with whom ALVIN B. RUBIN, REAVLEY, POLITZ, TATE, and JOHNSON, Circuit Judges, join, dissenting:
Because the opinion by Judge Williams for the Court treats two Supreme Court decisions as though they no longer have any binding vitality and because those decisions command a determination (i) that the Jones Act applies to vessels owned or operated by a state; and, (ii) that the abrogation of Eleventh Amendment1 immunity which is clearly established for FELA cases, is necessarily extended to the Jones Act, which incorporates FELA, I must dissent.
As is obvious from what I believe to be the important questions, the answer is one of Congress’ constitutional power and how it has been exercised. To my way of thinking, the crucial point is whether Congress has abrogated state immunity to suit, not whether there has been a waiver on the part of Texas, a maritime employer.2 Unlike the majority, I do not see waiver as relevant.3 It is my opinion that the Supreme Court has ruled that the FELA abrogates state Eleventh Amendment immunity. In the Jones Act case before us, involving the same statute, we cannot hold differently.
*1278 I. Admiralty Supreme
My view is that Article III of the Constitution gives Congress plenary power over admiralty and maritime matters. Our framers did this for a very understandable reason. Almost all commerce at the time of our nation’s founding was waterborne. In order to allow for the free flow of trade across occasionally jealous and protectionist state boundaries, the delegates meeting in Philadelphia made Congress the custodian of power over both interstate commerce and admiralty. Moreover, the Constitution makes a distinction between its grant to Congress of power over interstate commerce and its allocation to the federal government of exclusive jurisdiction over admiralty. As I see it, this distinction in phraseology was deliberate then, and is of crucial significance now. It is crucial because Congress is given a special interest in maintaining the uniformity of admiralty and has exercised its plenary power over maritime matters in enacting the Jones Act. In doing so,
[Tjheir purpose was not to strike down or abrogate the system, but to place the entire subject — its substantive as well as its procedural features — under national control because of it intimate relations to navigation and to interstate and foreign commerce.
Panama Railroad Co. v. Johnson, 264 U.S. 375, 386, 44 S.Ct. 391, 393, 68 L.Ed. 748, 755 (1924).
In exercising its exclusive power over admiralty, Congress chose expressly to make the provisions of the Federal Employers’ Liability Act (FELA), 45 U.S.C. §§ 51 et seq., an integral part of the Jones Act. If there was any question about this incorporation from the statutory language or legislative history of the Jones Act, a long line of Supreme Court decisions has removed all doubt.4 Since this incorporation has been determined to be constitutional, the question for us to resolve is whether there is any collision between Congress’ plenary admiralty power and the Eleventh Amendment. My view is that the framers’ interest in the uniformity of admiralty — revealed in the almost unquestioned delegation of power over admiralty matters to the United States government with little dissent even on the part of the antifederal-ists — mandates the conclusion that Texas, as a maritime employer, is subject to the Jones Act.
A remaining consideration then is whether the Eleventh Amendment, under the interpretations given it by the Supreme Court that extend its scope beyond the face of its language, bars federal court proceedings.
This dissent is divided into the following analytical framework: Part II discusses the plenary nature of the admiralty power granted to Congress by the Constitution. Part III deals with the Jones Act, its incorporation of the FELA, and its abrogation of state immunity. Part IV then considers the Supreme Court’s recent pronouncements on federalism in Garcia and Atas-cadero.
II. Congress’ Admiralty Power is Plenary
As the Jones Act begins with Article III, Section 2 of the Constitution, so do I. This article extends the judicial power of the United States “to all cases of admiralty and maritime jurisdiction”. In addition, Article I, Section 8, confers upon Congress the power “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by this Constitution in the government of the United States or in any department or offices therecf.” In South*1279ern Pacific Co. v. Jensen, 244 U.S. 205, 215, 37 S.Ct. 524, 528, 61 L.Ed. 1086 (1917), the Supreme Court stated “it must now be accepted as settled doctrine that, in consequence of these provisions, Congress has paramount power to fix and determine the maritime law which shall prevail throughout the country.” As the Court emphasized, the original Judiciary Act of 1789 gave district courts of the United States “exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction ... saving to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it.”5 Id. at 215, 37 S.Ct. at 528.
In Workman v. Mayor, Alderman, and City of New York, 179 U.S. 552, 560, 21 S.Ct. 212, 215, 45 L.Ed. 314 (1900), the Court made clear that the framers desired uniformity in maritime jurisprudence; accordingly, they assigned the admiralty power exclusively to Congress:
[i]t would be a strange distinction to persons coming with their ships to different ports of this country, that in some ports, if they sustained damages by the negligence of those who have management of the docks, they will be entitled to compensation, and in others they will not; such a distinction arising, not from any visible difference in the docks themselves, but from some municipal difference in the constitution of the bodies by whom the docks are managed.
See also Ex Parte Garnett, 141 U.S. 1, 13, 11 S.Ct. 840, 842, 35 L.Ed. 631 (1891).6
The Supreme Court has long held that the Constitution empowered Congress to legislate exclusively over matters within the admiralty and maritime jurisdiction.7 As the Supreme Court stated in Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, 156, 40 S.Ct. 438, 64 L.Ed. 834, 838 (1920), “the necessary consequence [of any other conclusion] would be destruction of the very uniformity in respect of maritime matters which the Constitution was designed to establish.” The Constitution
took from the states all power, by legislation or judicial decision, to contravene the essential purposes of, or to work material injury to, characteristic features of such law, or to interfere with its proper harmony and uniformity in its international and interstate relations.
