dissenting.
By enacting the Americans with Disabilities Act (ADA) and the Rehabilitation Act, Congress has, in my opinion, attempted to expand the scope of substantive constitutional rights under the Fourteenth Amendment by subjecting state action that incidentally burdens the disabled to a higher level of judicial, scrutiny than what the Supreme Court held to be required by the Constitution in City of Cleburne v. Cleburne Living Ctr. Inc., 473 U.S. 432, 446, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) (holding that state action affecting the disabled is constitutional if “rationally related to a legitimate government purpose”). In light of the Supreme Court’s landmark decision in City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 2164, 138 L.Ed.2d 624 (1997) (reaffirming that Congress cannot expand the substantive scope of the Fourteenth Amendment), and this Court’s recent decision in Brown v. North Carolina Div. of Motor Vehicles, 166 F.3d 698, 705 (4th Cir.1999) (striking down a regulation promulgated under the ADA in light of Boeme and Cleburne), I am constrained to conclude that Congress exceeded its power under Section 5 of the Fourteenth Amendment in enacting the ADA and the Rehabilitation Act. Because Congress has failed validly to abrogate the State of Maryland’s Eleventh Amendment immunity, and the State of Maryland has not waived its Eleventh Amendment immunity by accepting federal funds, I respectfully dissent.1
I.
It is well established that immunity under the Eleventh Amendment affects our subject matter jurisdiction. See Brown v. North Carolina Div. of Motor Vehicles, 166 F.3d 698, 701 (4th Cir.1999). Thus, when raised by a State, as it was here by the State of Maryland, this Court must first address whether Eleventh Amendment immunity is applicable.2 See Wisconsin Dep’t of Corrections v. Schacht, 524 U.S. 381, 118 S.Ct. 2047, 2052, 141 L.Ed.2d 364 (1998) (holding that a court can ignore Eleventh Amendment immunity only if a *226state fails to raise the question). For the reasons that follow, I conclude that this suit should have been dismissed for lack of subject matter jurisdiction. See Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 118 S.Ct. 1003, 1012, 140 L.Ed.2d 210 (1998) (“Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.” (internal quotation marks omitted)).
The Eleventh Amendment provides as follows:
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
U.S. Const, amend. XI. The Eleventh Amendment not only prohibits suits brought against States in federal court by citizens of other States, but also prohibits suits, such as the one here, brought against a State in federal court by its own citizens. See Hans v. Louisiana, 134 U.S. 1, 15-16, 10 S.Ct. 504, 33 L.Ed. 842 (1890). Thus, whether this Court has subject matter jurisdiction depends on whether the State of Maryland’s Eleventh Amendment immunity has been either abrogated or waived.
A.
In Seminole Tribe v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996), the Supreme Court recently considered the issue of when Congress can properly abrogate a State’s Eleventh Amendment immunity. In Seminole, the Supreme Court specifically held that Congress had no authority to abrogate a State’s sovereign immunity under the Eleventh Amendment when it enacted legislation pursuant to the Commerce Clause. See id. at 59-73, 116 S.Ct. 1114. In contrast, Congress may abrogate a State’s sovereign immunity when it enacts valid legislation pursuant to Section 5 of the Fourteenth Amendment.3 See Fitzpatrick v. Bitzer, 427 U.S. 445, 456, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976) (“[T]he Eleventh Amendment, and the principle of state sovereignty which it embodies, are necessarily limited by the enforcement provisions of § 5 of the Fourteenth Amendment.” (citation omitted)). Thus, whether Congress had the authority to abrogate the State of Maryland’s Eleventh Amendment immunity turns on whether Congress had the authority under Section 5 of the Fourteenth Amendment to enact the ADA and the Rehabilitation Act. See Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985) (holding that the courts must ensure that Congress was “acting pursuant to § 5 of the Fourteenth Amendment”).
