*1 TRANS-HUDSON AUTHORITY v. PORT HESS еt al. CORPORATION 14, 1994 November 3, 1994 October Argued No. 93-1197. Decided *2 Ginsburg, Stevens, J., Court, opinion delivered the in which Kennedy, Souter, Breyer, joined. Stevens, JJ., J., and filed a concur- ring opinion, post, p. O’Connor, J., dissenting opinion, 53. filed which Rehnquist, Thomas, JJ., and Scalia J., joined, post, p. C. and 55.
Lawrence A. Katz the cause for argued With petitioners. him on the briefs were Jr., A. and Joseph Coffey, David J. Bederman. With cause for respondent. argued H. Welsh
Hugh Burke, Donald F. P. Berg, Arthur were him on the brief Tannenbaum.* Anne M. Ginsburg of the Court. the opinion delivered
Justice accidents work-related out of cases arise These paired conductor, employ- a train engineer a locomotive which interstate compact, authorized bistate railway ees of a United The courts below —the injuries. sustained.personal District of New Jersey, for District Court the Third Circuit— of Appeals States Court the United the Eleventh the ground on both complaints rejected from suit in fed- railway sheltered respondent *3 an intercircuit to resolve certiorari eral court. We granted Concluding S. this issue. U. conflict on Trans- Authority the Port railway, bistate that respondent with the Elev- is not cloaked (PATH), Hudson Corporation * Wynns filed a brief for the Railway- Mahoney and L. Pat William G. curiae Association as amicus urging reversal. Labor Executives’ of New were filed for the State Briefs of amici curiae urging affirmance Poritz, An- Jersey, Attorney et al. Deborah T. General of New Jersey by Jacobson, Silkowitz, Stoloff, Mary Robert H. Assistant Attor- drea M. Isaac, General, Philip Deputy Attorney joined and Eldad General, neys respective jurisdictions as follows: G. by Attorneys General for their the Alabama, Bry- Winston Koppell James H. Evans York, of Oliver of New Blumenthal of Con- Colorado, Gale A Norton of Richard Arkansas, ant of Hawaii, Larry Robert A Marks of Michael J. Bowers necticut, Georgia, of of In- Illinois, W.Burris of Pamela Carter Idaho, EchoHawk of Roland Stephen T. Chris Gorman of Richard Kansas, Kentucky, Robert diana, of Curran, Jr., Jr., Maryland, Ieyoub, Joseph Scott Louisiana, P. J. of of Humphrey Minnesota, Harshbarger Hubert H. III of Massachusetts, of Joseph P. Montana, Mike Moore of Mazurek Frankie Sue of Mississippi, Papa Easley Michael F. of Nevada, Mexico, Del Tom Udall of New of Loving B. Ohio, Oklahoma, Lee Fisher of Susan Theo- Cаrolina, of North Preate, Jr., Kulongoski Oregon, R. of Ernest D. T. Pennsylvania, dore of Dakota, Jeffrey Carolina, Travis Medlock of South Mark Barnett South Amestoy Vermont, III of E. L. James S. Gilmore and James Virginia, Doyle Wisconsin; by for the Council of State Governments et al. Elgarten. Richard Ruda S. Clifton
enth Amendment that a State we reverse enjoys, of the Third Circuit. judgment
I A Petitioners Albert Hess and F. Walsh, Charles both rail- workers, road were in unrelated incidents in injured course of their PATH, PATH. employment by wholly owned of the Port subsidiary New York and (Port New Jersey a com- Authority), operates muter railroad New York connecting northern New City actions Jersey. separate personal commenced in injury United District Court for District of New Jer- sey, to recover petitioners sought damages PATH’S al- both claimed a leged negligence; right under compensation the federal law to railroad governing injuries workers, Federal (FELA), Act Employers’ Liability Stat. as seq.1 45 U. S. C. 51 et amended, § Hess and Walsh filed their within the time limit complaints set 3-year FELA, see 35 Stat. amended, 56,§ 45 U. S. C. but neither peti- tioner met the limit 1-year the States’ specified statutory consent to sue the Port See N. Authority. J. Stat. Ann. (West §§32:1-157, 32:1-163 1990); N. Y. Unconsol. Laws 1979). §§7101, 7107 (McKinney *4 (1)
PATH moved to action, dismiss each PATH’S asserting qualification as a state entitled to agency the Eleventh Amendment from suit in federal court enjoyed by (2) New York and New Jersey,2 failure to petitioners’ additionally Hess Inspection Act, invoked the Boiler ch. 36 Stat. amended, seq., § et 45 U. S. C. as a basis for his claim for damages. 2The Eleventh provides: Amendment
“The Judicial
of the United States shall not be construed to ex-
any
tend to
suit in
equity,
law or
prosecuted
commenced or
against one of
by
the United States
State,
Citizens of
by
another
Subjects
Citizens or
any
of
Foreign State.”
1-year
pre
limit
proceedings within the
commence court
Jersey.
prece
Third
and New
Circuit
scribed New York
Authority supported
plea.
PATH’S
concerning the Port
dent
Authority
Assn., Inc. v. Port Au
Police Benevolent
In Port
(Port
Jersey,
thority
The District Court Jersey court the FELA’s York state sued a New or New 1-year prescription, 3-year period, limitation not States’ applied. id., 1183-1185,and n. 16. This have would in Hilton v. South Carolina from our reaffirmation followed (1991), Railways that the en- Comm’n, 502 U. S. Public regulation including all of railroad tire federal scheme — wholly applies railroads, those all even FELA terms — and New Jersey Port of New York The court referred to the (1985), 42-44 which shows that Report Annual Financial Comprehensive $271 of over million Fund had a balance Authority’s General Reserve at the end of 1985. *5 rejection by by a federal court Time-bar
owned one State. prescription statutory would claim that federal of a federal brought timely, in stаte had the case been have rendered explained, comprehensible, the District Court court, becomes “ recognized does ‘the Eleventh Amendment it is once ” Supp., apply at Hess, 809 F. 1183-1184 in state courts.’ not 205); Supp., (quoting see 809 F. at Hilton, S., 502 U.
