concurring in part, and dissenting in part.
I concur entirely in the majority’s conclusion that Congress did not validly abrogate the states’ Eleventh Amendment immunity when, under Title II of the ADA, it attempted to enforce the Equal Protection Clause. But, as I shall explain, I strongly disagree that, in enacting Title II, Congress validly abrogated states’ immunity from alleged due process violations of the kind plaintiff has brought. Just as Congress did not validly exercise its constitutional authority under § 5 of the Fourteenth Amendment when it sought, in Title II, to override states’ Eleventh Amendment immunity from equal protection claims, it likewise failed to do so with respect to due process claims.
I.
Joseph M. Popovich filed a complaint in 1995 alleging that the Domestic Relations Division of the Cuyahoga County Court of Common Pleas (DRD) discriminated against him in violation of Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12131-12134. Popovich also argued that the DRD retaliated against him after he filed a discrimination charge against the court with the United States Department of Justice.
Popovich, who suffers from partial hearing loss, claimed that the DRD violated Title II when it refused to provide him with real-time captioning services during custody hearings concerning his daughter. He further claimed that the DRD’s effort to accommodate him by providing an FM amplification system was not reasonable because the system’s headphones had given him an ear infection. Popovich also complained of numerous procedural delays which caused the hearings to drag on over four years. The delays were caused by the combination of a temporary restraining order against Popovich on motion by his ex-wife, a referee’s illness, motions regarding Popovich’s hearing accommodation, and unexplained scheduling delays.
Following a jury trial, Popovich was awarded $400,000 in compensatory damages. The DRD filed post-trial motions, which, with one exception, were rejected. The DRD then appealed to this court.
In its appeal, the DRD advanced arguments based on judicial immunity and the insufficiency of the lower court’s findings. Popovich responded to each of those arguments in turn. Only in the DRD’s reply brief was the issue of its Eleventh Amendment immunity raised. In light of the obvious importance of the Eleventh Amendment issue and the split in circuit authority, the panelists thought this abbreviated, afterthought reference to the Eleventh Amendment immunity defense was troublesome, particularly since the principle of state sovereignty that the Eleventh Amendment codifies directs us to consider carefully legislative actions that curb its protections. To assist our effort to reach an informed decision on the matter and provide the parties a fair hearing, we, the original panelists, directed the parties to submit letter briefs specifically addressing Eleventh Amendment immunity and the ADA. We did so after satisfying ourselves that it is well settled that Eleventh Amendment state sovereign immunity could properly be raised for the first time on appeal. Popovich v. Cuyahoga County, 227 F.3d 627, 631-33 (6th Cir.2000).
*822The parties argued that Congress’s abrogation of Eleventh Amendment immunity rested on congressional protection of the Fourteenth Amendment’s equal protection principle. Neither party suggested that Congress acted to enforce any due process protection. In light of the argument before the court, and mindful that federal courts are forbidden to issue advisory opinions, U.S. Const, art. III, § 2, cl. 1; see Morrison v. Olson, 487 U.S. 654, 677, 108 S.Ct. 2597, 101 L.Ed.2d 569 (1988), we rested our decision on the equal protection argument.
We held that equal protection was not a constitutionally sufficient basis on which to rest the ADA’s abrogation of Eleventh Amendment immunity, reasoning that since government classifications involving disabled individuals receive rational review, the ADA prohibited a much broader swath of conduct than did the Fourteenth Amendment’s Equal Protection Clause. The equal protection reasoning of our decision was ultimately approved and adopted by the Supreme Court in Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001), in which the Court held that Congress did not validly abrogate states’ Eleventh Amendment immunity when it passed Title I of the ADA.
Popovich moved for rehearing and a majority of this court’s active members agreed to rehear the case en banc. In the interim, the Department of Justice intervened on behalf of Popovich and an ami-cus brief was submitted on his behalf by the Ohio Legal Rights Service (OLRS). Oddly, by the time the petition for rehearing en banc was granted, a new ADA theory was being advanced, not by Popo-vich, but by the amicus and the interve-nor. Later, at the en banc hearing, some members of the court inquired of counsel concerning the novel and unbriefed “due process-type” theory, even though the parties had not argued it. As a result, much of the argument before the en banc court differed markedly from the equal protection theory the parties had briefed and argued before the original panel and had again briefed and attempted to argue before the en banc court. Nevertheless, at what surely will come as a surprise to the parties, the majority, unbidden, save for the urging of an amicus and an intervenor, finds that it is through enforcement of the Due Process Clause of the Fourteenth Amendment, and not, as the parties thought, the Equal Protection Clause, that Congress has successfully abrogated the states’ Eleventh Amendment immunity.
