dissenting:
The majority holds that the Washington Metropolitan Area Transit Authority (“WMATA”), an entity created pursuant to an interstate compact among Maryland, Virginia, and the District of Columbia that possesses Eleventh Amendment immunity, see Morris v. WMATA, 781 F.2d 218, 219-20 (D.C.Cir.1986), has waived its immunity pursuant to 42 U.S.C. § 2000d-7 by accepting federal transportation funds. It also *1171holds that this waiver and section 504 of the Rehabilitation Act, which together subject WMATA to private damages suits for employment discrimination on the basis of disability, represent a valid exercise of Congress’s power to appropriate money to “provide for the common Defence and general Welfare of the United States” as applied in this case. U.S. Const, art. I, § 8, cl. 1. In my view, the second holding contravenes the principle that “Congress’ authority is limited to those powers enumerated in the Constitution, and ... those enumerated powers are interpreted as having judicially enforceable outer limits.” United States v. Lopez, 514 U.S. 549, 566, 115 S.Ct. 1624, 1633, 131 L.Ed.2d 626 (1995).
I would hold that conditioning acceptance of federal transportation funds on a state’s acquiescence to private damages suits for disability discrimination in employment is not a valid exercise of Congress’s power under the Spending Clause under the rule of New York v. United States, 505 U.S. 144, 167, 112 S.Ct. 2408, 2423-24, 120 L.Ed.2d 120 (1992), and South Dakota v. Dole, 483 U.S. 203, 207, 107 S.Ct. 2793, 2796, 97 L.Ed.2d 171 (1987). I would further hold that this step is not within Congress’s enforcement power under section 5 of the Fourteenth Amendment.
I would reverse the judgment of the district court for the reason that Congress lacks the power to subject states, or entities like WMATA treated as states for purposes of immunity, to suits for money damages for disability discrimination in the manner it has done here.
A. Spending Clause
With all respect, I disagree with the majority that Congress has the power under the Spending Clause to expose the states to liability for the sort of suit Barbour brought against WMATA. “Congress may attach conditions on the receipt of federal funds,” but “[s]uch conditions must (among other requirements) bear some relationship to the purpose of the federal spending.” New York v. United States, 505 U.S. 144, 167, 112 S.Ct. 2408, 2423-24, 120 L.Ed.2d 120 (1992) (quoting South Dakota v. Dole, 483 U.S. 203, 206, 107 S.Ct. 2793, 2796, 97 L.Ed.2d 171 (1987)) (internal quotation marks omitted). That relationship is a nexus between the condition imposed and the “federal interest in particular national projects or programs” represented by the grant of funds. Dole, 483 U.S. at 207, 107 S.Ct. at 2796 (quoting Massachusetts v. United States, 435 U.S. 444, 461, 98 S.Ct. 1153, 1164, 55 L.Ed.2d 403 (1978)).
The Dole principle is fundamental to our constitutional structure. Without it, “the spending power could render academic the Constitution’s other grants and limits of federal authority.” New York, 505 U.S. at 167, 112 S.Ct. at 2423-24. As the Supreme Court explained in the only case in which it struck down an Act of Congress as exceeding Congress’s Spending Clause authority, it is implausible to presume that
the makers of the Constitution, in erecting the federal government, intended sedulously to limit and define its powers, so as to reserve to the states and the people sovereign power, to be wielded by the states and their citizens and not to be invaded by the United States, they nevertheless by a single clause gave power to the Congress to tear down the barriers, to invade the states’ jurisdiction, and to become a parliament of the whole people, subject to no restrictions save such as are self-imposed.
United States v. Butler, 297 U.S. 1, 78, 56 S.Ct. 312, 324-25, 80 L.Ed. 477 (1936).