n. 16. appeal,
Consolidating on the Third Circuit Hess and Walsh judgments. summarily 8 F. 3d the District affirmed Court’s (1993)(table). B Authority, immu- Port whose The nity was created in when cases, at issue in these Compact Congress, pursuant Interstate to the Constitution’s Authority’s par- compact between the to a Clause,4consented Through compact, the bistate ent Stat. 174. States. Jersey sought “a co- to achieve better York and New New transportation and other facilities terminal, ordination through port of New York.” in, about and commerce (West 1990); §32:1-1 Law N. Y. Unconsol. N. J. Stat. Ann. 1979). § (McKinney compact grants the Port Au- thority power any
“purchase, operate lease terminal construct, and/or transportation facility [the or within Port of New York charges District; thereof; and to make for the use any purposes oper- own, hold, of such lease and/or personal property, money real to borrow аnd se- ate or by by mortgages upon any prop- or cure same bonds § erty held or to be held it.” N. J. Stat. Ann. 32:1-7 I, 10, § provides: Article cl. of the Constitution shall, Congress, lay any Duty “No State without Consent of Ton- Peace, nage, keep Troops, Ships Agree- or of War time of enter into State, Compact foreign Power, ment or with or with a engage another or War, invaded, actually Danger unless such imminent as will not delay.” admit *6 (McKin- § Law 6407
(West accord, N. Y. Unconsol. 1990); 1979). ney District, York Port of New domain, the Authority’s
The Port York Har- New that embraces area a defined geographic See N. J. and New Jersey. York of New bor, including parts § Law 6403 (West 1990); N. Y. Unconsol. §32:1-3 Ann. Stat. 1979).5 (McKinney inde- financially as a was conceived Authority
“The Port from private derived funds primarily with entity, pendent New Jersey, N. Y. Trust Co. United States investors.” income ac- investment Tolls, fees, and 41, 431 U. S. See App. financial position. secure Authority’s count for the 60a-61a.6 to Pet. for Cert. State, each govern selected commissioners, six
Twelve §§32:1-5, 32:12-3 J. Ann. See N. Stat. Authority. the Port 1979); §6405 (West (McKinney Law Y. Unconsol. 1990); N. remove, for may § 6. Each State Laws, ch. 1930 N. Y. Ann. N. J. Stat. it See appoints. the commissioners cause, (West §6405 Law 1990); Y. Unconsol. N. §§32:1-5, 32:12-5 422, §4. Laws, ch. Consonant 1979); 1930 N. Y. (McKinney New York’s domain, four of with the Authority’s geographic York City, voters of New must be resident six commissioners New resident voters of the must be and four of New Jersey’s of New York District. See N. J. of the Port Jersey portion (West §6405 Law 1990); §32:1-5 N. Y. Unconsol. Ann. Stat. 1979). commissioners also Authority’s The Port (McKinney §32:1-35.61 Ann. serve as PATH’S directors. See N. J. Stat. 1979). (West §6612 Law 1990); (McKinney Y. Unconsol. N. 1990) (West 23.28(j) (defining larger § also N. J. Stat. Ann. 32:2— Authority obligation supply has commuter buses to area which Port §7202(10) (McKinney Supp. operators); N. Y. Unconsol. Law authorized 1994) (same). Authority $2.8 At the end of the Port had over billion in net $534 assets and in its General Reserve Fund. See Port million Comprehensive Jersey, Report of New York and New Annual Financial (1993) (hereinafter Report). 1993 Annual Financial The Governor of each State veto actions of the Port may from that State, commissioners actions including PATH taken as directors. See N. J. Stat. Ann. §§32:1-17, (West 32:1-35.61,32:2-6 to 32:2-9 1990); N. Y. Unconsol. Law 1979). §§6417, 6612, 7151-7154 (McKinney Acting jointly, the state legislatures may augment powers responsi- §32:1-8 bilities of the Port see Authority, N. J. Stat. Ann. *7 (West §6408 1990); N. Unconsol. Law 1979), Y. (McKinney the for which the Port specify purposes sur- Authority’s §32:1-35.142 revenues are See N. plus used. J. Stat. Ann. (West 1979). 1990); §7002 N. Y. Law Unconsol. (McKinney
Debts and other of the Port are not obligations Authority liabilities of the two States, and the do founding States not to funds the The appropriate Authority. and its im- compact the plementing bar Port from legislation drawing on state tax the revenue, credit of either pledging State, or otherwise on either imposing any charge State. See N. J. (West Stat. Ann. §§32:1-8, 1990); 32:1-33 N. Y. Unconsol. 1979). §§6408, Law 6459 (McKinney
The States did sums to cover the agree appropriate Au- “salaries, office and other thority’s administrative expenses,” (West §32:1-16 N. J. Stat. 1990); Ann. N. Y. Unconsol. Law §6416 but this (McKinney 1979), is undertaking mod- notably est.7 its terms, it “until the By only revenues from applies conducted the operations are by [P]ort [Authority adequate to meet all The of expenditures.” promise has a support low $100,000 from each ceiling: annually Thus, State. the no undertake cover the bulk of way the Author-
7Compact XV, provision expense article the for coverage, reads full: “Unless and operations until the revenues from by conducted the [P]ort [Authority adequate expenditures, are all legislatures to meet the appropriate, two statеs shall equal amounts, annually, salaries, for the office and expenses, other administrative such sum or sums as shall be by recommended [A]uthority approved the governors [P]ort of states, the two obligates but each only itself hereunder to the extent of one hundred year.” thousand dollars in one N. J. Stat. Ann. (West §32:1-16 1990); 1979). §6416 N. Y. (McKinney Unconsol. Law expenses.
