The abrogation exception did not apply, because the U.S. Congress can only waive sovereign immunity pursuant to the power granted by § 5 of the Fourteenth Amendment (see Fitzpatrick v. Bitzer; Seminole Tribe v. Florida), and both the Lanham Act and the Trademark Remedy Clarification Act were enacted pursuant to Congress' Article I powers. Moreover, § 5's "term 'enforce' is to be taken seriously—that the object of valid § 5 legislation must be the carefully delimited remediation or prevention of constitutional violations," College Savings Bank at __, and because the asserted property right in question was not in fact a property right ("The hallmark of a protected property interest is the right to exclude others ... [but] [t]he Lanham Act's false-advertising provisions ... bear no relationship to any right to exclude; and Florida Prepaid's alleged misrepresentations concerning its own products intruded upon no interest over which petitioner had exclusive dominion") (id.
The exception of abrogation did not apply, because the U.S. Congress can only waive sovereign immunity in accordance with the authority granted by § 5 of the Fourteenth Amendment (see Fitzpatrick v. Bitzer; Seminole Tribe v. Florida), and both the Lanham Act and the Trademark Remedy Clarification Act were enacted under Congress' Article I powers. Furthermore, § 5's "term 'enforce' is to be taken seriously—that the object of valid § 5 legislation must be the carefully delimited remediation or prevention of constitutional violations," College Savings Bank at __, and because the asserted property right in question was not in fact a property right ("The hallmark of a protected property interest is the right to exclude others ... [but] [t]he Lanham Act's false-advertising provisions ... bear no relationship to any right to exclude; and Florida Prepaid's alleged misrepresentations concerning its own products intruded upon no interest over which petitioner had exclusive dominion") (id).