II.
It is troubling, to put it mildly, that the strongest advocacy for the theory that the Due Process Clause of the Fourteenth Amendment provides special protection for parents in custody or termination proceedings came from one of the members of the court at oral argument, not the parties, and has now become the basis for the court’s judgment in this case.
Since the due process theory is a court-conjured rationale for denying Ohio Eleventh Amendment immunity, it is appropriate to ask whether the court should, upon en banc rehearing, address the due process theory of ADA abrogation at all. The members of the court are almost evenly divided on the critically important issue we are deciding: whether, in Title II, Congress has validly overridden the states’ Eleventh Amendment immunity. The issue is novel. There is not a single appellate case on point in this circuit or elsewhere. Certainly, there is considerable interest in addressing the majority’s novel due process issue, but, in my view, the proper ease for doing that is one in which the issue is addressed and decided in the lower court — ours, after all, is a reviewing *823court — and then fully briefed and argued here. I object strongly to the majority’s decision to invent for the plaintiff a theory of recovery he did not raise, brief, or argue, and to which the defendant has not had a suitable opportunity to respond.
This disapproval is not merely a matter of personal preference; it is, as I shall demonstrate, a position well supported by the appellate rules of practice and this court’s precedent.
A.
1.
En banc proceedings are governed by Fed. R.App. P. 35, which states, in pertinent part:
An en banc hearing or rehearing is not favored and ordinarily will not be ordered unless:
(1) en banc 'consideration is necessary to secure or maintain uniformity of the court’s decisions; or
(2) the proceeding involves a question of exceptional importance.
Fed. R.App. P. 35(a) (emphasis added). This clear language cautions courts to exercise en banc review with circumspection. The Sixth Circuit has expounded further upon this rule:
A suggestion for rehearing en banc is an extraordinary procedure which is intended to bring to the attention of the entire Court a precedent-setting error of exceptional public importance or an opinion which directly conflicts with prior Supreme Court or Sixth Circuit precedent.
6th Cir. R. 35(c) (emphasis added). In the matter before us there is no precedent-setting error and there is no conflict with prior precedent. Indeed, in Garrett, the Supreme Court affirmed the reasoning of this court’s original panel. That should dispose conclusively of the matter. The only reason there is any uncertainty in this case is because at oral argument, one or two members of this court manufactured confusion. The equal protection theory of ADA abrogation — the argument advanced by Popovich — failed. That avenue of reversal foreclosed, the majority gamely conducts an end-run around the precedent and advances its new theory based on due process. Granted, when deciding Garrett the Supreme Court left open the question of Title II and whether it abrogated Eleventh Amendment immunity, but that does not give license to lower courts to reframe appellate issues on rehearing in order to avoid results with which they personally disagree. The en banc panel’s effort to create a dispute worthy of reconsideration renders the admonition in Fed. R.App. P. 35 a nullity. En banc panels should not create conflicts merely to allow the pronouncement of new law. If this body wishes to consider Eleventh Amendment abrogation by the ADA under a due process theory, undoubtedly it will soon have that opportunity. In considering and deciding this case on a “due process theory,” the en banc court is not “rehearing” anything; it is conducting an original hearing, and even then, on an issue the litigants have not presented.
2.
The case precedent in this circuit instructs courts to withhold judgment on issues not fully developed by the briefs or in the record. We have observed:
“[Ijssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived. It is not sufficient for a party to mention a possible argument in the most skeletal way, leaving the court to ... put flesh on its bones.”
McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir.1997) (quoting Citizens Awareness Network, Inc. v. United States Nuclear Regulatory Comm’n, 59 F.3d 284, 293-94 (1st Cir.1995)); see Boroff v. Van Wert *824City Bd. of Educ., 220 F.3d 465, 471 (6th Cir.2000) (citing United States v. Elder, 90 F.3d 1110, 1118 (6th Cir.1996)), cert. denied, 532 U.S. 920, 121 S.Ct. 1355, 149 L.Ed.2d 286 (2001). Of relevance to what is being done in this case, we cautioned in United States v. Phibbs, 999 F.2d 1053 (6th Cir.1993), that “it is not our function to craft an appellant’s argument.” Id. at 1080 n. 12. We have held that unbriefed issues are considered waived and unre-viewable. Thurman v. Yellow Freight Sys., Inc., 90 F.3d 1160, 1172 (6th Cir.1996). It is for the parties, not the judges of this court, to raise important constitutional issues for our review, and only when such issues are raised, presented, and decided in the lower court. Our duty to decide such grave questions as the constitutional validity of an Act of Congress is properly discharged only when we have the benefit of a lower court decision, followed by full briefing and argument by the parties. Sua sponte rulings on issues of constitutional import first conjured by the court in its internal deliberations are plainly at odds with our duty to give such issues fully informed and deliberate consideration.
The Supreme Court has demonstrated its allegiance to this prudent approach in declining to decide the very issue before this panel. In Pennsylvania Department of Corrections v. Yeskey, 524 U.S. 206, 118 S.Ct. 1952, 141 L.Ed.2d 215 (1998), the Supreme Court declined to reach the fully briefed argument that Title II of the ADA violates the Eleventh Amendment. As the Court noted, even though the parties had briefed the argument, neither the district court nor the court of appeals had addressed the issue in its opinions and it did not wish to decide such an important matter without the lower courts’ views. Id. at 212-13, 118 S.Ct. 1952. It is a wonder why this court would proceed where the Supreme Court would not.
To be sure, the briefs of the amicus and the intervenor presented due process arguments. The amicus OLRS advanced due process as one of three grounds for affirmance of the district court’s judgment. In its intervenor’s brief, the DOJ’s due process argument arises as part of its general contention that Congress had before it a large body of evidence showing unconstitutional state action in the provision of public services to the disabled. The DOJ argued that Title II embodies a variety of constitutional rights, including Fourteenth Amendment due process rights. It is difficult to read either of these arguments as sufficiently briefing the difficult and abstruse due process issue the majority has handed to Popovich.
Despite the paucity of due process argument presented in the briefs, at oral argument one or two members of the court made repeated attempts to interest Popo-vich’s counsel in the due process theory he had never advanced. In their “questions,” these members attempted to explore a theory of Eleventh Amendment abrogation under a due process theory. They got very little clarification from Popovich’s understandably surprised counsel. “One need only review the exchange at the en banc hearing of this case to know that many ‘questions’ posed by lawyers, and judges, while phrased in the form of questions are statements.” United States v. Susskind, 4 F.3d 1400, 1410 (6th Cir.1993) (en banc) (Merritt, J., dissenting). Despite the persistence of some members of the court, counsel for the parties failed to seize upon the due process argument.
B.
To summarize, the rule in this circuit is that it is not the appellate court’s function to craft a party’s argument. Absent some pressing concern, skeletal contentions are best left unaddressed. En banc proceed*825ings represent an opportunity to clarify disputed matters of law fully vetted via lower court decisions, panel review, and en banc briefing. They are not occasions for the advancement of new constitutional theories unexplored by the parties with the attendant risk of confusing important areas of constitutional law. In Garrett, the Supreme Court declared: “We are not disposed to decide the constitutional issue whether Title II ... is appropriate legislation under § 5 of the Fourteenth Amendment when the parties have not favored us with briefing on the statutory question.” Garrett, 531 U.S. at 360 n. 1, 121 S.Ct. 955. This court should abide by that same caution. The parties have not sufficiently presented, and the court has not sufficiently considered, the due process issue; it is for another day.
III.
Ignoring these compelling reasons for not addressing the due process theory, the majority has chosen to do so and, worse, has reached an erroneous conclusion. Consequently, I, too, must address the substantive merits of that argument.