ity’s operating capital Further, even lim- payments expense for which the States ited administrative approval contingent provided on advance both are may not Governors, ibid., see and the States’ treasuries be appropriated have legislatures nec- tapped until both (West 1990); §32:1-18 Ann. essary funds. See Stat. N. J. 1979). § judgment (McKinney A Law 6418 Y. Unconsol. N. apparent, not be against PATH, it thus would enforceable Jersey. against either New York or New C qualification Third assessment PATH’S The Circuit’s judgment with the conflicts Appeals for the on the same Second Circuit Court Feeney Port Trans-Hudson Cor matter. See (1989), grounds, on other poration, 873 F. 2d aff’d Circuit concluded: Second 495 U. S. compact legislation [of provision or of state
“No *8 compact] pursuant commits the treasuries tо the against satisfy judgments Author- the Port two states ____ ity that this insulation of state treasur- We believe Authority outweighs the Port ies from the liabilities of appointment gubernatorial veto both methods of immunity as the Amendment is con- so far Eleventh 2d, 873 at 631. cerned.” F. Feeney, judgment in affirmed the Circuit’s but
We Second enjoyed bypassed question whether PATH the States’ we immunity. See Port Feeney, Corp. 495 U. 299 Assum- v. S. Trans-Hudson Feeney ing, arguendo, suit in was tantamount a that the against ruled York and States,8 we that New New claim 8 prior with state and federal decisions assumption Our was accord See, arm or Howell agency. g., the Port a state e. v. typing (NJ 1940); 797, Supp. Trippe New York 34 F. 801 Authority, Port 119, 585, 123, New York 14 N. Y. 2d 198 N. E. 2d Authority, Port 586
39 effectively litigation. Jersey id., consented to the had (relying §§32:1-157, Ann. 32:1-162 at 306-309 on N. J. Stat. (West 1963); (McKinney §§7101, Laws N. Y. Unconsol. 1979)). arguable here, is not because Hess Consent 1-year prescrip- late to meet the commenced suit too Walsh specified by supra, Accordingly, tion the States. See 33. directly question petitioners the sole Hess and we confront present, and we hold that PATH is not entitled to Walsh from suit in federal court. Eleventh
II largely The Eleventh Amendment shields from suit leaving рarties consent, in federal court without their with against present permits, them, claims a State to if the State Adoption in the own tribunals. of the Amendment State’s immediately responded most to the States’ fears that “fed- pay Revolutionary eral courts would force them to their War leading financial debts, to their ruin.” Pennhurst State (1984) Hospital Halderman, 89, 465 U. School S. dissenting); Petty J., see also v. Tennessee- (Stevens, (1959); Bridge Comm’n, Missouri U. S. n. 1 (1933).9 perva- Fiske, 18, Missouri v. 290 U. S. More sively, jurisprudence empha- current Eleventh Amendment integrity sizes the retained each State in our federal system: recognition
“The in a Amendment is rooted that the although States, union, maintain certain attributes of sovereignty, including sovereign immunity. See Hans (1964); Authority, Miller v. Port New York 601, 606, J. 18 N. Misc. 1939). (Sup. A. 2d Ct. *9 9 adoption As Chief Justice John Marshall recounted: “[A]t of the [C]onstitution, indebted; greatly all the apprehension States were and the might prosecuted that these debts prompted be in the federal Courts” Virginia, of the Eleventh Amendment. Cohens v. passage swift 6 Wheat. (1821). 264, 406 generally Warren, See Supreme 1 C. The Court United (1922). History States 96-102 (1890). It thus accords Louisiana, 134 U. S. v. federa- of the respect as members owed them Authority v. Aqueduct and Sewer Rico Puerto tion.” (1993). Eddy, 139, 146 S. Inc., 506 U. & Metcalf position in significantly occupy different a entities Bistate themselves. system do the States than federal our sovereigns, elements constituent separate are the States, as typically are cre- contrast, entities, in Bistate of the Union. sovereigns: the Fed- two States discrete of three ations “ address ‘interests is to Their mission eral Government.10 nicely with the na- problems either not coincide that do “ ‘may ”—interests lines’ or with State tional boundaries ordinary channels badly all not served at served or be Thursby, Inter- political action.’” V. National Compact Study Cooperation: Interstate A state (1953) Regional Committee, (quoting Resources National (1935)); Development Planning Factors National Experiment Compact: A New Grad, Federal-State see Cooperative 825, 854-855 L. Rev. Federalism, 63 Colum. (1963)(Compact “broad, deal with formed to Clause entities regarded problems” “an affir- region-wide should not be sovereignty,” concept but as “in- of a narrow of state mation polity functioning parts regional dependently and of of a union.”). national congressional compact than a consent “is more
A accorded supple dealing confined within a device for with interests region. safeguarding [I]t national a means of . . . also Virginia Dyer Sims, 341 U. S. West ex rel. interest....” (1951). of New York and New The Port Jersey utility exemplifies of, Com- for, both the need and the pact Clause entities: concerns, implicate If the creation of a bistate does not federal Tennessee, Virginia
however, required. federal consent is not U. S. 517-520 *10 commerce, and of geography, the of view point
“From whole. York is an organic the Port of New engineering, law-making between the the is port split Politically, futile but in their States, respective independent two commerce The of land and mounting scarcity spheres. York of the Hudson New side concentrated on the have com- for foreign bulk of terminal facilities the the River a substantial side, to Jersey while it has made the merce, east- for the extent, breaking-up yards the terminal and sides of the addition, In both west-bound traffic. sought who have municipalities, are dotted with Hudson through in the general their interest problem to satisfy the United addition, a confusion local regulations. inter- its over has been asserting guardianship States one, in What in fact was commerce. foreign ade- situation could not be was the many. law Plainly ef- coordinated dealt with through except quately and the United States. York, Jersey, forts of New New action of facts a the unified The presented problem and law three law-making governments, of these Landis, Compact heeded facts.” Frankfurter & Ad- of the in Interstate Constitution —A Study Clause (1925) (footnote 34 Yale L. J. justments, omitted). an affront to the in federal court is not dignity
Suit court, for the federal relation to Clause Compact entity, distant, of a dis- such an instrument enterprise, hardly connected the federal court is ordained sovereign; rather, by the com- one of the founders. Nor is entity’s integrity en- when Clause compromised Compact pacting As federal is sued federal court. tity part plan the States to the prescribed Constitution, agreed coordination, unified action sharing, typify Again, Compact tribunal the federal creations.11 Clause trigovern- cooperative, regarded in this as alien cannot be *11 apparent arrangеment. here, This is all the more mental very and FELA claims of Hess claims in suit—the where supra, at 33. under federal law. See Walsh—arise Compact owe their existence Clause entities Because acting cooperatively, sovereigns and not to and federal supra, any n. their States,” see “one of the United accountability they tight political lack the tie to the diffuse; single people a has: that an instrument of State of one State compact, by very nature, shifts a interstate its “An authority part states, or to another state or of a state’s jointly agency create to run the the several states to the agency special compact. the control of an under Such appointed representatives gubernatorial^ or interests steps popular control, removed from is two or more by government.” Ridgeway, M. even of control a local Compacts: A of Federalism 300 Question Interstate any single representative in within our democ- sum, may political racy, voters exercise their will to direct state policy; by compact, however, created are not bistate entities subject to the unilateral control of one of the that States compose system. the federal