True, a state can simply decline to accept a conditional funding grant, but such *1172grants are no less regulatory simply because acceptance is optional. The offer of funds creates an incentive to comply with the regulation regardless and therefore represents a direct and real attempt by the federal government to regulate even if the condition is declined. In this respect, conditional funding grants are no less regulatory than any form of federal regulation of the states. Direct regulations threaten penalties; conditional funding grants threaten to withhold rewards. There is no functionally significant distinction between the two sorts of inducements as to their regulatory character (though of course, as the majority points out, there are other differences, like those pointed out by the Supreme Court in College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, 527 U.S. 666, 686-87, 119 S.Ct. 2219, 2231-32, 144 L.Ed.2d 605 (1999)).1 The germaneness requirement of South Dakota v. Dole and New York v. United States is therefore essential to maintain some semblance of the Framer’s original framework of a federal government of limited and enumerated regulatory power.
There is no reasonably close relationship between the grant of funds here and the imposed condition. The purpose of the federal funds WMATA receives is to subsidize the mass-transit services WMATA provides. They are transportation funds. As applied in this case, the condition is subjecting WMATA to a private suit for money damages for discriminating against its employees on the basis of disability. Prohibiting disability discrimination in employment is simply not “Necessary and Proper,” U.S. Const. art. I, § 8, cl. 18, to spending money for mass transit. The effect of such a prohibition is to create an entitlement for the disabled, perhaps a laudable goal, but not one necessary or proper to providing mass transit.
Barbour’s brief offers no answer to this argument. The government and the majority make an attempt to fill this gaping void in Barbour’s case. However, I am not convinced that the connection they assert between the funds and the condition here is constitutionally adequate.
Following the government and several other circuits, the majority asserts that Congress’s judgment that “it did not want any federal funds to be used to facilitate disability discrimination” in employment is enough of a connection between the condition here and the mass-transit funds. Maj. op. at 1168. This cannot be right. The majority and the government are saying that the legislature can identify something a state does that it does not like - in this case, discriminate on the basis of disability - and condition any grant of funds on a state’s not doing that act any more, assuming the condition is otherwise constitutionally valid. Presumably, Congress has an “interest” in preventing states from doing anything with its funds that it does not like, and there is nothing magical about disability discrimination that makes *1173the “interest” in preventing it distinctively federal. If such an “interest” were enough to sustain such legislation, that would leave the Spending Clause without any “judicially enforceable outer limit[ ].” Lopez, 514 U.S. at 566, 115 S.Ct. at 1633. In a system in which the federal government’s powers remain limited and enumerated, such an argument must fail.
The reasoning of the circuits the majority cites is no better. The First Circuit’s reasoning consists of a single sentence, to wit, that the condition “is manifestly related to Congress’s interest in deterring federally supported agencies from engaging in disability discrimination.” Nieves-Marquez v. Puerto Rico, 353 F.3d 108, 128 (1st Cir.2003) (citing A.W. v. Jersey City Public Schools, 341 F.3d 234 (3d Cir.2003)). As discussed, however, the proper test under Dole and New York is whether the condition is germane to the interest in the “particular national project[] or pro-grame ],” Dole, 483 U.S. at 207, 107 S.Ct. at 2796 (emphasis added), not whether Congress has a generalized “interest” in imposing the condition. For the reasons I have stated, the condition here fails the Dole test as properly understood. The Third and Ninth Circuits’ reasoning essentially tracks the reasoning of the First Circuit. See A.W., 341 F.3d at 243-44; Koslow v. Pennsylvania, 302 F.3d 161, 175-76 (3d Cir.2002); Lovell v. Chandler, 303 F.3d 1039, 1051 (9th Cir.2002).
Nor do I think that the majority’s holding follows from the three Supreme Court cases it cites. The majority relies heavily on Lau v. Nichols, 414 U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1 (1974). Lau was a class-action suit brought against San Francisco Unified School District officials for violating regulations promulgated by the Department of Health, Education, and Welfare pursuant to Title VI of the of the Civil Rights Act of 1964, which prohibited state programs or activities that receive federal funds from discriminating on the basis of race, color, or national origin. Id. at 566, 94 S.Ct. at 788. The regulation required the school district, “[wjhere inability to speak and understand the English language excludes national origin-minority group children from effective participation in the educational program offered by a school district, [to] take affirmative steps to rectify the language deficiency.” Id. at 568, 94 S.Ct. at 789. Plaintiffs claimed that the school district had not given 1,800 students of Chinese ancestry language instruction, and therefore violated this regulation. The Court, per Justice Douglas, held that this regulation was a valid exercise of Congress’s spending power, as the schools received federal educational funds. Id. at 569, 94 S.Ct. at. 789-90.