Id. 253 U.S. at 160, 40 S.Ct. at 440. In Knickerbocker the Court also recognized, and chose to emphasize, that Congress’ admiralty power was much greater than its power to regulate interstate commerce. “The distinction between the indicated situation created by the Constitution relative to maritime affairs and the one resulting from the mere grant of power to regulate commerce, without more, should not be forgotten.” Id. at 160, 40 S.Ct. at 440.8
*1280Thus, the plenary power of Congress over admiralty has long been upheld.9 It is more extensive than Congress’ power over interstate commerce. If, however, Congress neglects to expressly include the states within the scope of a maritime enactment — as it did in passing the Jones Act— there remains the question of whether the statute applies to the states. Our inquiry must focus on the congressional abrogation of state immunity under the Jones Act; if abrogation is found, the Eleventh Amendment does not forbid suit in federal court.
III. The Jones Act Abrogates State Immunity to Suit
The Jones Act provides that:
any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common law right or remedy in case of personal injury to railroad employees shall apply; and in case of the death of any seaman as a result of any such personal injury the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury, and in such action all statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable. Jurisdiction in such actions shall be under the court of the district in which the defendant employer resides or in which his principal office is located.
46 U.S.C. § 688 (emphasis added).
The FELA, incorporated by the Jones Act, provides in part:
[ejvery common carrier by railroad while engaging in commerce between any of the several states ... shall be liable in damages to any person suffering injury while he is employed by any such carrier in such commerce ... [and that] [u]nder this chapter an action may be brought in a district court of the United States____
45 U.S.C. §§ 51, 56 (emphasis added). In Panama Railroad Co. v. Johnson, 264 U.S. 375, 44 S.Ct. 391, 68 L.Ed. 748 (1924), the Supreme Court expressly held that the Jones Act was enacted pursuant to Congress’ admiralty powers. See also Engel v. Davenport, 271 U.S. 33, 46 S.Ct. 410, 70 L.Ed. 813 (1926); Kendell v. United States, 37 U.S. 524 (12 Pet. 524), 9 L.Ed. 1181 (1838); In re Health, 144 U.S. 92, 12 S.Ct. 615, 36 L.Ed. 358 (1892). The extent to which Congress forbade any limitation, restriction, or reduction of these rights is reflected in § 55 of FELA:
Any contract, rule, regulation, or device whatsoever, the purpose of intent of which shall be to enable any common carrier to exempt itself from any liability created by this chapter, shall to that extent be void.
45 U.S.C. § 55. This broad, remedial statute provides a remedy to all seamen; thus, I now turn to consider whether this exercise of plenary authority over admiralty is on a collision course with the Eleventh Amendment when it is invoked to provide a remedy for a state-employed seaman.
Petty is Decisive
Jones Act Applies to States
There is no question whether the Jones Act applies to state-operated vessels. That *1281has already been authoritatively determined by the Supreme Court’s decision in Petty v. Tennessee-Missouri Bridge Commission, 359 U.S. 275, 79 S.Ct. 785, 3 L.Ed.2d 804 (1959). In Petty, the Supreme Court declared that the states of Tennessee and Missouri were subject to the Jones Act by their operation of a ferry.
[W]e can find no more reason for excepting state or bi-state corporations from ‘employer’ as used in the Jones Act than we could for excepting them either from the Safety Appliance Act (United States v. California, 297 U.S. 175„ 80 L.Ed. 567, 56 S.Ct. 421) or the Railway Labor Act (California v. Taylor, 353 U.S. 553, 1 L.Ed.2d 1034, 77 S.Ct. 1037). In the latter case we reviewed at length federal legislation governing employer-employee relationships and said, ‘When Congress wished to exclude state employees, it expressly so provided.’ 353 U.S. at 564, 77 S.Ct. at 1043. The Jones Act (46 U.S.C. § 688) has no exceptions from the broad sweep of the words “Any seaman who shall suffer personal injury in the course of his employment may” etc. The rationale of United States v. California and California v. Taylor makes it impossible for us to mark a distinction here and hold that this bi-state agency is not an employer under the Jones Act.
Id. 359 U.S. at 282-83, 79 S.Ct. at 790-91.
It bears emphasis that although the compact power and the states’ acceptance of Congress’ conditions were significant for the majority’s decision in Petty on the Eleventh Amendment, the Court was essentially unanimous on the clear holding that the Jones Act applied to the states. Adding universality to the term “any seaman” in the Jones Act is the Court’s observation that “[tjhere is no more apt illustration of the involvement of the commerce power and the power over maritime matters than the Jones Act.” Id. at 281, 79 S.Ct. at 789-90.
Parden is the Answer
Within five years of Petty’s determination that the Jones Act applies to state-operated vessels, Parden v. Terminal Railway Co., 377 U.S. 184, 84 S.Ct. 1207, 12 L.Ed.2d 233 (1964), held that FELA was effective to abrogate Eleventh Amendment immunity for a state-operated, interstate railway. Parden is still the law. It has yet to be overruled, and its constant citation10 is living proof that it is still alive, well and controlling.
Although some of the Supreme Court’s language in Parden speaks in terms of a “waiver” by Alabama of its immunity to suit, I firmly believe that Parden stands for Congress’ abrogation of the states’ Eleventh Amendment immunity in FELA. The essential principle of Parden is that “when a state leaves the sphere that is exclusively its own and enters into activities subject to congressional regulation, it subjects itself to that regulation as fully as if it were a private person or corporation.” Id. 377 U.S. at 196, 84 S.Ct. at 1215. This is shown convincingly from the structure of the Court’s reasoning. The Court said:
By adopting and ratifying the Commerce Clause, the states empowered Congress to create such a right of action against interstate railroads; by enacting the FELA in the exercise of this power, Congress conditioned the right to operate a railroad in interstate commerce upon amenability to suit in federal court as provided by the Act; by thereafter operating a railroad in interstate commerce, Alabama must be taken to have accepted that condition and thus consented to suit.