Congressional efforts to abrogate Eleventh Amendment immunity should proceed mindful of the Supreme Court’s admonition that “[a]ny suggestion that Congress has a substantive, non-remedial power under the Fourteenth Amendment is not supported by our case law.” City of Boerne v. Flores, 521 U.S. 507, 527, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997). True, “Congress’ power ‘to enforce’ the [Fourteenth] Amendment includes the authority both to remedy and to deter violation of rights guaranteed thereunder by prohibiting a somewhat broader swath of conduct, including that which is not itself forbidden by the Amendment’s text.” Kimel v. Florida Bd. of Regents, 528 U.S. 62, 81, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000) (quoting City of Boerne, 521 U.S. at 518, 117 S.Ct. 2157). But Congress’s efforts at remedial legislation cannot impermissibly effect a substantive redefinition of the Fourteenth Amendment. Id.
Our primary focus in this case should be whether, in enacting Title II of the ADA, Congress has validly abrogated the states’ Eleventh Amendment immunity. The answer is that it has not, and that answer is dictated by the Supreme Court’s Eleventh Amendment jurisprudence which must guide our analysis of the issue. As the Supreme Court stated in City of Boerne, and most recently developed in Garrett, abrogation of Eleventh Amendment immunity under the Fourteenth Amendment’s § 5 power is valid only if a court can: (1) identify the scope of the right at issue; and (2) ensure that Congress is truly “enforcing” that right by appropriate legislation. Garrett, 531 U.S. at 365-69, 121 S.Ct. 955. A statute is appropriately enforcing legislation under § 5 only if it is truly “remedial.” See Florida Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627, 638, 119 S.Ct. 2199, 144 L.Ed.2d 575 (1999). “[F]or Congress to invoke § 5, it must identify conduct transgressing the Fourteenth Amendment’s substantive provisions, and must tailor its legitimate scheme to remedying or preventing such conduct.” Id. at 639, 119 S.Ct. 2199. In enacting Title II, Congress has not properly invoked § 5 because it has failed to identify conduct transgressing the Fourteenth Amendment’s due process right and failed to tailor Title II to carefully remedy such conduct.
A.
As the Supreme Court stated in Garrett, “The first step ... is to identify with some precision the scope of the constitutional right at issue.” 531 U.S. at 365, 121 S.Ct. 955. Here, the constitutional right the majority claims is at issue is the Four*826teenth Amendment’s due process right. It should be obvious, however, that analyzing the plaintiffs claim as a due process right, and not an equal protection right, does not automatically remedy Title II’s Eleventh Amendment violation.
The majority conflates the task of defining the right at issue with the critical step of determining whether the statute is appropriate, remedial legislation. True, due process challenges merit different levels of review depending on the specific due process right enforced. However, the emotionally appealing argument made in the majority opinion that parents have due process rights in termination of custody proceedings does not obviate the need to confront and analyze the constitutional validity of Title II by first examining the Eleventh Amendment jurisprudence handed down by the Supreme Court.
Regardless of the right protected, if Congress wishes to legislatively abrogate the states’ constitutional protection afforded by the Eleventh Amendment, it must first identify a history or pattern of state transgression of the specific right in question. As a second step, the court must determine whether the remedy is “con-gruen[t] and proportional ]” to the transgression. City of Boerne, 521 U.S. at 520, 117 S.Ct. 2157. Casting the argument in terms of parental rights in child custody termination proceedings, the majority opinion finds that the Supreme Court “has unanimously agreed that ‘the interest of parents in their relationship with their children is sufficiently fundamental to come within the finite class of liberty interests protected by the Fourteenth Amendment.’ ” Maj. Op. at 814 (emphasis added) (quoting Santosky v. Kramer, 455 U.S. 745, 774, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (Rehnquist, J., dissenting)). Be that as it may, defining the scope of parents’ due process rights does not conclusively determine whether the legislation in question has met the Supreme Court’s well-settled criteria for overcoming the Eleventh Amendment. Properly focused on that task, I conclude that it is entirely clear that Congress met neither of the criteria for trumping the Eleventh Amendment: it did not make adequate findings of a pattern of state transgressions and the legislation does not create a congruent and proportional remedy.
B.
1.