The Fourteenth Amendment provides, in pertinent part, as follows:
Section 1. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. *227Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
U.S. Const, amend. XIV, §§ 1, 5. Section 5 “is a positive grant of legislative power authorizing Congress to exercise its discretion in determining whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment.” Katzenbach v. Morgan, 384 U.S. 641, 651, 86 S.Ct. 1717 (1966). In fact, “when properly exercising its power under § 5, Congress is not limited by the same Tenth Amendment constraints that circumscribe the exercise of its Commerce Clause powers.” EEOC v. Wyoming, 460 U.S. 226, 243 n. 18, 103 S.Ct. 1054, 75 L.Ed.2d 18 (1983) (emphasis added) (citing City of Rome v. United States, 446 U.S. 156, 179, 100 S.Ct. 1548, 64 L.Ed.2d 119 (1980)). Congress’s power to enact legislation under the Fourteenth Amendment is not unlimited, however. See, e.g., City of Boeme v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 2171-72, 138 L.Ed.2d 624 (1997) (holding that the Religious Freedom Restoration Act is “a considerable congressional intrusion into the States’ traditional prerogatives,” and that Congress exceeded its power under the Fourteenth Amendment in enacting the statute); Gregory v. Ashcroft, 501 U.S. 452, 469, 111 S.Ct. 2395,115 L.Ed.2d 410 (1991) (stating that “the Fourteenth Amendment does not override all principles of federalism”); Oregon v. Mitchell, 400 U.S. 112, 128, 91 S.Ct. 260, 27 L.Ed.2d 272 (1970) (noting that “[a]s broad as the congressional enforcement power is, it is not unlimited”). For instance, Congress’s power “extends only to enforcing the provisions of the Fourteenth Amendment.” Boeme, 117 S.Ct. at 2164 (emphasis added) (internal quotation marks and alteration omitted). Of perhaps equal importance, Congress does not possess “the power to determine what constitutes a constitutional violation.” Id. “In other words, Congress has the power to remedy violations of constitutional rights, not [the power] to define the substance of those rights.” Brown, 166 F.3d at 705.
The standard for determining whether an exercise of Congress’s Section 5 power is appropriate was set forth in Boeme: The injury to be prevented or remedied must be a “constitutional violation[ ],” Boeme, 117 S.Ct. at 2163, and the means employed must be congruent and proportional to any such violation, see id. at 2164. Although Congress has the power to remedy violations of constitutional rights, it bears repeating that the Supreme Court in Boeme specifically rejected the notion that Congress can expand or define the substantive scope of constitutional rights using its Section 5 powers:
Congress does not enforce a constitutional right by changing what the right is. It has been given the power “to enforce,” not the power to determine what constitutes a constitutional violation. Were it not so, what Congress would be enforcing would no longer be, in any meaningful sense, the “provisions of [the Fourteenth Amendment].”
Boerne, 117 S.Ct. at 2164 (alteration in original).
In Boerne, the Supreme Court decided that, in enacting the Religious Freedom Restoration Act (RFRA), Congress had impermissibly attempted to expand the scope of substantive constitutional rights under the Fourteenth Amendment by subjecting generally applicable state laws that had the effect of burdening religion to a higher level of judicial scrutiny than that required by the Supreme Court in Employment Division v. Smith, 494 U.S. 872, 887-88, 110 S.Ct, 1595, 108 L.Ed.2d 876 (1990). In sum, the Supreme Court held that Congress could not create a substantive constitutional right to “strict scrutiny” for state action to which the Supreme Court had already determined that a lower standard of review should apply. See Boerne, 117 S.Ct. at 2170. In so holding, the Supreme Court made the folloydng observation about RFRA:
The stringent test RFRA demands of state laws reflects a lack of propor*228tionality or congruence between the means adopted and the legitimate end to be achieved. If an objector can show a substantial burden on his free exercise, the State must demonstrate a compelling governmental interest and show that the law is the least restrictive means of furthering its interest.... Laws valid under Smith would fall under RFRA without regard to whether they had the object of stifling or punishing free exercise. We make these observations ... to illustrate the substantive alteration of [Smith’s] holding attempted by RFRA. Even assuming RFRA would be interpreted in effect to mandate some lesser test, say one equivalent to intermediate scrutiny, the statute nevertheless would require searching judicial scrutiny of state law with the attendant likelihood of invalidation. This is a considerable congressional intrusion into the States’ traditional prerogatives and general authority to regulate for the health and welfare of their citizens.
Id. at 2171.
In City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985), the Supreme Court expressly rejected an attempt to make the mentally disabled a suspect, or quasi-suspect, class for Equal Protection purposes:
[W]e conclude for several reasons that the Court of Appeals erred in holding mental retardation a quasi-suspect classification calling for a more exacting standard of judicial review than is normally accorded economic and social legislation.
Cleburne, 473 U.S. at 442, 105 S.Ct. 3249. The Supreme Court determined that state action placing incidental burdens on the mentally disabled would be subject to rational basis scrutiny. See id. at 446, 105 S.Ct. 3249 (holding that state action affecting the mentally disabled is constitutional if “rationally related to a legitimate governmental purpose”); see also Doe v. University of Md. Medical Sys. Corp., 50 F.3d 1261,1267 (4th Cir.1995) (extending rational basis scrutiny to all disabilities). As the First Circuit recently noted:
Congress’ section five enforcement power, as it pertains to the Equal Protection Clause in cases not involving suspect or quasi-suspect classes or fundamental interests, is limited to the elimination of arbitrariness or the effects of arbitrary government action, and does not permit Congress to prohibit or otherwise target reasonable state decisions or practices.