Id. 377 U.S. at 192, 84 S.Ct. at 1213. While the Court speaks occasionally in terms of waiver, its rationale is really one of the exercise of constitutional power.11 Any *1282talk of waiver was purely a palliative for holding states subject to the act of Congress. A spoonful of sugar always helps the medicine go down. Indeed, in its discussion of the palliative nature of waiver, the Parden Court reveals that congressional power — not consent or acquiescence by Alabama — is what is at stake because otherwise “the congressional power to condition such an act upon amenability to suit would be meaningless if the state, on the basis of its own law or intention, could conclusively deny the waiver and shake off the condition.” Id. 377 U.S. at 196, 84 S.Ct. at 1215.
Thus, the allusions to waiver, despite later efforts to structure or depict them as such, are by no means the Court’s basis for holding Alabama liable in Parden. This can be seen from the way in which the Court stated the issue:
Here, for the first time in this court, a state’s claim of immunity against suit by an individual meets a suit brought upon a cause of action expressly created by Congress. Two questions are thus presented (1) did Congress in enacting the FELA intend to subject a state to suit in these circumstances? (2) did it have the power to do so, as against the state’s claim of immunity?
Id. 377 U.S. at 187, 84 S.Ct. at 1210. As Parden said of the FELA — in language swallowed up hook, line, and sinker by the Jones Act:
We think that Congress, in making the FELA applicable to ‘every’ common carrier by railroad in interstate commerce meant what it said. That congressional statutes regulating railroads in interstate commerce apply to such railroads, whether they are state owned or privately owned is hardly a novel proposition; it has twice been clearly affirmed by this court.
Id. 377 U.S. at 187-88, 84 S.Ct. at 1210-11 (emphasis added).
In Parden, of course, the Court was speaking of Congress’ power under the commerce clause. It found that an exercise of pure power on the part of Congress was sufficient to abrogate the states’ immunity. The states had ceded to Congress, for the national good that uniformity would bring, that portion of their sovereignty dealing with the power to regulate interstate commerce. In the Court’s view, the decision to regulate employers of interstate railway workers, be they private parties or state governments, was for Congress alone.
While a state’s immunity from suit by a citizen without its consent has been said to be rooted in the ‘inherent nature of sovereignty,’ the states surrendered a portion of their sovereignty when they granted Congress the power to regulate commerce.
If Congress made the judgment that, in view of the dangers of railroad work and the difficulty of recovering for personal injuries under existing rules, railroad workers in interstate commerce *1283should be provided with the right of action created by the FELA, we should not presume to say, in the absence of express provision to the contrary, that it intended to exclude a particular group of such workers from the benefits conferred by the Act.
Id. 377 U.S. at 191, 84 S.Ct. at 1212 (citations omitted).
In language about the commerce power which rings even truer about Congress’ power over admiralty, the Parden Court said:
This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent and acknowledges no limitations other than are prescribed in the Constitution---- If, as has always been understood, the sovereignty of Congress, though limited to specified objects is plenary as to those objects, the power over commerce within foreign states, and among the several states, is vested in Congress as absolutely as it would be in a single government, having in its constitution the same restrictions on the exercise of the power as are found in the Constitution of the United States. Gibbons v. Ogden, 9 Wheat 1, 196-97, 6 L.Ed. 23, 70 (1824).
Id. 377 U.S. at 191, 84 S.Ct. at 1212.
The admiralty power is more extensive than the commerce power, in the sense of the states’ inability to infringe upon admiralty’s national uniformity. The Jones Act, an exercise of this broad, plenary power, by its very terms incorporates the FELA which the Supreme Court holds abrogates a state’s Eleventh Amendment immunity. In light of these observations, Parden, which abolished state immunity for state railroad employees covered by the FELA, must do the same for state seamen because their rights come from the same statute. “By engaging in the railroad business a state cannot withdraw the railroad from the power of the federal government to regulate commerce.” New York v. United States, 326 U.S. 572, 582, 66 S.Ct. 310, 314, 90 L.Ed. 326, 333 (1946). Similarly, by operating a ferry, the State of Texas cannot remove the ship or the seamen on her from the power of the federal government to regulate maritime activities. See Foremost Insurance Co. v. Richardson, 457 U.S. 668, 674-75, 102 S.Ct. 2654, 2658, 73 L.Ed.2d 300, 306 (1982).
Fifth Circuit Bridge Act Cases Inconsequential
The importance of Congress providing a private cause of action as evidence of an intent to abrogate the states’ immunity to suit is nicely shown in reverse by our cases considering the Bridge Act: Intracoastal Transportation v. Decatur County, Georgia, 482 F.2d 361 (5th Cir.1973), and Freim-anis v. Sea-Land Service, 654 F.2d 1155 (5th Cir.1981). In Intracoastal we concluded that the “Bridge Act of 1906 does not create a cause of action in private parties”; consequently, we sustained the state’s claim to immunity. Similarly, in Freiman-is we focused on the lack of a private remedy for violations of the Rivers and Harbors Appropriation Act of 1899. We specifically juxtaposed Congress’ lack of intention to give a private cause of action in these Acts with Congress’ clear intention to sanction private action in the FELA.
Congress in exercising this regulatory authority over navigation did not, as it had in the Federal Employers’ Liability Act, create any civil cause of action in favor of private parties injured by any violation of the Act. Rather, it chose to achieve its regulatory purposes through specific penal statutes.
Id. at 1160, quoting Red Star Towing v. Department of Transportation of New Jersey, 423 F.2d 104, 105-06 (3d Cir.1970). Thus, in contradistinction to the Jones Act and its incorporation of the FELA,
the presently relevant statute regulating the bridging of navigable streams does not confer any new civil remedy upon private parties and thus cannot by logical inference be read as intended to impose equivalent civil liability upon an otherwise immune state.
Red Star Towing, 423 F.2d at 106.