Title II prohibits the exclusion of disabled individuals from participation in the activities of a public entity. 42 U.S.C. § 12132. Neither the language of the statute nor its legislative history give the slightest indication that when creating the statutory right, Congress identified a history or pattern of violations of disabled individuals’ due process rights. In particular, there is no mention in the statute, either in its statement of legislative purpose or elsewhere, of the rights of disabled parents in the conduct of child custody termination hearings. While Congress made ample findings of “discrimination,” almost all of the findings properly sound in equal protection, not due process. I do not question for a moment the fact that disabled individuals in our society have faced severe discrimination and hardship. But, the Supreme Court’s Eleventh Amendment jurisprudence requires specific findings of discriminatory state action. And those findings must include the conclusion that due process rights, in particular, were violated. The legislative history of Title II supports no such finding.
There is some indication in Title II’s legislative history that it was passed in response to discrimination in the provision of public services and accommodations. In an exhaustive examination of the legislative history, the intervenor in this case *827notes a body of data demonstrating that disabled individuals have been denied physical access to courts, the right to vote, and educational opportunities. But it is quite clear that Congress assessed such evidence of discrimination as denial of equal protection, not denial of due process. For instance, the Committee on Education and Labor found that due to discrimination, the disabled have been denied “the opportunity to compete on an equal basis with others....” H.R.Rep. No. 101— 485(11), at 29 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 310 (emphasis added). The Committee on the Judiciary wrote that “the goal [of Title II] is to eradicate the invisibility of the handicapped. Separate-but-equal services do not accomplish this central goal and should be rejected.” H.R.Rep. No. 101-485(111), at 50 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 473 (internal quotation marks, citation, and original alterations omitted). Finally, one of the ADA’s sponsors in the House of Representatives stated: “Title II of this act is designed to continue breaking down barriers to the integrated participation of people with disabilities in all aspects of community life.” 136 Cong. Rec. E1913, *E1916 (daily ed. May 22, 1990) (statement of Rep. Hoyer).
The court’s effort to advance the due process theory at oral argument only confirmed further that the findings Congress had before it sounded in equal protection. After considerable prompting from the bench to shift from an equal protection theory to a due process theory, and then only in response to a question from one of the judges, Popovich’s counsel asserted that Congress had made findings that Title II was intended to remedy due process violations. Seizing upon Justice Breyer’s dissenting opinion in Garrett, counsel invited our attention to Appendix C of the Breyer dissent, which contains a description of the submissions offered to the Task Force on Rights and Empowerment of Americans with Disabilities. Garrett, 531 U.S. at 391-424, 121 S.Ct. 955. These are not congressional “findings.” They are nothing more than claims of discrimination offered at the many public hearings held by the Task Force, not by Congress. The Garrett Court majority noted of Appendix C, that it “consists not of legislative findings, but of unexamined, anecdotal accounts of adverse, disparate treatment by state officials.” Garrett, 531 U.S. at 370, 121 S.Ct. 955 (internal quotation marks and citation omitted). The notion that the members of Congress relied upon the Task Force allegations to determine that the states were engaging in a pattern of due process violations is an unsupportable fiction. Moreover, of the 1,700 or more instances of discrimination identified by the Task Force and listed in Appendix C of Justice Breyer’s dissent in Garrett, I can locate no moré than 35 which arguably raise due process concerns. Of the limited number that could be read to implicate due process — whether it be procedural or substantive due process is another matter— the vast majority are concerned with physical access to polls and courthouses. While I do not doubt that these are serious impediments for the disabled, it is not clear what individual legislators made of these Task Force findings, if indeed they ever heard of them. The best that can be said for them is that they raise equal protection concerns. I have difficulty assigning much credence to the argument that members of Congress relied on Task Force reports which include conclusions such as “state university denied sabbatical proposal of faculty member with disability,” id. at 410, 121 S.Ct. 955, or “child denied admission to public school because first-grade teacher refused to teach him,” id. at 420, 121 S.Ct. 955. The intervenor and the majority opinion would have us infer that the individuals’ disabilities caused the state to act as it did. But, such Task Force “find*828ings” provide legislators with no support for the contention that the states violated disabled individuals’ due process rights so routinely as to amount to a pattern of discrimination. Indeed, the findings tell legislators nothing about state actions toward the disabled.