Quoting dicta from Lau, the majority states that “[s]imple justice requires that public funds, to which taxpayers of all races contribute, not be spent in any fashion which encourages, entrenches, subsidizes, or results in racial discrimination.” Maj. op. at 1170 (internal quotation marks and citation omitted). ' The principle the majority quotes from Lau, which was itself a quotation from a floor speech given by Senator Hubert Humphrey during the debates on the Civil Rights Act of 1964, is obvious dicta, and singularly unpersuasive dicta at that. A policy argument made in a floor statement by a Senator cannot be the basis of a legal doctrine meant to restrain the very exercise of policy-making power such an argument represents. Racial discrimination, in fact, was not at issue in Lau at all; it was a challenge to a regulation that prohibited national-origin discrimination. Neither Lau nor the Supreme Court’s description of Lau in New York v. United States, 505 U.S. at 167, 112 S.Ct. at 2423-24 is, as the majority implies, authority for the notion that Congress may condition any appropriation on a state’s *1174agreeing to any “nondiscrimination” rule, because in Lau the school district’s failure to provide language instruction to foreign-born students bore an obvious relation to the federal educational appropriations the school district received. In this case, there is no such relationship.2
Equally distinguishable is the Supreme Court’s recent decision in Sabri v. United States, — U.S. -, 124 S.Ct. 1941, 158 L.Ed.2d 891 (2004), also cited by the majority. In Sabri, the Court held that conditioning federal funds on criminalizing bribery of officials of state entities that receive at least $10,000 in federal funds was a valid exercise of Congress’s Spending Clause power. The Court reasoned that there was a generalized interest linked to all particular federal appropriations in preventing local officials from being bribed, because “bribed officials are untrustworthy stewards of federal funds, and corrupt contractors do not deliver dollar-for-dollar value,” id. at 1946, and because “Congress was within its prerogative to protect spending objects from the menace of local administrators on the take,” id. at 1947.
This unexceptional recognition of the link between any federal appropriation and the federal government’s interest in ensuring that such an appropriation is not “frittered away in graft,” id. at 1946, falls far short of establishing the same sort of link between “discrimination” generally and any federal appropriation. As with graft, of course, the federal government may not like discrimination; but preventing graft ensures that funds are spent for the particular purposes for which Congress appropriated them, as opposed to any congressional purpose or “interest” whatsoever. Rampant bribery of WMA-TA officials, for example, would make it more difficult for federal funds to do the job of providing mass transit.3 So far as I can see, and so far as the government and majority’s reasoning goes, discrimination against WMATA’s employees on the basis of disability would not.4
*1175The final Supreme Court case cited by the majority, Grove City College v. Bell, 465 U.S. 555, 104 S.Ct. 1211, 79 L.Ed.2d 516 (1984), did not involve the Spending Clause at all, but instead was a First Amendment case, id. at 575, 104 S.Ct. at 1222.5 It therefore sheds little light oh the' issues here.
For all of these reasons, I conclude that Congress lacks the power under the Spending Clause to subject WMATA to suits for money damages for disability discrimination in employment.
B. Section 5 of the Fourteenth Amendment
My conclusion as to Congress’s power under the Spending Clause requires me, unlike the majority, to reach whether Congress has the power to do the same pursuant to its enforcement power under section 5 of the Fourteenth Amendment. I would hold that it does not.