Parden is Still Alive
The majority suggests — if it does not squarely hold — that Parden has been sig*1284nificantly limited by the Supreme Court in Employees v. Dept. of Public Health, 411 U.S. 279, 93 S.Ct. 1614, 36 L.Ed.2d 251 (1973), and in Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). In note 1 of Employees the majority states that Parden was premised on the conclusion that Alabama, by operating the railroad, had consented to suit in the federal courts under the FELA. I simply do not subscribe to this view. I believe that the essential principle of Parden — state liability to federal suit when Congress acts pursuant to a plenary power — remains unaffected by Employees and Edelman, and I now consider the very different situations before the Court in the two cases.
The Court in Employees stated that Par-den concerned only a rather isolated state activity, whereas Employees dealt potentially with all office workers in the state government of Missouri. Most importantly, Employees concerned the application of the Fair Labor Standards Act (FLSA). By the very terms of the original FLSA, states were exempted from coverage. Confusion arose because of a later congressional amendment that concerned state hospital employees. The Court decided that it would:
be surprising in the present case to infer that Congress deprived Missouri of her constitutional immunity without changing the old § 16(b) under which she could not be sued or indicating in some way by clear language that the constitutional immunity was swept away.
Employees 411 U.S. at 285, 93 S.Ct. at 1618.
In Employees the Court merely declined “to extend Parden to cover every exercise by Congress of its commerce power, where the purpose of Congress to give force to the Supremacy Clause by lifting the sovereignty of the states and putting the states on the same footing as other employers is not clear.” Id. 411 U.S. at 286-87, 93 S.Ct. at 1618-19. Thus, the Court refused to find abrogation of state immunity because there was a confusing expression on the part of Congress. First the FLSA had clearly exempted states; a later amendment then introduced confusion. There is no such confusion with the Jones Act or the FELA. It has long been established that the FELA includes every employer and gives every employee of an interstate railroad a cause of action.
Indeed, using the Supreme Court’s own method of distinguishing Employees from Parden, we have in the case before us only the isolated activity of operating a ferry. This activity is the equivalent of the operation of a railroad in interstate commerce through the Jones Act’s incorporation of FELA. It is not the widespread type of intrusion upon all governmental functions of the states that would have resulted from extending FLSA in Employees. In Employees, the Court’s reluctance to find the necessary intention to include the states within the FLSA was influenced by Congress’ confusing amendments. This confusion, as the Supreme Court held, showed a lack of congressional intention to abrogate the states’ immunity.
The next case setting out the Supreme Court’s approach to the Eleventh Amendment and state immunity is Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). The Court in Edelman examined Aid to the Aged, Blind, or Disabled (AABD), a federal program funded by the state and federal governments, and administered by state officials. Edelman had to deal with both Parden and Employees. The Court, emphasizing the critical significance of abrogation and the absence of a private right of action, said:
the question of waiver or consent under the Eleventh Amendment was found in those eases to turn on whether Congress had intended to abrogate the immunity in question, and whether the state by its participation in the program authorized by Congress had in effect consented to the abrogation of this immunity.
But in this case the threshold fact of congressional authorization to sue a class of defendants which literally includes states is wholly absent. Thus, respondent is not only precluded from *1285relying on this court’s holding in Employees, but on this court’s holding in Parden and Petty as well, (emphasis added).
Edelman 415 U.S. at 672, 94 S.Ct. at 1360.
Thus, in Edelman, a class action seeking declaratory and injunctive relief against state administrators, the Court applied an analysis to the AABD which lends support to my view that Parden was not limited by Employees. The Court’s language indicates that its note one in Employees was an overly broad attempt to distinguish Par-den because, unlike the Employees note, Edelman says Parden was founded on Congressional intent — and power — to abrogate state immunity by creating a private cause of action.12 Further, Edelman uses the same analysis to distinguish Employees which I maintain distinguishes Employees from Parden: that is, Edelman read Employees as a case which focused on the confusion Congress created in the FLSA by first exempting the states, then trying to include part of their workers.
As I have stated, there has never been any confusion about the Jones Act’s incorporation of the FELA’s clear language and its binding application to state operated vessels; and FELA has long been held to apply to the states and to abrogate their Eleventh Amendment immunity to suit in federal court. When it is understood that Edelman was concerned only with state participation in a program through which the federal government provided assistance for the state’s operation of a system of public aid, it comes as no surprise that the Eleventh Amendment was held to be a bar to suit in federal court. In grant-in-aid programs, the principle of state court adjudication is clear unless Congress expressly indicates that the program allows suit in federal court. But the Edelman Court’s discussion of waiver places no restriction upon Parden’s holding that FELA abrogates state immunity to suit.13
IV. The Rationales of Garcia & Atas-cadero Support the Jones Act Abrogation of the State’s Eleventh Amendment Immunity
The recent pronouncements of the Supreme Court in its continuing exegesis of the role of the several states in the federal system are reminiscent of Doctor Doolittle’s two-headed llama, the Pushmi-Pul-lyu.14 Since the case before us was argued, the Supreme Court has handed down Garcia15 and Atascadero,16 I confront Garcia because of its focus upon the structure of our federal system. I must similarly confront Atascadero because of the sweeping language which the Court used in interpreting the scope of the Eleventh *1286Amendment. While it is my opinion that on .the facts before us Parden and Petty establish Texas’ liability to federal suit under the Jones Act because the Supreme Court has never disturbed their holdings, I also believe that, properly understood, Garcia and Atascadero do not detract from my conclusion that the. Jones Act effectively abrogates Texas’ Eleventh Amendment immunity.
The significance of Garcia is its focus upon the political process as the best way for the states to protect themselves from unduly broad regulation by the federal government in our federal system. Garcia is an important case not only for what it says, but for the posture in which the decision comes down. It stands for the proposition that states must fight for their sovereignty in the political arena. In essence, the water-mark for state sovereignty was illustrated by National League of Cities,17 concern for the integrity of traditional governmental functions and by Pennhursf s 18 concern for “clear statements” in grant-in-aid programs.
