(concurring in part and dissenting in part):
I concur fully in the majority’s holding that the Social Security Act does not authorize a state to condition welfare assistance payments upon a mother’s institution of a support action against those persons legally responsible for the support of her dependent children, as the Florida Legislature has attempted by Florida Stat., Section 409.245 (1971), F.S.A., and regulations thereunder. But as to the majority’s award of retroactive welfare benefits I respectfully dissent. Although the question has its troublesome aspects, I think that the better view is that the award by a federal court of such benefits in retrospect is proscribed by the Eleventh Amendment to the U. S. Constitution.
It is helpful as a starting point to examine briefly the background against which the Eleventh Amendment came into being. In Chisholm v. Georgia, 1793, 2 U.S. (2 Dall.) 419, 1 L.Ed. 440, the Supreme Court required the State of Georgia to be an unwilling defendant in an action brought by South Carolina citizens as executors of the estate of a former Georgian for payment due on bonds the decedent had received from debtors who had thereafter had their property confiscated by Georgia. This holding contradicted what some Federalists of the time, The Federalist, No. 81 (Hamilton), had represented as the meaning of the judicial power of the federal court as delineated in U.S.Const. Art. Ill, Section 2. The foreseeable effect of the decision would be to stimulate similar actions against other financially insecure states, presenting grave dangers to their finances; Mathis, The Eleventh Amendment, 2 Ga.L.Rev. 207, 224-230, 1968. The prompt adoption of the Eleventh Amendment by the states, 1794-1798, followed as an unmistakable and direct reaction to that threat:
“The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S.Const. Amend. XI.
Clearly, “(t)o suits against a State, without her consent, brought by citizens of another State . •. . the Eleventh Amendment erected an absolute bar”. Monaco v. Mississippi, 1934, 292 U.S. 313, 329, 54 S.Ct. 745, 750-751, 78 L.Ed. 1282, 1287. Further, the Eleventh Amendment is now uniformly interpreted to apply to suits against a state by its own citizens. Hans v. Louisiana, 1890, 134 U.S. 1, 14-15, 10 S.Ct. 504, 507, 33 L.Ed. 842, 847.
In our case the State of Florida is patently the actual party to the performance of the retroactive benefits sought. It is the only party under obligation to make the payments. Once we enjoin the defendant state officials from relying on Section 409.245 in the future, as individuals, they have no personal interest in the subject matter of the suit and defend only as representing the State. Payment of the retroactive benefits prayed for could only be by the State from State funds. The situation is analogous to that in Sundry African Slaves v. Madrazo, 1828, 26 U.S. (1 Pet.) 110, 7 L.Ed. 73. There the Court, as to a claim against the Governor of Georgia as governor, where the demand was made upon him, not personally but officially, for money in the Treasury of the *479State and for slaves in the possession of the state government, held Georgia should be considered as the party on the record. The suit was held not maintainable under the ban of the Eleventh Amendment.
The authorities relied upon by the majority in support of the award of retroactive payments I find unpersuasive. I think we should align ourselves with the position taked by the Second Circuit in Rothstein v. Wyman, 1972, 467 F.2d 226, Part III, page 236.
I read Ex parte Young, 1908, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714, as standing simply for the proposition that a suit to restrain threatened unconstitutional action by an individual who is a state officer is not to be deemed a suit against the state. See 209 U.S. at 159-160, 28 S.Ct. at 453-454. Ex parte Young is distinguishable in the present circumstances first of all because we do not reach the constitutional question raised. Further, the majority here entertains a request going far beyond restraint of a state official. As noted, the demand is upon Florida’s treasury.
In Zarate et al. v. State Department of Health and Rehabilitative Services, S.D.Fla.1971, 347 F.Supp. 1004, aff’d mem. 1972, 407 U.S. 918, 92 S.Ct. 2462, 32 L.Ed.2d 803, relied upon by the majority, Florida was found to violate the Equal Protection Clause of the Fourteenth Amendment by conditioning welfare benefits either upon the beneficiary’s possession of U. S. citizenship or upon the alien beneficiary’s residence in the United States for a certain number of years. Similarly, retroactive benefits were granted in McDonald,1 Shapiro,2 Gaddis,3 and Harkless4 after constitutional infirmities were found to exist.
It is true that in Machado v. Hackney, W.D.Tex.1969, 299 F.Supp. 644, the court granted retroactive benefits where the Texas welfare statute involved was merely found to be inconsistent with the Social Security Act. However, the Machado court relied on King v. Smith, 1968, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118, which in turn did not mention this issue of retroactive payments, and offered no authority for granting such payments. The Alexander5 court did not refer to the Eleventh Amendment, discussing instead only the general issue of retroactive application of judicial decisions not involving a state as an unwilling defendant.
Finally, in Doe 6 although the majority of the divided district court, 332 F. Supp. at 64, instructed the defendant state official to compute the amount wrongfully withheld from each of the individual plaintiffs denied aid and to remit such amounts to them, it did not discuss the effect of the Eleventh Amendment upon the granting of such relief. It is of course impossible to tell from the cryptic “judgment affirmed” language of the memorandum decision of the Supreme Court whether or not this problem was before the Court at all. Its lack of discussion in either of the district court opinions is some indication at least that the Supreme Court was not presented with it.
Without clearer precedent I am not disposed further to strip from the Eleventh Amendment its historic meaning by requiring retroactive payments from the State’s Treasury absent a finding of constitutional violation. Cf. Rothstein *480v. Wyman, supra. I conclude with the Second Circuit in Rothstein v. Wyman that:
“. . . the Eleventh Amendment stands in the way. It is for (Florida), and not for the federal courts, to decide what policy is to be followed with respect to retroactive payments in the circumstances of this record.” 467 F.2d 241-242.
. McDonald v. The Department of Public Welfare of the State of Florida, 5 Cir. 1970, 430 F.2d 1268.
. Thompson v. Shapiro, D.Conn.1967, 270 F.Supp. 331.
. Gaddis v. Wyman, S.D.N.Y.1969, 304 F.Supp. 717, aff’d sub nom., Wyman v. Bowens, 1970, 397 U.S. 49, 90 S.Ct. 813, 25 L.Ed.2d 38.
. Harkless v. Sweeny Independent School District, 5 Cir. 1970, 427 F.2d 319, cert. denied 1970, 400 U.S. 991, 91 S.Ct. 451, 227 L.Ed.2d 439.
. Alexander and Townsend v. Weaver, N.D.Ill.1972, 345 F.Supp. 666.
. Doe v. Swank, N.D.Ill.1971, 332 F.Supp. 61, aff’d mem. sub nom. Weaver v. Doe, 1971, 404 U.S. 987, 92 S.Ct. 537, 30 L.Ed.2d 539.