Moreover, the ADA’s statement of legislative Findings and Purpose offers no support for the contention that Congress identified a pattern of state due process violations. For instance, 42 U.S.C. § 12101 (expressing the ADA’s Findings and Purpose) offers the following, in pertinent part:
[Discrimination against individuals with disabilities persists in such critical areas as employment, housing, public accommodations, education, transportation, communication, recreation, institutionalization, health services, voting, and access to public services. ’*
Id. at § 12101(a)(3). One has to stretch mightily to read this language as an affirmative statement by Congress that it was identifying and remedying state action that violated disabled individuals’ due process rights. This section is a statement of the act’s purpose for each of the five titles in the ADA, and it cannot be read to refer to Title II specifically. Furthermore, with the exception of the reference to voting, I do not read in § 12101 the necessary finding by Congress that the disabled suffered violations of their due process rights at the hands of states.
Therefore, whatever might be said for the highly generalized statement of purpose with which Congress elucidated its goal in enacting the ADA, it certainly did not identify a pattern of due process violations.
2.
Congress’s authority to enact general remedial legislation under § 5 is limited to rectifying conduct that is unconstitutional, not merely undesirable. While Congress determines whether and what legislation is necessary to enforce the guarantees of the Fourteenth Amendment, Congress may not define the bounds of a constitutional violation, Kimel, 528 U.S. at 80-81, 120 S.Ct. 631; only the courts may do that. And that is precisely the constitutional flaw in the ADA. The act proscribes too much conduct that is not unconstitutional and thus effects a substantive redefinition of constitutional rights. The ADA’s provisions must “be understood ‘as responsive to, or designed to prevent, unconstitutional behavior.’ ” Florida Prepaid, 527 U.S. at 639, 119 S.Ct. 2199 (quoting City of Boerne, 521 U.S. at 532, 117 S.Ct. 2157). In the language of the Supreme Court, “There must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.” City of Boerne, 521 U.S. at 520, 117 S.Ct. 2157. Title II fails the congruence and proportionality test.
Title II is an overbroad proscription. This court has noted on a previous occasion that § 12132 of Title II, which prohibits discrimination against the disabled, “encompasses virtually' everything that a public entity does.” Johnson v. City of Saline, 151 F.3d 564, 569 (6th Cir.1998). Title II prohibits all state conduct that restricts access of the disabled to public services for any reason, without regard to whether the service invokes a constitutional right. Admittedly, Title II requires only “reasonable accommodation.” Id. at 571. And a claimant’s recovery under Title II is limited to compensatory damages. Id. at 573. But these limitations are of little comfort. The Eleventh Amendment does not protect state sovereignty only against relatively large damage awards or subjectively “unreasonable” incursions; it protects the whole of state sovereignty. By its overbreadth, Title II impermissibly *829attempts a substantive redefinition of Fourteenth Amendment due process.
A plain reading of Title II demonstrates that even if Congress had before it a pattern of state behavior violative of disabled individuals’ due process rights, which it did not, Title II is not sufficiently nuanced to protect that right. It is beyond question that Congress can protect constitutional rights, but it may not create them. As the Supreme Court has observed, “[W]e have never held that § 5 precludes Congress from enacting reasonably prophylactic legislation.” Kimel, 528 U.S. at 88, 120 S.Ct. 631. But, Title II prohibits much more behavior than is necessary to remedy any state violations of disabled individuals’ due process rights. As the Court held in Ki-mel, “Congress’ failure to uncover any significant pattern of unconstitutional discrimination here confirms that Congress had no reason to believe that broad prophylactic legislation was necessary in this field.” Id. at 91, 120 S.Ct. 681. As discussed above, the legislative findings of unconstitutional behavior by the states contain little evidence directly implicating due process. The Supreme Court has made it very clear that Congress may not, through § 5 “enforcement” legislation, remedy that which it has not identified.
IV.
In summary, Eleventh Amendment abrogation under Congress’s § 5 power is valid only if the legislation is truly enforcing legislation. The Supreme Court’s analysis of whether legislation is permissible enforcing legislation turns on the determination of whether the legislation remedies unconstitutional state action, and whether it is tailored to avoid effecting a substantive redefinition of the constitutional right. Title II ventures far beyond the Court’s definition of enforcing legislation. First, Congress failed to identify a pattern of state action that violates disabled individuals’ due process rights, and, second, Title II of the ADA is not congruent and proportional to any identified state conduct. Therefore, Title II of the ADA is not a constitutionally valid abrogation of state sovereign immunity.
I respectfully dissent.