Now, however, the Court has handed down Garcia in its repudiation of its decision in National League of Cities. I believe Garcia reaffirms the principles of Parden. When Congress acts pursuant to a plenary power — one unrestrained within its constitutionally delegated bounds — the states must be affirmatively exempted through the political process if they are to escape inclusion within a regulatory scheme in an area where national uniformity is important.
In Garcia, the Supreme Court looked to the political process, not the judicial process, for the states’ power to protect themselves from excessive congressional regulation. This requires an affirmative act on the part of Congress to exclude states from the reach of its plenary power — in holding otherwise, the majority risks attributing to Congress the. now judicially discredited distinctions between traditional state governmental and nongovernmental functions. Garcia clearly rejected this method of analysis which has been generated by National League of Cities. Accordingly, it is for Congress, influenced by state involvement in the legislative process, to restrain itself in the exercise of its plenary powers to the proper amount of congressional regulation of the states. Any other reading violates Garcia’s clear command that federal judges should not intrude into the political process.19
Garcia, which did not even involve the Eleventh Amendment, cannot be forced into the express reference mold. Its focus upon the political process to protect the states is federalism as reflected by Parden and Petty, not the federalism of National League of Cities.
The holding of Garcia was:
We perceive nothing in the overtime and minimum-wage requirements of the FLSA, as applied to SAMTA, that is destructive of state sovereignty or violative of any constitutional provision. SAMTA faces nothing more than the same minimum wage and overtime obligations that hundreds of thousands of other employers, public as well as private, have to meet.
Id. — U.S. -, 105 S.Ct. at 1020, 83 L.Ed.2d at 1036. The rationale behind the Court’s conclusion that a state governmental agency was subject to the FLSA was that the states must protect themselves by participation in the political process. Indeed, the Court observed that “the principal and basic limit on the federal commerce power is that inherent in all congressional *1287action — the built-in restraints that our system provides through state participation in federal governmental action. The political process ensures that laws that unduly burden the states will not be promulgated.” Id. — U.S. -, 105 S.Ct. at 1020, 83 L.Ed.2d at 1037.20
Garcia stands for the proposition that states retain sovereign authority “only to the extent that the Constitution has not divested them of their original powers and transferred those powers to the federal government.” Garcia — U.S. -, 105 S.Ct. at 1017, 83 L.Ed.2d at 1033. The admiralty power, like that over commerce, was expressly delegated to the national government by the Constitution. Garcia makes clear that federal legislation constitutionally may apply to state activities. In doing so, it restores full force to the Court’s earlier decisions in Parden and Petty. Therefore, the constitutional power rationale that Parden applied to uphold FELA’s application to the states as an employer still stands.21
The Court, supporting its conclusion that “our federalism” requires that the states affirmatively exempt themselves from federal regulation, listed many of the federal regulatory schemes which specifically exempt the states and their subdivisions. Conspicuous by their absence from the Court’s partial catalogue are the two statutes at issue in this case: FELA and the Jones Act. Most important for a correct understanding of Garcia, however, is that the court chose as its illustration those programs which specifically exempted the states from regulation. In matters within its plenary power — admiralty and commerce — Congress is not required to expressly incorporate the states within the regulatory scheme. The states are already on notice of Congressional authority in those areas because it results from the states’ own constitutional cession of power over them to the federal government.
In the context of a plenary power the message of Garcia is that Congress intends to act to the full extent of its power — unless it places some limitation upon its own actions. The fact that Congress in the past may not have exercised its delegated powers to their full extent is not sufficient reason to adopt the express articulation doctrine. Garcia has not mandated such a course, and I do not believe Atas-cadero compels a different result.
Atascadero is a case which arose under the Rehabilitation Act of 1973, an anti-discrimination statute enacted pursuant to the powers granted to Congress by the Fourteenth Amendment. In a sweeping opinion for a divided court, Justice Powell wrote
in determining whether Congress in exercising its Fourteenth Amendment powers has abrogated the States’ Eleventh Amendment immunity, we have required an unequivocal expression of Congressional intent to overturn the constitutionally guaranteed immunity of the several states.22
*1288Atascadero, — U.S. at-, 105 S.Ct. at 3146, 87 L.Ed.2d at 178, citing Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) (emphasis added). I believe, however, that Atascadero by the use of the very words refers to the extent of state Eleventh Amendment immunity when considering congressional acts under the Fourteenth Amendment.23
Atascadero was a suit seeking to vindicate rights granted to the handicapped under the Rehabilitation Act of 1973. The Court’s solicitude for the sovereignty of the states in the context of a Fourteenth Amendment case is readily understood. The intrusion of the federal judiciary, under the Fourteenth Amendment, into areas traditionally thought to be the prerogative of the states has been the subject of considerable comment.
[T]he trial judge has increasingly become the creator and manager of complex forms of ongoing relief, which have widespread effects on persons not before the court and require the judge’s continuing involvement in administration and implementation.
A. Chayes, The Role of the Judge in Public Law Litigation, 98 Harv.L.Rev. 1281, 1284 (1976).
In our own Circuit, there have been several striking examples of the degree to which federal remedial decrees issued pursuant to the Fourteenth Amendment have severely restricted the discretion of the States to determine the manner in which their institutions will operate. The complexity and breadth of such orders is exemplified by Ruiz v. Estelle, 679 F.2d 1115, amended in part, 688 F.2d 266 (5th Cir.1982), a case in which a comprehensive injunctive decree covering the operation of the Texas Department of Corrections was issued by a federal district court. Other examples of these sweeping equitable orders abound.24
Atascadero is understandably concerned about abrogation of state immunity in Fourteenth Amendment cases. In the words of Professor Field
[t]he court initially gave a miserly construction to the [Civil War] amendments precisely because it realized that the *1289amendments would significantly shift the state-federal balance of power ...