Accordingly, good amalgamate there is reason not to Com- pact agencies Clause entities with of “one of the United purposes. States” for Eleventh Amendment This Court so recognized Country Regional Estates, in Lake Inc. v. Tahoe (1979), Planning Agency, only prior 440 U. S. 391 case, Corp. Feeney, See Port Trans-Hudson 495 U. S. (1990) (Brennan, J., concurring part 314-316 concurring judgment) (observing single that no State has entity by dominion over an created compact interstate that state/federal shared is the essential entity); attribute of Ridgeway, Compacts: such an M. Ques Interstate A (1971) tion Federalism 297-300 (emphasizing limits of individual State’s entities). authority compact over interstate
to this entity one, which we decided a whether bistate qualified immunity.12 for Country rejected plea
Lake Regional a that the Tahoe (TRPA), Planning Agency agency an compact created parties, acquired which California Nevada were the im- munity which the Eleventh Amendment accords to each one parent argued of TRPA’s States. TRPA had that if the surely State, Amendment shields each then it must shield an important by [two] “so it could not be created special Congress.” without Act Id., at 400. “expansive reading,” That we said, warranted, was not specifies entity protected: “the State” “By protection by [the Eleventh] terms, its afforded *12 only Amendment of is available to ‘one the United agencies true, course, States.’ It is that some exer- cising permitted state have been to invoke the protect treasury Amendment in to the order from liability essentially practi- that have had the same would consequences judgment against cal as a the State itself. consistently But the to construe the Court has refused protection political Amendment afford to subdivisions though municipalities, such as and even such counties power.’” Id., entities a ‘slice of state at 400- exercise (footnotes omitted). approach: presume general thenWe set out a We would Compact agency qualify does not for Eleventh Clause “[u]nless immunity good Amendment there is reason to be- agency that the structured the to enable it lieve new enjоy protection special constitutional the States Comm’n, 275, 279, Petty Bridge U. S. Tennessee-Missouri 281- (1959), S., 308-309, 495 U. at involved Feeney, also Eleventh pleas by agencies; upheld we the exercise of bistate federal- jurisdiction court in both eases on the that the ground immunity asserted from suit had been waived. purpose.” Congress in that concurred that
themselves, and Id., 401. justification Country “no found in Lake
The Court language meaning reading limited into the additional considerations in that all relevant Indeed, Amendment.” compact plea. weighed against called TRPA’s case required major- “political subdivision,” and TRPA city appointees. county governing ity members be compact Obligations directed, “shall not TRPA, Ibid. prime binding function, we on either State.” TRPA’s be traditionally regulation use, a function of land noted, was agency’s by governments. performed Further, local litigation. gave performance rise to the of that function subject by were “not to veto at rules made TRPA Moreover, Id., at 402. the state level.” complex. Indicators of or the
This case is more they Country, point did in Lake all not, absence thereof do Authority’s wаy. 8 of the Port commis- the same While City be resident voters of either New York sioners must parts this indicator District,13 of the Port of New York other governance surely offset the States’ controls. of local Acting appointees. alone, All are state each commissioners may through Port its block meas- Governor acting together, through legisla- ures; States, both their Authority’s may enlarge powers tures, the Port and add to *13 responsibilities. its compact implementing legislation type and its do not Authority agency; they
the
as a state
instead
use various
“joint
agency”;14“body corporate
poli-
terms:
common
and
13
Cty.
Farias
Bexar
Bd.
Trustees
Mental Health Mental
Cf.
v.
of
for
Servs.,
(CA5)
Retardation
866,
autonomous,
925 F. 2d
(entity
875
held
and
Amendment,
thus not shielded
Eleventh
where board members
had
“qualified
region”),
denied,
be
voters
the
cert.
Pointing away immunity, lack Port financial for the responsibility States Authority. as a financed Conceived fiscally independent entity predomi- funds, see United Trust nantly by private Co. N. Y. New at Jersey, S., U. its generates decades has no revenues, own for received from money States. Estate, See Commissioner v. Shamberg’s (CA2 1944) (“In 2d 998, 1002 F. . . the states compact. (not to make annual agreed excess of appropriations state) $100,000 for each expenses until (West (Mc § N. 1990); § J. Stat. Ann. 32:1-4 N. Y. Unconsol. Law 6404 Kinney 1979); accоrd, (West 1990); §32:1-7 N. J. Stat. Ann. N. Y. Unconsol. 1979). §6407 (McKinney Law (West (Mc 1990); §32:1-33 §6459 N. J. Stat. Ann. N. Y. Law Unconsol. 1979). Kinney facilities, Other Authority Center, such as the World an office Trade complex housing private tenants, numerous Annual see 1993 Financial Re 33-35, id,., port Teleport, center, a satellite communications see typically operated by are not municipalities. either States or *14 46 operations to meet its ex were sufficient
[Revenues from its appropriations in were discontinued penses. These annual bridges, the Holland from the the revenues 1934 because sufficient.”), cert. had become Terminal and Inland Tunnel denied, 323 U. S. liability legal no for observed, bear as earlier States, pay- they responsible Authority the not are debts;
Port Authority against or PATH. judgments the Port ment of Authority “if PBA, that, assumed in Circuit, Port The Third pay. Authority need,” the would ever in is compact nothing or the laws of in the But 2d, at 416. F. supra, assumption. supports at 37-38. either State concisely stated: As the Second Circuit pledging Authority explicitly barred from Port “The money borrowing either state or from the credit of ap- provision for the its Even the name but own. up moneys expenses to propriation for administrative gover- prior approval by per year requires $100,000 appropriation before obli- state and an actual nor of each may gations expenses Moreover, be for such incurred. phrase other ex- ‘salaries, office and administrative essentially obligation clearly optional penses’ this limits very category expenses of the two states to a narrow and thus also evidences an intent to insulate the states’ Authority’s the vast bulk of the Port treasuries from operating capital expenses, including personal in- jury judgments.” Feeney, at 2d, F. 631.18 PBA, Authority the Third Circuit’s decision in Port Concerning Second Circuit said: understanding that,
“That decision ... was based on the Third Circuit’s judgment against Authority the event that ‘a were entered that was enough deplete resources, go serious its would be able to legislatures recoup oper- the state order to the amount needed for its ating expenses.’ implies To the extent that this statement that the states Feeney, must make such an appropriation, appears it to be in error.” PBA, 416). 2d, Port 2d, (quoting F. at 632 F.