Section 5 of the Fourteenth Amendment provides that “[t]he Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.” Although the power to “enforce” seems by its terms to be limited to legislation to remedy actual Fourteenth Amendment violations, see Tennessee v. Lane, — U.S. -, 124 S.Ct. 1978, 2009-10, — L.Ed.2d -, (2004) (Scalia, J., dissenting), the Supreme Court has held that “Congress’ power to enforce the Amendment includes the authority both to remedy and to deter violation of rights guaranteed thereunder by prohibiting a somewhat broader swath of conduct, including that which is not itself forbidden by the Amendment’s text,” Bd. of Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356, 365, 121 S.Ct. 955, 962-63, 148 L.Ed.2d 866 (2001) (internal quotation marks and citation omitted). Those enforcement steps that reach beyond the scope of the Fourteenth Amendment’s substantive guarantees, however, “must exhibit ‘congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.’ ” Id. (quoting City of Boerne v. Flores, 521 U.S. 507, 520, 117 S.Ct. 2157, 2164, 138 L.Ed.2d 624 (1997)).
Here, as was the case in Garrett, the constitutional right Congress is attempting to enforce is Barbour’s Fourteenth Amendment right to be free from irrational discrimination in employment on the basis of his disability. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 446, 105 S.Ct. 3249, 3257-58, 87 L.Ed.2d 313 (1985). The question becomes, then, whether subjecting WMATA to suits for money damages for disability discrimination on the basis of his employment is a “congruent and proportional” remedy for Barbour’s right. As the Su*1176preme Court held in Garrett, that requires me to examine whether “Congress identified a history and pattern of unconstitutional discrimination ... against the disabled” to justify the need for such a remedy, 531 U.S. at 368, 121 S.Ct. at 964-65, in particular, a pattern of state discrimination not “rationally related to a legitimate governmental purpose,” Cleburne, 473 U.S. at 446, 105 S.Ct. at 3257-58.
While I confess not to have engaged in a comprehensive independent review of the history of Rehabilitation Act section 504 and § 2000d-7(a)(1), the evidence that Barbour cites at least seems to fall woefully short of demonstrating anything approaching a widespread pattern of unconstitutional discrimination against the disabled by the states in general or WMATA in particular. (The government’s brief does not address the section 5 issue, only the Spending Clause issue.) Barbour cites evidence before Congress that he claims demonstrates that “States were not serving the most severely disabled” as of 1973, the year the Rehabilitation Act was passed. Br. for Appellee at 26. That falls far short of establishing the pattern Cleburne requires.
Moreover, the remedies created by the Rehabilitation Act against the states “raise the same sort of concerns as to congruence and proportionality as were found in City of Boerne.” Garrett, 531 U.S. at 372, 121 S.Ct. at 966-67. Section 504 of the Rehabilitation Act provides that “[n]o otherwise qualified individual with a disability ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination in any program or activity receiving Federal financial assistance,” 29 U.S.C. § 794, without regard to whether such conduct has a rational basis. This “accommodation duty far exceeds what is constitutionally required in that it makes unlawful a range of alternative responses that would be reasonable but would fall short of’ providing benefits to all persons regardless of their disabilities. Garrett, 531 U.S. at 372, 121 S.Ct. at 966-67. The remedies authorized by the Rehabilitation Act, in short, sweep far beyond what is constitutionally permissible.
I realize that the Supreme Court recently upheld Title II of the Americans with Disabilities Act as a valid exercise of Congress’s section 5 enforcement power in Tennessee v. Lane, — U.S. -, 124 S.Ct. 1978, 158 L.Ed.2d 820 (2004). But this case is not like Lane. It is instead very much like Garrett, in which the Supreme Court held that Congress exceeded its enforcement power under Title I of the ADA by subjecting states to suits for money damages for disability discrimination in employment. 531 U.S. at 373-74, 121 S.Ct. at 967-68. Title I concerns discriminating against the disabled in employment; Lane, in contrast, involved Title II, which prohibits discrimination against the disabled in public services, programs, and activities. See Lane, 124 S.Ct. at 1996 (Ginsburg, J., concurring). That broader scope meant that the constitutional rights Title II of the ADA purported to “enforce” in Lane concerned, in addition to Cle-bume-style irrational discrimination, “a variety of other basic constitutional guarantees, infringements of which are subject to more searching judicial review,” for example, the right of access to courts, id. at 1988. This case, in contrast, only involves, as discussed, Barbour’s right to be free from irrational discrimination. Barbour’s employment discrimination suit is more like a Title I than a Title II action. And as noted, Barbour has not shown that his suit for money damages is justified by the need to remedy a widespread pattern of state infringement of his right to be free from irrational employment discrimination.