Field, Garcia v. San Antonio Metropolitan Transportation Authority: The Demise of a Misguided Doctrine, 99 Harv.L. Rev. 84,100 (1985). The Fourteenth Amendment to the Constitution, however, has not “divested the states of their original powers [to vindicate constitutional rights] and transferred them to the federal government.” Garcia, — U.S. -, 105 S.Ct. at 1017, 83 L.Ed.2d at 1033. State courts have concurrent jurisdiction over cases involving the redress of rights guaranteed by the Constitution, and in certain circumstances, the existence of an adequate state remedy for an alleged violation of federal rights may even preclude access to a federal forum. Parratt v. Taylor, 451 U.S. 527, 543-44, 101 S.Ct. 1908, 1917, 68 L.Ed.2d 420, 433-34 (1981).
Clear statement in the context of the Fourteenth Amendment is imperative, if federal intrusion upon the state’s domain is not to “prevent the making of social experiments that an important part of the community desires, in the insulated chambers afforded by the several States.” Truax v. Corrigan, 257 U.S. 312, 343, 42 S.Ct. 124, 133, 66 L.Ed. 254 (1921) (Holmes, J. dissenting).25 When however, state experimentation threatens to trench upon areas reserved for the plenary exercise of federal power, I believe the state’s experiment must fail. So it is when state economic regulations are held to be preempted by the federal commerce power of Art. I § 8; so it must be when a state’s assertion of Eleventh Amendment immunity threatens to displace a uniform, federal remedial statute enacted pursuant to the Congress’ plenary authority over admiralty.
Admiralty is a fundamental area marked by the constitution in which the states have surrendered their power to the federal government. The plenary power over admiralty, more extensive even than that over commerce, was one of the fundamental precepts upon which the Republic was founded.26 The states’ surrender of sovereignty in this area was present in the plan of the convention from its inception,27 and has continued unchallenged and unrestricted to the present day. The states have been on notice of the scope of this federal authority since the founding of the Republic. They relinquished it in order that a fledgling nation might build a national, sea-going trade. It is not for Texas, after more than one hundred forty years as a member of the Union, to assert that its sovereignty over maritime matters is somehow greater than that which was ceded to the national government by the Constitution.
The Jones Act poses no threat of massive, unanticipated federal intrusion upon the traditional domain of the several states. There was, and is, no need for clear statement on the part of Congress to inform the states of its intention to occupy the field in this area. The entire domain of maritime activities has been occupied by the federal presence since 1789, and exclusive jurisdiction over admiralty appears in the text of the Constitution itself. Art. Ill § 2. The Jones Act, as an appropriate exercise of the plenary authority of Congress over maritime affairs, provides sufficiently clear notice to the states of the congressional intent. There was no need at the time of the enactment of the Jones Act, at the time of the decision concerning FELA in Parden, or at the present time in view of Employees, Edelman, Garcia, and Atascadero, for Congress specifically to declare that the states were subject to federal court suit *1290under the Jones Act. To my way of thinking, then, the Jones Act is sufficient to abrogate Texas’ Eleventh Amendment immunity to suit for injuries that arise out of its operation of a ferry system.
Congressional Treatment of Federally-Employed. Seamen
I find unconvincing Texas’ argument that Congress could not have intended that the Jones Act should apply to the states since the federal government has not applied the Jones Act to the federal government’s seamen. As the federal power over admiralty is plenary, the federal government is entitled to do with it as it will. The question is not what Congress has done with its own employees alone, the question is what has it chosen to do with all other maritime employees. Occasionally Congress has provided that federally employed seamen be covered by the Federal Employees Compensation Act (FECA), 5 U.S.C. § 8101. But this has not always been so when conditions — war conditions — suggest a change to traditional seamen’s remedies.28
How Congress treats federally-employed seamen simply has nothing to do with its determination that state-employed seamen are covered by the Jones Act.
Conclusion
It is my view that a substantial and settled body of Eleventh Amendment jurisprudence has established that Congress can abrogate a state’s immunity to suit. In both Parden and Employees, the Court recognized that Congress has the power to bring “the States to heel, in the sense of lifting their immunity from suit in a federal court.” Employees, 411 U.S. at 283, 93 S.Ct. at 1617. While Congress can induce states to waive their immunity in grant-in-aid programs, Congress is not limited to such indirect action. I believe the Supreme Court has clearly held that the national legislature possesses the power to override the Eleventh Amendment directly, without resort to any theory of state consensual waiver, when Congress acts pursuant to a plenary power given to achieve the framers’ goal of uniformity. The Supreme Court has ruled that FELA meets this standard for abrogation of state immunity to suit. In this Jones Act case, involving the same statute, it is not for us to say differently.
Welch’s claim as a blue water seafarer should proceed in the Federal Court.
. The Eleventh Amendment provides:
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.
. Much of the confusion in Eleventh Amendment jurisprudence derives from courts' casual use of the terms waiver, consent, and abrogation. Actually, these terms represent distinct concepts and the difference between them is crucial for a correct understanding of the case before us. Waiver or consent concerns a state’s acquiescence, either expressly or impliedly; abrogation deals with congressional action.
. The majority concludes that waiver is applicable only to suits brought by private citizens. With this I have no disagreement. The opinion also concludes that a state’s refusal to waive has broader implications than just barring suits in federal court. Regardless of the merits of this analysis, I believe it has no application to the case before us because the Jones Act, passed pursuant to Congress’ plenary admiralty power has been held to include the states.
. Indeed, the Supreme Court in Panama Railroad Co. v. Johnson, 264 U.S. 375, 44 S.Ct. 391, 68 L.Ed. 748 (1924), considered the Jones Act’s incorporation of the FELA in an attack upon the Jones Act's constitutionality. The court said:
[c]riticism is made of the statute because it does not set forth the new rules but merely adopts them by a generic reference. But the criticism is without merit. The reference ... is a recognized mode of incorporating one statute or system of statutes into another, and serves to bring into the latter all that is fairly covered by the reference.