47 III When indicators of in different immunity point directions, the Eleventh twin Amendment’s reasons fоr remain being our See at supra, prime guide. 39-40. We have already out that federal courts are pointed not alien to a bistate en- in tity Congress Nor is it participated creating. disrespect- ful to one State to call Clause upon Compact answer in federal supra, complaints court. See at 41-43. no threat to the Seeing genuine New York or dignity New in Jersey Hess and Walsh to allowing FELA pursue claims PATH in Lake against court, federal we as ask, in- Country structed, whether there is here reason to believe” “good States and the Port Congress designed Authority enjoy at immunity. S.,U. 401.
PATH that we urges find reason to good the Port classify as a state Eleventh agency Amendment pur- based on the poses control New York and New wield Jersey over the The States and can Authority. remove the appoint commissioners, Governors can veto Port ac- tions, and the States’ can legislatures determine the projects the Port Authority undertakes. supra, See at 36-37. But ultimate control of every state-created entity resides with the State, for the State may destroy unit it reshape any creates. “[Political subdivisions exist at the whim solely and behest (Bren- of their State,” Feeney, S.,U. at 313 nan, J., concurring part concurring judgment), yet cities and counties do not enjoy Eleventh Amendment immu- nity. See, e. Mt. g., Bd. Ed. Healthy City Doyle, U. S. (1977); Lincoln 274, County Luning, 133 U. S. 529, 530 Moreover, no one State alone can control the course of a Compact Clause entity. See supra, and n. 11. actual Gauging control, when particularly an en- has tity multiple creator-controllers, can be a “perilous in- “an quiry,” uncertain and unreliable exercise.” See Note, 92 Colum. L. id., Rev. 1284 (1992); see also at 1302, and n. 264 (describing to which “degree the state controls the “judicially “[intelligible”
entity” nor neither criterion manageable”). rendering dispositive home control does not
Moreover, preven impetus Eleventh for the Amendment: on paid judgments be out of a federal-court that must tion of treasury. Interpretation A Historical Fletcher, State’s Amendment, Rev. of the Eleventh 35 Stan. L.
(1983)
money judgments against
(identifying “the award of
*16
the
“the traditional core of eleventh amendment
states” as
recog
protection”).19 Accordingly,
Appeals
of
have
Courts
vulnerability
purse
nized the
of the
as the most sa
State’s
See,
lient fаctor
Eleventh Amendment determinations.
Cty.
g.,
Vigo
Corp.,
728,
e. Baxter
26 F. 3d
732-733
v.
School
(CA7 1994) (most
entity
significant factor is whether
has
funds);
power
Sayre,
996,
to raise its own
Hutsell v.
5 F. 3d
1993) (“The
(CA6
important
is whether
999
most
factor ...
treasury.”),
monetary
judgment
paid
would be
out of the state
(1994);
Eddy,
denied,
rt.
The Port and actual financial inde Authority’s anticipated supra, its own see long history paying way, pendence —its 37-38, 45-46 —contrasts with the situation of n. transit facilities that fiscal tolls on their heavy founding place Cargo Transport, Inc. R. Alaska v. Alaska States. Corp., (CA9 1993), 3d 378 Eleventh Amend F. example, ment was accorded a railroad immunity thinly capitalized that for its existence on a “financial depends state-provided Id., at 381. And in Morris net of broad dimension.” safety Washington Metropolitan Authority, Area Transit (CADC F. 2d 218 Eleventh Amendment was 1986), immunity accorded an interstate transit whose revenue system short fall and the States from Congress cooperating anticipated start, the an on funds from enterprise constantly dependent operating governments sizable participating to meet its
the con Morris court As the id., at 225-227. deficits. practi agency that, as a “[WJhere so structured is an cluded: judgment agency must ex survive, tois if the matter, cal sense and the against treasuries, common pend itself sovereign require that amendment the eleventh rationale of agency.” There is no Id., at 227.20 to the attach agency requirement structured, as the where such self-sustaining. Royal Cf. Carib is, to be Port Authority, Corp. 8, 10-11 973F. 2d Rico Ports v. Puerto bean J.) 1992) (CA1 (rejecting (Breyer, C. despite
immunity plea, control over Commonwealth’s planning, administration, wherе agency’s executives, financing depend agency for its not on Commonwealth did including judgments expenses, own income and covered its it). against Authority’s private funding that the Port
PATH maintains differently. independence should be assessed and financial Operating profitably, Port dedicates at least surplus public projects which the them- some of its example, might As an selves otherwise finance. PATH program Authority purchases which the Port notes a under charge leases or transfers them without buses and then private transportation public entities in both States. (West §§32:2-23.27 1990); to 32:2-23.42 See N. J. Stat. Ann. §§7201-7217 (McKinney 1994); Supp. Y. Laws N. Unconsol. Report judgment against 1993 Annual Financial 66. A Authority, by reducing Authority’s contends, PATH Port surplus projects, produces available to fund such an effect equivalent impact judgment directly against to the of a suggests, distinguishing follows, It PATH State. *18 The decision in Morris is supra, compatible approach. with our “per se rule that Thus, at 43-44. we establish no the Eleventh Amend Post, applies ment never in when States act concert.” at 56 (O’Connor, J., dissenting). the fiscal re- from of the Port fiscal resources and artificial. is unrealistic sourсes of the States organiza- reasoning A charitable the mark. This misses good may in its which, work rescue or other tion undertake expect shoulder. But none the State to absence, we would example, in times of flood or famine conclude, would pub- works for the to the extent it Cross, American Red immunity.21 acquires Amendment Eleventh lic, the States’ profits surplus, proper but not on the use of focus is expenditures If the and debts. rather is on losses obligated receipts, enterprise in is the State fact exceed enterprise? resulting pay indebtedness bear and legally practically— the answer is “No”—both When not Amendment’s core concern is the Eleventh then implicated. IV Circuits, and Third it between the Second The conflict legal theory. longer emphasis, the correct no over bears swpm, prevailing view, see with the Circuits, Both in accord treasury’ identify ‘state criterion —whether 48-49, “the treasury any judgment out of the state must be satisfied —as resolving important an Eleventh the most consideration” Brief for States New Jer- issue. sey, (acknowledging, but New York et al. as Amici Curiae view). widely opposing, The intercircuit division this held persists only and Third Circuits di- thus because Second Authority’s verge answering question: Port Are the parent ibid. debts those of its States? See Port Two Third Circuit decisions issued after by public rejecting pleas PBA, both legal heighten “myster[y] It would indeed evolution” were we to spread agency an Eleventh Amendment cover over an that consumes no Borchard, wealth. See revenues but contributes to the State’s Gov Muskopf Liability Tort, 1, (1924); ernment 34 Yale L. J. see also Dist., Corning Hospital 213-216, n. 2d 55 Cal. 2d P. J.). (1961) 458-460, (Traynor, and n. 1 *19 52 compass authorities, narrow
transit indicate the of the cur split. Transp. Pa. rent Circuit Bolden v. Southeastern (1991) (in banc), Authority, denied, 2d 807 504 953 F. cert. (1992), regional au 943 the Third Circuit held transit U. S. thority from to Eleventh Amendment not entitled § “most 42 in federal court. The suit, under U. S. C. precedent, according important question,” Circuit any judgment Appeals “whether confirmed, was Court treasury.” paid 2d, 953 at 816 be from the state F. would (internal omitted). in Fitchik quotation Earlier, marks Operations, Inc., Jersey Rail 873 F. 2d New Transit (in (1989), banc), suit, an FELA denied, U. S. cert. Jersey the New Transit concluded that the Third Circuit Corporation not share the did State’s immunity. Fitchik “most Bolden, the court in called As judgment question be important” would “whether treasury.” paid 2d, at from the state F. 659. Authority
Accounting PBA in its Bolden for Port later acknowledged decision, that it had relied the Third Circuit calling primarily compact provision interstate for on the Authority were contributions unless Port revenues “‘adequate expenditures.’” Bolden, 953 to meet all compact supra, (quoting set at 2d, XV, F. article out 7). supra, however, see at 37-38 indicated, n. As earlier expense compact from the the Third Circuit drew coverage provision provision more text of far than the warrants.