*1177In sum, I would hold that subjecting WMATA to suits for money damages for disability discrimination in employment exceeds Congress’s power under section 5 of the Fourteenth Amendment. Because Congress had no power either under the Spending Clause or under the Fourteenth Amendment to authorize Barbour’s suit for damages, I would hold that WMATA is immune under the Eleventh Amendment from the suit. I would accordingly reverse the judgment of the district court and remand the case with instructions to dismiss the suit for lack of jurisdiction.
. My point is that the two sorts of powers are equally regulatory, and therefore that the Lopez principle applies to Spending Clause conditions with full force, not that there are no functional differences between the two. College Savings Bank recognizes that Spending Clause conditions differ from direct regulations under Congress's other Article I powers in that the latter are coercive. 527 U.S. at 686-87, 119 S.Ct. at 2231-32. The point, again, is that both are equally regulatory.
In any event, my disagreement with the majority in no way turns on this dispute over this aspect of Congress’s Spending Clause power. The majority assumes that there are limits to that power. The core of our disagreement is whether Congress's disapproval of disability discrimination is enough of a connection between the transportation funds and the condition imposed here. In my view, it is not.
. My point is not that the federal funds must be specifically appropriated for classroom instruction, but that the condition imposed on receiving the funds must be necessary and proper to providing education, regardless of how broad the educational programs financed by the funds are. That was true in Lau. Because prohibiting disability discrimination is not necessary and proper to providing mass transit, Lau is not applicable. The majority's explanation that ''[njothing in Lau suggested that the federal funds were, or had to be, intended for classroom instruction rather than, for example, the acquisition of equipment or the construction of athletic facilities,” Maj op. at 1169, does not speak to this point.
. This is the reason the Court did not need to require a connection between the bribe and the federal money: any bribe, the Court reasoned, bears a relation to the particular purpose of a grant of funds (whether it be mass transit, education, or mushroom subsidies). Bribed officials are untrustworthy regardless of the reason the government appropriates the funds. Thus, my distinction of Sabri does not, as the majority states, "overlook! ]”, Maj. op. at 1170 n.9, the fact that the Court did not require this connection. To the contrary, it explains why the court did not require it.
.The majority’s attempt to assert a particular connection between mass transit and disability discrimination is that "discrimination 'fritter[s] away' federal funds ... just like the graft discussed in Sabri," Maj. op. at 1170, and it is doubtful. The Supreme Court's point in Sabri was that bribed officials divert funds toward the source of the bribe to advance their own personal financial gain, necessarily away from the congressionally specified purpose for spending the funds. The fact that such officials are untrustworthy in this way therefore gave the Court a reason, apart from Congress's judgment that it did not like graft, to think that such a condition was necessary and proper to providing any federal funds.
There is no reason to believe that a similar diversion or lack of trustworthiness, and therefore, a similar connection to the federal *1175funds, occurs when officials discriminate on the basis of disability against their employees. Discriminating on the basis of disability has nothing to do with “wasting” or “diverting” mass transit funds. To the contrary, requiring WMATA to pay money damages for such discrimination affirmatively depletes its transportation funds. There is therefore no reason, apart from Congress's judgment that its money should not finance activities it believes morally opprobrious, to think that the disability discrimination "fritters away” funds the way graft does. A judgment that an activity is morally wrong is not a connection between a condition and the funding program under the Dole test.
. The majority says that the Supreme Court in Grove City "treat[ed] the spending power” and implies that the reason this is so is because Grove City cited Pennhurst State School & Hospital v. Halderman, 451 U.S. 1, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981), a Spending Clause case. Maj. op. at 1169. The reference quoted by the majority was in fact a part of the First Amendment analysis, not a delineation of the reach of the spending power.