. Today in 28 U.S.C. § 1333(1), Congress has vested in federal district courts original and exclusive jurisdiction over "[a]ny civil case of admiralty or maritime jurisdiction, saving to suitors in all cases other remedies to which they are entitled.”
. The Garnett Court stated: “[t]he Constitution must have referred to a system of law co-extensive with, and operating uniformly in, the whole country. It certainly could not have been the intention to place the rules and limits of maritime law under the disposal and regulation of the several states, as that would have defeated the uniformity and consistency at which the Constitution aimed on all subjects of a commercial character affecting the intercourse of the states with each other or with foreign states.” Id. (emphasis added).
. In State of Washington v. Dawson & Co., 264 U.S. 219, 224, 44 S.Ct. 302, 68 L.Ed. 646 (1924), the Supreme Court said "well established is the rule that state statutes may not contravene an applicable act of Congress, or affect the general maritime law____ No such legislation is valid if it contravenes the essential purpose expressed by an act of Congress, or works a material prejudice to the characteristic features of the general maritime law, or interferes with the proper harmony and uniformity of that law in its international and interstate relations. This limitation, at the least, is essential to the effective operation of the fundamental purposes for which such law was incorporated into our national laws by the Constitution itself."
. As a further demonstration of Congress’ plenary power over admiralty matters, consider the Admiralty Jurisdiction Extension Act. This Act, which extends the reach of the admiralty courts beyond what was commonly accepted as a limit on their power, has been held constitutional as against contentions that it was an unauthorized congressional extension of admiralty and mari*1280time jurisdiction. See United States v. Matson Navigation Co., 201 F.2d 610 (9th Cir.1953); Pure Oil Co. v. Snipes, 293 F.2d 60 (5th Cir.1961); Gutierrez v. Waterman SS Corp., 373 U.S. 206, 83 S.Ct. 1185, 10 L.Ed.2d 297 (1963), rehearing denied, 374 U.S. 858, 83 S.Ct. 1863, 10 L.Ed.2d 1082 (1963); Victory Carriers, Inc. v. Law, 404 U.S. 202, 92 S.Ct. 418, 30 L.Ed.2d 383 (1971), rehearing denied, 404 U.S. 1064, 92 S.Ct. 731, 30 L.Ed.2d 753 (1972); Pittston Stevedoring Corp. v. Dellaventura, 544 F.2d 35, 56 (2d Cir.1976), aff’d, Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 97 S.Ct. 2348, 53 L.Ed.2d 320 (1977).
. In Ex Parte Garnett, 141 U.S. 1, 14, 11 S.Ct. 840, 843, 35 L.Ed. 631 (1891), the Court said "the Constitution extends the judicial power of the United States to ‘all cases of admiralty and maritime jurisdiction,’ and as this jurisdiction is held to be exclusive, the power of legislation on the same subject must necessarily be in the National Legislature, and not in the State Legislature.”
. As recently as the preceding term, the Supreme Court has cited Parden as a precedent controlling its decisions on Eleventh Amendment immunity. See County of Oneida, New York v. Oneida Indian Nation, — U.S.-, 105 S.Ct. 1245, 84 L.Ed.2d 169 (1985).
. In Peel v. Florida Department of Transportation, 600 F.2d 1070, 1080-81 (5th Cir.1979), we said:
[a] more consistent rationale is that a state can consent to private damage actions when Congress manifests a sufficient purpose to ab*1282rogate a state’s immunity. Under this approach, the state waived its immunity from suit in federal court at the same time it surrendered its sovereign immunity and gave Congress the power to legislate under delegated powers. As recognized by Chief Justice Hughes in an early case involving sovereign immunity, "States of the Union, still possessing attributes of sovereignty, shall be immune from suits, without their consent, save where there has been ‘a surrender of this immunity in the plan of the convention.’ ” Monaco v. Mississippi, 292 U.S. 313, 322-23, 54 S.Ct. 745, 748, 78 L.Ed. 1282 (1934) (quoting The Federalist No. 81) (A. Hamilton footnote omitted). This rationale removes the Eleventh Amendment as a bar whenever Congress validly has exercised its powers.
[I]n exercising her rights, a state cannot disregard the limitations which the federal constitution has applied to her power. Her rights do not reach to that extent. Nor can she deny to the general government the right to exercise all its granted powers, though they may interfere with the full enjoyment of the rights she would have if those powers had not been thus granted. Indeed, every addition of power to the general government involves a corresponding diminution of governmental powers of the states. It is carved out of them.
Peel at 1080-81, quoting Fitzpatrick v. Bitter, 427 U.S. 445, 454-55, 96 S.Ct. 2666, 2670-71, 49 L.Ed.2d 614 (1976), quoting Ex Parte Virginia, 10 Otto 339, 346-48, 100 U.S. 339, 346-48, 26 L.Ed. 676 (1880).
. The Edelman Court said: "Parden ... involved a congressional enactment which by its terms authorized suit by designated plaintiffs against a general class of defendants which literally included states____" Id. 415 U.S. at 672, 94 S.Ct. at 1360.
. Thus, the Edelman Court said the "mere fact that a state participates in a program through which the federal government provides assistance for the operation by the state of a system of public aid is not sufficient to establish consent on the part of the state to be sued in the federal courts.” Id. at 674, 94 S.Ct. at 1361. It is with the distinction between waiver and abrogation in mind that Edelman said of grant-in-aid programs:
constructive consent is not a doctrine commonly associated with the surrender of constitutional rights, and we see no place for it here. In deciding whether a state has waived its constitutional protection under the Eleventh Amendment, we will find waiver only where stated by the most express language or by such overwhelming implications from the test as [will] leave no room for any other reasonable constructions, (citations omitted).