Mills v. Maine, 118 F.3d 37, 47 (1st Cir. 1997); see also Brown, 166 F.3d at 706-07 (noting that arbitrary and irrational discrimination violates the Equal Protection Clause under rational basis scrutiny).
A careful review of the Supreme Court’s decisions in Boeme and Cleburne, reveals an amazing similarity between the ADA and RFRA. As Judge Smith recently noted:
Both RFRA and the ADA purport to establish greater rights for individuals against the states by increasing the measure of judicial scrutiny for conflicting state actions to a level higher than the Supreme Court has found appropriate under the Fourteenth Amendment. ... [T]he ADA increases the judicial scrutiny level applicable for disabled persons by requiring a closer nexus between the governmental purpose and the governmental means than presently exists under rational basis scrutiny. The ADA mandates an affirmative justification for a state action that has the effect of incidentally burdening these non-suspect classes of persons; a state’s actions are no longer presumptively valid if rationally related to the interests that they serve. Instead, the state must make “reasonable accommodations” for the disabled — and only once the state can show that it cannot “reasonably accommodate” will the courts validate the state’s chosen policy.
Coolbaugh v. Louisiana, 136 F.3d 430, 440-41 (5th Cir.1998) (Smith, J., dissent*229ing) (internal citation omitted). A panel of this Court recently came to the same conclusion, ie., the ADA, like RFRA, imper-missibly attempts to subject state action to higher level of judicial scrutiny than the Supreme Court has found appropriate under the Fourteenth Amendment. See Brown, 166 F.3d at 708.
Although the panel in Brown considered the validity of a regulation promulgated under the ADA, rather than the ADA itself, I believe that the panel’s reasoning controls the issue before us today. In holding that the regulation at issue did not lie within the scope of Congress’s enforcement power under the Fourteenth Amendment, the panel in Brown specifically held that the level of judicial scrutiny required by the ADA was incompatible with the more lenient rational basis test established in Cleburne. See id. In fact, as this Court noted, the ADA was simply not intended to remedy violations of the standard established in Cleburne. See id. Rather, the ADA was intended to effect a “ ‘substantive alteration of [Cleburne’s] holding.’ ” Id. (quoting Boeme, 117 S.Ct. at 2171). As a result, State actions that are rationally based and perfectly constitutional under Cleburne are invalid under the ADA. In that crucial respect, the ADA is nearly indistinguishable from RFRA, ie., the ADA is definitional rather than remedial. Indeed, as Judge Smith observed, by changing but a few words in Boeme, the Supreme Court could well have been speaking about the ADA:
The stringent test [the ADA] demands of state laws reflects a lack of proportionality or congruence between the means adopted and the legitimate end to be achieved. If an objector can show a substantial burden [of his rights under the ADA], the State must [show that it cannot reasonably accommodate him].... Laws valid under [Cleburne ] would fall under [the ADA] without regard to whether they [were rationally related to a legitimate governmental purpose]. ' We make these observations ... to illustrate the substantive alteration of [Cleburne’s] holding attempted by [the ADA]. Even assuming [the ADA] would be interpreted in effect to mandate some lesser test, say one equivalent to intermediate scrutiny, the statute nevertheless would require searching judicial scrutiny of state law with the attendant likelihood of invalidation. This is a considerable congressional intrusion into the States’ traditional prerogatives and general authority to regulate for the health and welfare of their citizens.
Boeme, 117 S.Ct. at 2171.