[*] [*] [*] compact among A discrete created constitutional sovereigns, financially three the Port is self- generates pays sufficient; revenues, its and it it own its own Requiring debts. the Port to answer in federal injured court railroad workers who assert a federal statu- tory right, damages under the to recover FELA, does not solvency dignity touch the concerns—the States’ —that underpin judgment the Eleventh Amendment. The Hess reversed, Court of and the accordingly Appeals Walsh cases are remanded further consistent proceedings this with opinion. so
It is ordered. Stevens, Justice concurring. Ginsburg’s demonstrates thorough opinion why
Justice the Court’s answer to the this open case question presents is to I her faithful without entirely precedent. join opinion it reservation, but believe to an appropriate identify addi- tional consideration that has motivated vote. my of Court’s Eleventh
Most this Amendment jurisprudence is the of law of product judge-made unsupported by text the Constitution. The Amendment provides follows: of
“The Judicial shall United States not be to construed extend to suit law or com- any equity, menced or one of prosecuted against the United States of or by State, by Citizens another Citizens Subjects of Foreign State.” in Atascadero
As Justice Brennan his dissent explained Hospital 234, Scanlon, (1985), v. 473 U. 259-302 this S. read in light evidence, when of the historical language, understood to mean that the properly grant of diversity ju risdiction III, §2, found Article does not to extend actions See also Welch v. brought individuals States. against Dept. Highways Transp., Texas and Public U. S. of (1987) dissenting). Yet since Hans 509-516 J., (Brennan, Louisiana, 1 (1890), U. S. has Court interpreted Eleventh Amendment as broad of notions sover injecting eign into the whole of federal immunity corpus jurisdiction. The Court’s decisions givеn have us “two Eleventh Amend ments,” one narrow and textual other —not a truly constitutional doctrine at all —based on prudential considera Pennsylvania tions of v. Union and federalism. comity Co., Gas (1989) U. S. 23-29 (Stevens, J., concurring). jurispru- expansive Eleventh
This Court’s merely misguided matter of constitutional as a is not dence injustice. engine of The doctrine sover- it is also an law; scholarly subject immunity long criti- eign has been the history, throughout rightly the doctrine’s so, for cism.1 And just principle should be a that there clashed with it has g., Marbury remedy every wrong. Madison, 1 See, e. immunity inevitably Sovereign Cranch administering justice places to the individ- on a value lesser arbitrarily. government giving license act a than on ual peculiarities political Arising life in from the as it did History Eng England, Maitland, 1 F. Pollock & F. feudal (2d 1909), sovereign is a doc Law lish 515-518 ed. monarchy divinely than to better suited ordained trine Jay recognized democracy.2 as much John our Chief Justice *21 Georgia, ago. 2 Dall. two centuries See Chisholm over (1793). genesis judi Despite in the doctrine’s 419, 471-472 Legislature usually ironically has been the decisions, cial it Sovereign Scalia, fit to its that has seen curtail reach. Immunity Nonstatutory Administra Review Federal Cases, the Public-Lands tive Action: Some Conclusions from (1970). L. 68 Mich. Rev. 867-868 question my whether a view, when confronted with judge-made this character should be extended doctrine of entirely appropriate give for court to contained, it is a 1 See, g., Borchard, Tort, (1924); e. L. J. 1 Liability Government 34 Yale (1970). Davis, Immunity Go, Sovereign 22 L. The Must Admin. Rev. 383 has years, criticism not abated in but rather has focused recent on this unjustifiably interpretation Court’s an adherence to broad of the Eleventh g., Marshall, Fighting e. See, Amendment. the Words of Eleventh Amendment, (1989); Jackson, Court, Harv. L. Supreme Rev. 1342 The Amendment, the Eleventh Sovereign Immunity, State 98 Yale L. J. (1988); Amar, (1987). Federalism, Sovereignty Of L. J. 1425 Yale 2Stevens, Irrelevant?, Is Justice L. Nw. U. Rev. 1124-1125 to “establish Founders’ purpose to the weight controlling to that purpose. decision is faithful Justice.”3 Today’s Justice, whom Chief O’Connor, Justice with Thomas Scalia, join, dissenting. and Justice Justice I makes two different it, read The Court’s opinion, First, entity presumptively an interstate compact points. Amendment, under the Eleventh not entitled to immunity such entitlement “[a]s because the States surrendered any the Constitution.” of the federal prescribed part plan Ante, in concert under the Inter- When act at 41. to each other and to Clause, cede they Compact to the state Government, which, the Federal by consenting As creators. entity’s becomes one of the compact, compact over the such, lacks control meaningful each individual State court no and suits federal against entity pose entity, Ibid. Second, place affront to a State’s “dignity.” Country Estates, in Lake Inc. various factors recognized Regional Planning Agency, Tahoe (1979), 440 U. S. now substitute status, arm-of-the-state we determining may treas- criterion, of the state vulnerability single overriding If a does not fund an entity, ury. judgments against Eleventh Amend- is not within the ambit of the ment, and suits in federal court may unimpeded. proceed the state is not treasury impli- Court’s By reckoning, on it is the Eleventh Neither, follows, cated these facts. *22 Amendment.