Id. at 673, 94 S.Ct. at 1361.
. A pushmi-pullyu is the rarest of all creatures. It is a most unusual creature, having two heads — one at either end of its body. As a consequence of the different perspectives offered to either head, a pushmi-pullyu is engaged in a constant tug of war with itself. It moves first this way, then that — but never does it move very far in either direction. See Lofting, “The Story of Doctor Doolittle” in Anthology of Children’s Literature, 624 (4th ed. 1970).
. Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. -, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985).
. Atascadero State Hospital v. Scanlon, 473 U.S.-, 105 S.Ct. 314, 87 L.Ed.2d 171 (1985).
. National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976).
. Pennhurst State School and Hospital v. Hald-erman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984).
. Certainly Justice Powell in his dissent in Garcia interpreted the majority opinion in this fashion. Indeed, what Justice Powell found most troubling was the majority’s conclusion "that federal political officials, invoking the Commerce Clause, are the sole judges of the limits of their own power." Garcia, — U.S. -, 105 S.Ct. at 1026, 83 L.Ed.2d at 1044. (Powell, J., dissenting).
. The emphasis upon the states’ ability to protect themselves by their involvement in the legislative process explains the Garcia Court’s statement in note 10 that:
the existence vel non of a tradition of federal involvement in a particular area does not provide an adequate standard for state immuni-ty____ The recent vintage of this regulatory activity does not diminish the strength of the federal interest in applying regulatory standards to state activities, nor does it affect the strength of the state’s interest in being free from federal supervision.
Id. — U.S.-, 105 S.Ct. at 1015, 83 L.Ed.2d at 1030.
. Justice Powell recognized this — even though he disagreed with the conclusion — when he observed: ”[t]he Court apparently thinks that the states’ success at obtaining federal funds for various projects and exemptions from the obligations of some federal statutes is indicative of the effectiveness of the federal political process in preserving the states’ interests____" Garcia, — U.S. -, 105 S.Ct. at 1026, 83 L.Ed.2d at 1043 (Powell, J., dissenting).
. The majority places great store on a recent law review article by Professor Martha Field of Harvard Law School, Garcia v. San Antonio Metropolitan Transit Authority: The Demise of a Misguided Doctrine, 99 Harv.L.Rev. 84 (1985), which suggests that the holding of Atascadero
"effectively placed upon Congress the burden of reenacting statutes regulating states if it would have states answer in federal courts to individuals' suits".
*1288Id. at 115. However, nothing in the article— and certainly nothing in Atascadero itself — requires the reenactment of statutes already interpreted as having abrogated the Eleventh Amendment immunity of the states.
As I emphasized earlier, both FELA and the Jones Act have already been determined to abrogate state immunity to suit. See supra Part III.
. The Court repeatedly makes this clear:
As a result, when acting pursuant to § 5 of the Fourteenth Amendment, Congress can abrogate the Eleventh Amendment without the state’s consent. — U.S. -, 105 S.Ct. at 3145, 87 L.Ed.2d at 177.
Likewise, in determining whether Congress in exercising its Fourteenth Amendment powers has abrogated the State’s Eleventh Amendment immunity, we have required "an unequivocal expression of congressional intent to overturn the constitutionality guaranteed immunity of the several states.” Id. — U.S. -, 105 S.Ct. at 3146, 87 L.Ed.2d at 178. Congress may, in determining what is "appropriate legislation" for the purpose of enforcing the provisions of the Fourteenth Amendment, provide for private suits against States or state officials which are constitutionally impermissible in other contexts. Id. — U.S.-, 105 S.Ct. at 3148, 87 L.Ed.2d at 180 quoting Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976).
We have decided today that the Rehabilitation Act does not evince an unmistakable congressional purpose, pursuant to § 5 of the Fourteenth Amendment, to subject unconsenting states to the jurisdiction of the federal courts. — U.S.-, 105 S.Ct. at 3150-51, 87 L.Ed.2d at 183.
. See, e.g., Lelsz v. Kavanaugh, 710 F.2d 1040 (5th Cir.1983) [class action against Texas Department of Mental Health and Mental Retardation, ongoing in E.D.Tex., civil action No. 5-74-95-CA]; Valley v. Rapides Parish School Board, 646 F.2d 925 (5th Cir.1981) [class action of sixteen years duration seeking desegregation of local public schools in Louisiana]; Gates v. Collier, 501 F.2d 1291 (5th Cir.1974) [class action seeking to remedy unconstitutional prison conditions in the Mississippi state penitentiaries).
All of these are properly considered as Fourteenth Amendment cases because they are suits which seek the vindication of federal rights that are applicable against the States by virtue of the incorporation of the Bill of Rights through the Fourteenth Amendment.
. See also New State Ice Co. v. Liebmann in which Justice Brandéis observed
[I]t is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.
285 U.S. 262, 311, 52 S.Ct. 371, 76 L.Ed. 747 (1932) (Brandéis, J., dissenting).
. See supra pp. 7-11.
. Workman v. Mayor, Alderman, and City of New York, 179 U.S. 552, 560, 21 S.Ct. 212, 45 L.Ed. 314 (1900); Cf. Monaco, 292 U.S. at 322-23, 54 S.Ct. at 747-48.
. See for example, Cosmospolitan Shipping Co. v. McAllister, 337 U.S. 783, 69 S.Ct. 1317, 69 L.Ed. 1692 rehearing denied, 338 U.S. 839, 70 S.Ct. 32, 94 L.Ed. 513 (1949), overruling Hurst v. Moore-McCormack Lines, 328 U.S. 707, 66 S.Ct. 1218, 90 L.Ed. 1534 (1946); Caldarola v. Eckert, 332 U.S. 155, 67 S.Ct. 1569, 91 L.Ed. 1968 (1947) (cases dealing with seamen on government owned and operated ships under war shipping Administration Agents).