Prior to this Court’s decision in Brown, five Circuits published opinions upholding the ADA as a valid exercise of Congress’s Section 5 powers. See Kimel v. Florida Bd. of Regents, 139 F.3d 1426, 1433 (11th Cir.1998), cert. granted, — U.S.-, 119 S.Ct. 901, 142 L.Ed.2d 901 (1999); Autio v. AFSCME, Local 3139, 140 F.3d 802, 806 (8th Cir.1998), vacated, 140 F.3d 802, reh’g en banc, 157 F.3d 1141 (affirming district court’s decision upholding the ADA by an evenly divided vote); Coolbaugh v. Louisiana, 136 F.3d 430, 432 (5th Cir.), cert. denied, — U.S. -, 119 S.Ct. 58, 142 L.Ed.2d 45 (1998); Clark v. California, 123 F.3d 1267, 1270 (9th Cir.1997), cert. denied, — U.S.-, 118 S.Ct. 2340, 141 L.Ed.2d 711 (1998); and Crawford v. Indiana Dep’t of Corrections, 115 F.3d 481, 487 (7th Cir.1997). Despite that fact, it is worth noting that a number of appellate and district court judges have come to the opposite conclusion. See Autio, 157 F.3d at 1141 (Bowman, C.J., & Wollman, Beam, Loken, Hansen, & Morris Sheppard Arnold, JJ.) (concluding that Congress exceeded its power under Section 5 of the Fourteenth Amendment in enacting the ADA); Kimel, 139 F.3d at 1444 (Cox, J., dissenting) (noting that the disabled enjoy no special rights under the Equal Protection Clause); Coolbaugh, 136 F.3d at 439 (Smith, J., dissenting) (noting that in the wake of Boerne, Congress could not, consistent with the Fourteenth Amendment, increase the level of scrutiny for states’ *230actions that incidently burden disabled persons); Kilcullen v. New York State Dep’t of Transp., 33 F.Supp.2d 133 (N.D.N.Y.1999) (same); Hedgepeth v. Tennessee, 33 F.Supp.2d 668, 675 (W.D.Tenn. 1998) (same); Garrett v. Board of Trustees of University of Ala. in Birmingham, 989 F.Supp. 1409 (N.D.Ala.1998) (same); Brown v. North Carolina Div. of Motor Vehicles, 987 F.Supp. 451 (E.D.N.C.1997) (same); Nihiser v. Ohio E.P.A., 979 F.Supp. 1168, 1170-76 (S.D.Ohio 1997) (same). Like the aforementioned judges, I conclude — and would so conclude even without this Court’s recent decision in Brown, which I believe to be controlling here — that Congress exceeded its power under Section 5 of the Fourteenth Amendment by enacting the ADA.
Congress does not possess the power under Section 5 of the Fourteenth Amendment to supersede a Supreme Court decision construing the substantive rights embodied by the Constitution. See United States v. Dickerson, 166 F.3d 667, 687 (4th Cir.1999). In Cleburne, the Supreme Court held that the disabled are not a class entitled to increased Fourteenth Amendment protection. In light of the Supreme Court’s decision in Cleburne, Congress does not have the power to declare otherwise in the ADA. See Marburg v. Madison, 5 U.S. (1 Cranch) 187, 2 L.Ed. 60 (1803). Following this Court’s decision in Brown, which faithfully applied the dictates of Boeme and Cleburne, I am constrained to conclude that Congress exceeded its authority under Section 5 of the Fourteenth Amendment in attempting to abrogate Maryland’s sovereign immunity with the ADA.
B.
In Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985), the Supreme Court considered whether a State waives its Eleventh Amendment immunity by accepting federal funds under a federal program enacted pursuant to the Spending Clause. In
Atascadero, the Supreme Court specifically held that “the mere receipt of federal funds cannot establish that a State has consented to suit in federal court.” Id. at 246-47, 105 S.Ct. 3142. Rather, the statute in question must expressly “condition participation in the program funded under the Act on a State’s consent to waive its constitutional immunity.” Id. at 247, 105 S.Ct. 3142.
In response to the Supreme Court’s decision in Atascadero, Congress amended the Rehabilitation Act as follows:
(1) A State shall not be immune under the Eleventh Amendment of the Constitution of the United States from suit in Federal court for a violation of section 504 of the Rehabilitation Act of 1973 ... or the provisions of any other Federal statute prohibiting discrimination by recipients of Federal financial assistance.
(2) In a suit against a State for a violation of a statute referred to in paragraph (1), remedies (including remedies both at law and in equity) are available for such a violation to the same extent as such remedies are available for such a violation in the suit against any public or private entity other than a State.
42 U.S.C.A. § 2000d-7(a) (West 1994). Without question, Congress, by enacting § 2000d-7(a), has expressed its intent to abrogate the States’ Eleventh Amendment immunity. See Franklin v. Gwinnett County Pub. Sck, 503 U.S. 60, 72, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992) (noting that Congress, by enacting § 2000d-7, expressed its intent to “abrogate” the States’ Eleventh Amendment immunity under the Rehabilitation Act). I question, however, whether the language of § 2000d-7 sufficiently “conditions” a State’s receipt of federal funds under the Rehabilitation Act on that State’s “consent” to waive its Eleventh Amendment immunity.