I with both of these and with disagree propositions ultimate Elev- conclusion the Court draws from them. The Amendment, enth this interstate view, entity clothes my with from suit in federal courts. immunity People States, “We the perfect of the United in Order to form a more Union, establish Justice do ... ordain and establish this Constitution for the United States of America.” U. S. Const. Preamble.
I
Despite
yet
invitations,
several
this Court has not as
had
entity
by
occasion to find an interstate
shielded
the Eleventh
Amendment from suit in federal court. See Port
(1990)(assum-
Corp. Feeney,
Trans-Hudson
U. S.
waiver);
ing
applies,
finding
but
Lake
Country, supra (finding
entity
no reason to believe
was arm
State); Petty
Bridge
Comm’n,
v. Tennessee-Missouri
(1959)(same Feeney).
opinion,
In its conclusion, the Court attaches undue significance requirement Congress to the that consent to compacts. Admittedly, requirement interstate the consent performs important an function in our federal scheme. (1981), Cuyler Adams, 449 U. S. we observed that requirement Congress approve “‘the compact that is political judgment: agreement likely obtain its Is the to in- activity likely terfere with federal area, is it to disad- vantage important other States to an extent, is it a matter would better be left untouched state and federal ” regulation?’ Id., at quoting 440, n. 8, United States Steel
57 (1978) 485 Comm’n, 452, 434 U. S. v. Multistate Tax Corp. consent clause neither But the (White, J., dissenting). a nor makes Congress state power the nature of transforms it re in the underlying agreement; full-fledged participant the “check any infringement that Congress quires only J. Story, national of the rights government.” Commentaries (T. 1403, § 264 the United States p. on the Constitution 1873). certifies that Congress In Cooley consenting, ed. in their our federal within bоundaries acting
States are not interest offended. Once and that national scheme there is no state activity, consents to Congress cooperative does not attach. Sover immunity reason that to presume exercise all, inheres in the permissible after immunity, eign states consents], “If then the [are] congress of state power. inherent sover to their original in this restored respect limitation the sole imposed by such consent being eignty; they states as were constitution, when [leaves] given, Massachusetts, 657, 12 Island v. Pet. before . . . .” Rhode Constitutional Law Tribe, also American 725 see L. (1838); (2d 1988). § 6-33, 523 ed. p. ceded a were correct that
Even if the Court consent of their to Congress ratifying portion power follow inevitably it would not logically provision, under the Eleventh receives no immunity particular Bitzer, 427 U. S. 455- Amendment. v. Fitzpatrick (1976), portion we held that the States surrendered § to of the ratifying their sovereign authority Congress we have this, Despite consistently Fourteenth Amendment. “ intent ‘an required unequivocal expression congressional immunity to overturn the constitutionally guaranteed ” States to against several Stаtes’ before suits allowing pro- ceed Atascadero State Scan- Hospital federal court. Pennhurst lon, (1985), S. U. quoting Halderman, 465 U. School and S. Hospital that States ceded Assuming, arguendo, Congress States’ Eleventh Amendment in the abrogate *24 compact precedents realm, interstate our caution that we abrogation should be reluctant to infer in the absence of clear signals Congress was, fact, in- from that such a result presume applicability At the I least, tended. would the Eleventh Amendment to interstate entities unless Con- gress clearly expressly indicates otherwise. ignores abrogation
The Court these cases, however, in exactly opposite presumption. By favor of the Court’s reckoning, inapplicable the Eleventh Amendment is unless “good Congress affirmatively we have reason” to believe that finding immunity. concurs in a In other words, the base- immunity, line is no even if the State has structured the en- tity expectation immunity in the that will If, how- inhere. Congress contrary ever, manifests a intent, the Eleventh Amendment shields an interstate from suit in federal Congress, effectively may ap- therefore, court. dictаte the plicability of the Eleventh this context. The Congress possesses power, notion that this an extension of Country, dictum in Lake 440 S.,U. has little basis in precedents. Congress may our indeed be able to confer on the States what in fact looks a lot like Eleventh Amendment immunity; but we have never held that Eleventh Amend- immunity ment Congress. itself attaches at the whim of up analysis by observing Court shores its that each meaningful State lacks entity. to control an interstate As an important initial matter, one insight wonders how this actually given is to the opinion Court’s conclusion, that elsewhere disclaims inquiry. reliance on a control Ante, at n 47-48, any may event, that we sometimes, or even often, application in the analysis, arm-of-the-state find too atten- immunity uated a basis for presume does not mean we should immunity altogether such lacking in this context. Two sov- ereign acting together may, in most situations, be as deserving acting either apart. I see vary no analysis reason to for interstate and intrastate entities.
