at 368.
Accordingly, it is unsurprising that, when the issue of
bankruptcy arose at the Constitutional Convention, it was
also within the context of full faith and credit. See ante, at
368–369.7 As the majority correctly points out, the Framers
because as I have explained above, habeas relief simply does not offend the
Framers’ view of state sovereign immunity. See also Young, 209 U. S., at
150 (“[A] decision of this case does not require an examination or decision
of the question whether [the] adoption [of the Fourteenth Amendment] in
any way altered or limited the effect of the [Eleventh] Amendment”).
7 The same point was made in Railway Labor Executives’ Assn. v. Gib
bons, 455 U. S. 457 (1982): “Prior to the drafting of the Constitution, at
least four States followed the practice of passing private Acts to relieve
individual debtors. Given the sovereign status of the States, questions

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“plainly intended to give Congress the power to redress the
rampant injustice resulting from States’ refusal to respect
one another’s discharge orders.” Ante, at 377. But redress
of that “rampant injustice” turned entirely on binding state
courts to respect the discharge orders of their sister States
under the Full Faith and Credit Clause, not on the authoriza
tion of private suits against the States.
3
Finally, the majority observes that the bankruptcy power
is principally exercised through in rem jurisdiction. Ante,
at 369–373. The fact that certain aspects of the bankruptcy
power may be characterized as in rem, however, does not
determine whether or not the States enjoy sovereign immu
nity against such in rem suits. And it certainly does not
answer the question presented in this case: whether the
Bankruptcy Clause subjects the States to transfer recovery
proceedings—proceedings the majority describes as “ancil
lary to and in furtherance of the court’s in rem jurisdiction,”
though not necessarily themselves in rem, ante, at 372.
Two years ago, this Court held that a State is bound by
a bankruptcy court’s discharge order, notwithstanding the
State’s invocation of sovereign immunity, because such ac
tions arise out of in rem jurisdiction. See Tennessee Stu
dent Assistance Corporation v. Hood, 541 U. S. 440, 448
(2004). In doing so, however, the Court explicitly distin
guished recovery of preferential transfers, noting that the
debt discharge proceedings there were “unlike an adversary
proceeding by the bankruptcy trustee seeking to recover
were raised as to whether one State had to recognize the relief given to a
debtor by another State [citing James and Millar]. Uniformity among
state debtor insolvency laws was an impossibility and the practice of pass
ing private bankruptcy laws was subject to abuse if the legislators were
less than honest. Thus, it is not surprising that the Bankruptcy Clause
was introduced during discussion of the Full Faith and Credit Clause.”
Id., at 472 (citations omitted).

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property in the hands of the State on the grounds that the
transfer was a voidable preference.” Id., at 454.
The fact that transfer recovery proceedings fall outside
any possible in rem exception to sovereign immunity is con
firmed by United States v. Nordic Village, Inc., 503 U. S. 30
(1992), which involved similar facts. There, the Bankruptcy
Trustee filed a transfer avoidance action against the United
States, in order to recover a recent payment the debtor had
made to the Internal Revenue Service on a tax debt. See
id., at 31. After determining that the United States had
not waived its sovereign immunity, the Court rejected the
trustee’s alternative argument based on in rem jurisdiction.
As the Court explained, “[r]espondent sought to recover a
sum of money, not ‘particular dollars,’ so there was no res to
which the court’s in rem jurisdiction could have attached.”
Id., at 38 (quoting Begier v. IRS, 496 U. S. 53, 62 (1990); cita
tions omitted and emphasis deleted).8
The majority attempts to evade Nordic Village by claim
ing that “the trustee in this case, unlike the one in Nordic
Village, seeks, in the alternative, both return of the ‘value’
of the preference, . . . and return of the actual ‘property
transferred.’ ” Ante, at 372, n. 10 (quoting 11 U. S. C.
§ 550(a)). But where, as here, the property in question is
8 Begier involved funds held by the debtor in statutory trust for the
United States—so its analysis of those “particular dollars” does not help
the respondent in this case. 496 U. S., at 62 (emphasis deleted). Nor
does United States v. Whiting Pools, Inc., 462 U. S. 198 (1983), support
the majority’s effort. In Whiting Pools, the United States waived its
immunity by filing suit. See id., at 200–201; see also Nordic Village, 503
U. S., at 39 (“The Court’s opinion in Whiting Pools contains no discussion
of § 106(c) [the waiver provision]”). Furthermore, in Whiting Pools the
Government possessed merely a secured interest in the property on the
basis of a tax lien, see 462 U. S., at 202. By contrast, here, as in Nordic
Village, it is uncontested that the State owns the funds, barring any subse
quent transfer by operation of bankruptcy law. See 503 U. S., at 39
(“A suit for payment of funds from the Treasury is quite different from a
suit for the return of tangible property in which the debtor retained
ownership”).

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money, there is no practical distinction between these two
options, and surely we did not reach the result in Nordic
Village because of an accident of pleading. Moreover, it is
hardly clear that the trustee in Nordic Village failed to ask
for a “return” of the “ ‘property transferred,’ ” ante, at 372,
n. 10, and the majority does not cite anything to support
its assertion. See also Nordic Village, supra, at 31 (“[T]he
trustee . . . commenced an adversary proceeding . . . seeking
to recover, among other transfers, the $20,000 paid . . . to the
IRS”); In re Nordic Village, Inc., 915 F. 2d 1049, 1051 (CA6
1990) (“The trustee subsequently initiated a proceeding to
recover several unauthorized post-petition transfers, includ
ing the transfer to the IRS”).
In light of the weakness of its historical evidence that the
States consented to be sued in bankruptcy proceedings, the
majority’s effort to recast respondent’s action as in rem is
understandable, but unconvincing.
* * *
It would be one thing if the majority simply wanted to
overrule Seminole Tribe altogether. That would be wrong,
but at least the terms of our disagreement would be trans
parent. The majority’s action today, by contrast, is difficult
to comprehend. Nothing in the text, structure, or history
of the Constitution indicates that the Bankruptcy Clause, in
contrast to all of the other provisions of Article I, manifests
the States’ consent to be sued by private citizens.
I respectfully dissent.