As the Supreme Court recently noted, the doctrines of abrogation and waiver are “completely unrelated.” Seminole Tribe, 517 U.S. at 63, 116 S.Ct. 1114. With re*231spect to the Eleventh Amendment, abrogation deals with Congress’s power under Section 5 of the Fourteenth Amendment to subject unconsenting States to federal court jurisdiction. See Atascadero, 473 U.S. at 242-46, 105 S.Ct. 3142. In contrast, waiver deals with, among other things, Congress’s power under the Spending Clause to condition the receipt of federal funds on a State’s consent-to federal jurisdiction. See id. at 246-47, 105 S.Ct. 3142. Thus, while statutory language may be sufficient to satisfy the demands of abrogation, it may nonetheless fail to satisfy the demands of waiver. Here, the language in question simply placed the State of Maryland on notice that it could be sued in federal court if the Rehabilitation Act was a valid exercise of Congress’s power under Section 5 of the Fourteenth Amendment. Indeed, the statute did not use the type of words or phrases, e.g. “if,” “provided that,” “when,” “after,” “as soon as,” and “subject to,” that would indicate that the receipt of funds had been made conditional. Because § 2000d-7(a) did not, as the Supreme Court requires, “expressly condition” the State of Maryland’s receipt of federal funds under the Rehabilitation Act on- its consent to waive its constitutional immunity, there is no indication that the State of Maryland knowingly and voluntarily waived its Eleventh Amendment immunity.
II.
Because the State of Maryland’s Eleventh Amendment immunity was neither abrogated nor waived, this case should have been dismissed for lack of subject matter jurisdiction. Accordingly, I respectfully dissent.
. In enacting the ADA, Congress announced its intent "to invoke the sweep of congressional authority, including the power to enforce the [F]ourteenth [AJmendment and to regulate commerce, in order to address the major areas of discrimination faced day-to-day by people with disabilities.” 42 U.S.C.A. § 12101(b)(4) (West 1995). Because of the posture of this case, however, I need not address whether Congress has the authority to apply the ADA to state prisons under the Commerce Clause. In their suit, Plaintiffs sought monetary damages and injunctive relief. It is undisputed, however, that Plaintiffs sued Defendants in their official capacities only. As a result, only the State of Maryland is potentially liable for monetary damages. As noted above, Congress cannot abrogate the State of Maryland’s Eleventh Amendment immunity when enacting legislation pursuant to the Commerce Clause. See Seminole Tribe of Florida v. Florida, 517 U.S. 44, 59-73, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). In addition, none of the Plaintiffs, most of whom are no longer incarcerated by the State of Maryland, are currently housed at the Roxbury Correctional Institution (RCI) in Hagerstown, Maryland, the institution to which all of Plaintiffs' claims were directed, As a result, Plaintiffs' claims for injunctive relief are moot. See "Williams v. Griffin, 952 F.2d 820, 823 (4th Cir.1991) (holding that prisoner's transfer to another facility mooted his claims for injunctive relief); Taylor v. Rogers, 781 F.2d 1047, 1048 n. 1 (4th Cir. 1986) (holding that prisoner’s transfer mooted a request for declaratory and injunctive relief).
. The majority erroneously states • that the State of Maryland has conceded that "[t]he defense of sovereign immunity is not available.” Ante at 223 (citing Appellees’ S. Br. at 37). Although the State of Maryland has conceded that “[t]he defense of qualified immunity is not available,” (Appellees’ S. Br. at 37), the State of Maryland specifically argues that if "neither the ADA nor the Rehabilitation Act can constitutionally be extended to state prisons as an exercise of Congress’ enforcement power under § 5 of the Fourteenth Amendment, ... then the Inmates’ claims in federal court are barred in their entirety by the Eleventh Amendment,” (Appellees' S. Br. at 37).
. In addition, Congress must express its intent to abrogate the States’ Eleventh Amendment immunity by providing "a clear legislative statement,” i.e., by “making its intention unmistakably clear in the language of the statute.” Seminole Tribe v. Florida, 517 U.S. 44, 54, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996) (citing Blatchford v. Native Village of Noatak & Circle Village, 501 U.S. 775, 785, 111 S.Ct. 2578, 115 L.Ed.2d 686 (1991), and Dellmuth v. Muth, 491 U.S. 223, 224-25, 109 S.Ct. 2397, 105 L.Ed.2d 181 (1989)). Both parties agree that the ADA, see 42 U.S.C.A. § 12202 (West 1995) ("A State shall not be immune under the [Eleventh [A]mendment ....”), and the Rehabilitation Act, see 42 U.S.C.A. § 2000d-7(a)(1) (West 1994) (“A State shall not be immune under the Eleventh Amendment ....”), include clear statements of Congress's intent to abrogate the States' Eleventh Amendment immunity.