II wisely recognizes test set the six-factor The Court balancing ostensibly Country, supra, scheme, in Lake forth provides meager guidance the factors lower courts when from point indication directions. Without different particular weight criteria, the to ascribe this Court as to variously adding struggled, Appeals factors, have Courts of Prince, Manhattan Ports v. M/V see Puerto Rico (CA1 1990) factors), (considering dis seven 897 F. 2d Regency Regents Benning tilling Board factors, see *25 of (CA7 1991)(considering four 2d 777 Universities, 775, 928 F. compare factors), dispositive, deeming factors certain 617-618 Dist., 615, 752 F. 2d Brown East Health v. Central 1985) (CA11 determinative), treasury (finding factor state on Indian Florida Council with Tuveson v. Governor’s Af 1984) (CA11 (suggesting that Inc., 2d 732 734 F. fairs, important most cri is state courts’ characterization terion). Clothing generally State Governmental Note, Disarray Sovereign Immunity: the Eleventh Entities with Doctrine, 92 L. Rev. Amendment Arm-of-the-State Colum. (1992) responses). (summarizing diffuse 1243 light effort to focus confusion, of this the Court’s overarching principle analysis single Country is on a Lake vulnerability But its conclusion that the admirable. treasury support in our is determinative has neither precedents nor in the terms of the Eleventh Amend- literal The condition for Eleventh ment. Court takes a sufficient erroneously immunity, transforms it into a Amendment seriously nеcessary doing, In so re- condition. Court scope underpro- thus Amendment, duces of the Eleventh tecting sovereignty the state which the Eleventh Amend- at principally Aqueduct ment is Puerto Rico directed. See Eddy, Inc., and Sewer v. 506 U. S. & Metcalf (1993)(“The recognition 146 Amendment is rooted a that although States, a union, maintain certain attributes of sovereignty, including sovereign immunity”); Atascadero (“[T]he significance supra, Hospital Scanlon, at v. the fundamen- ‘lies in its affirmation
of this Amendment judi- grant sovereign principle limits tal (citation Constitution”) authority in Art. Ill’ of the cial omitted). driving of the Elev concern that the
The assertion Court’s protection ante, treasuries, see of state is enth Amendment itself. of the Amendment the text 48-49, is belied “any jurisdiction over bars federal recognized equity” against the As we States. suit in law or (1982), Cory the Eleventh White, U. S. clearly beyond “by actions extends Amendment its terms” proposition seeking money damages. a novel “It would be bar a suit to does not indeed that the Eleventh Amendment money judgment enjoin simply because no the State itself may sought.” be clear that Chisholm Id., at 90. While it (1793), gave money damages Georgia, action, Dall. impetus Constitution, it is initial to the effort to amend product equally effort, the Eleventh clear that the of that beyond facts. itself, extends far the Chisholm long Recognizing the Eleventh this, we have held that against re and state entities Amendment bars suits *26 gardless requested. Puerto Rico of the nature relief Eddy, Aqueduct Inc., and Sewer v. & Metcalf Pugh, supra, Cory, supra, 145-146; 90-91; at Alabama v. 781, 438 U. S. 782 entirely right, suggest
The Court is that the however, to immunity Eleventh Amendment confers over entities whose by taxpayer liabilities are funded If state dollars. a State damages were vulnerable at time to retroactive awards ability agenda, court, federal its to set its own to control machinery, plan its own internal and to for the future —all perquisites sovereignty grievously essential be —would impaired. quarrel many I have no at all with the cases cited by proposition entity’s the Court for the that an bills will if by clearly pre- be footed the State, the Eleventh Amendment e. Hutsell g., See, eludes the exercise of federal jurisdiction. (CA6 1993) Sayre, F. 3d (liability university In re San Juan to claim state treasury);
tantamount against Hotel Fire Plaza 2d 943-944 Dupont Litigation, F. (CA1 1989) (70-75% dollars). of funds by provided taxрayer also be
But the converse cannot true. The Eleventh Amendment does not turn a blind because the eye simply is not view, state treasury directly implicated. my is whether the State sufficient proper question possesses control over an functions entity performing governmental be called an extension of the entity may properly State itself. Such control can exist even where the State assumes no for the We have debts. liability entity’s always state respected flexibility setting up maintaining See, with state agencies charged furthering objectives. e. Farms Inc. Agnew, g., Highland Dairy, U. S. (1937) (“How be shall distributed a state by among
its is if not a governmental organs commonly, always, ques- itself”). tion for the state An on control, rather emphasis than on the state impact treasury, adequately protects while a managerial crucial check prerogatives retaining abuse. as a State’s if against So citizens suffi- long may, vote out an errant ciently aggravated, Eleventh government, remains beneficial highly provision and vindication of state breathing space sovereignty. An arm of the is State, mind, an that under- my entity tаkes state functions accountable to the politically State, extension, to the electorate. The critical in- then, should be whether and to what extent quiry, elected state exercises over the government oversight entity. If the lines of are clear and oversight substantial —for exam- if the ple, and removes an appoints entity’s governing personnel and retains veto or over an enti- approval power ty’s should be deemed an arm undertakings *27 —then of the State for Eleventh Amendment This test purposes. is elastic to sufficiently the Court’s fac- encompass treasury treasury state where the a rare case indeed It will be
tor. wrongs entity’s but fails to exercise a bill for an foots the healthy degree entity. oversight But the con- that over single goes factor in as- further than the Court’s test trol flexibility suring governments in internal critical state sovereign authority. See governance to that essential (describing structural Rev., at 1246-1252 Note, 92 Colum. L. among governments). innovations state altogether, of control dismisses consideration The Court noting over wield ultimate that States ante, 47-48, at never been accorded units that have counties, cities and County immunity. See Lincoln Eleventh Luning, criticism, based on 529, 530 This 133 U. S. “po- line-drawing problem, supposed That is off the mark. a solely the whim and behest subdivisions exist litical Feeney, Corp. State,” Port Trans-Hudson their (Brennan, concurring), does not mean J., at 313 S., 495 U. oversight governments actually exercise sufficient immunity trigger under a control- inquiry real, im- turn on centered formulation. The should potential- oversight, control and rather than on the mediate taking Virtually ity of a State action to seize reins. private, every enterprise, municipal in some flourishes sense at the behest of the But we have never found State. protections hinge the Eleventh Amendment’s on this sort The control-centered formulation necessar- abstraction. ily looks to the structure and function of state If the law. delegates oversight of an control and to munici- palities requisite under state law, state-level control is lacking, and the Eleventh Amendment does not shield the entity from suit in federal court.
Ill Turning to the case, instant I believe that sufficient indicia support finding of control exist to for the Port Authority, Jersey and hence, for the PATH. New and New *28 remove 6 of the Port Authority’s select and may York each (West § 1990); Ann. 32:1-5 N. J. Stat. 12 commissioners. 1979). §6405 Law The Gover- (McKinney N. Y. Unconsol. actions of that com- of each veto the State’s may nors (West §32:1-17 N. Y. 1990); See N. J. Stat. Ann. missioners. 1979). §6417 re- (McKinney quorum Law Unconsol. that “no action shall port authority quirements specify at which at least three unless taken at meeting be binding are unless a the members from each state present, state of the members from each at such present majority at least three of the members from but event meeting any each state shall vote favor thereof.” N. J. Stat. Ann. (West §6417 §32:1-17 Unconsol. Law 1990); (McKinney N. Y. 1979). each veto is tanta- power Governor’s Accordingly, a full veto over the actions of the Commis- mount to The Port must make annual to the sion. reports in the which in turn must legislatures, approve changes Port rules and new See N. J. Stat. Authority’s projects. (West (Mc- §32:1-8 §6408 Unconsol. Law 1990); Ann. N. Y. 1979). Each State, extension, each State’s Kinney electorate, exercises over the Port Author- authority ample list of Without forth a considerations ity. setting shopping that suffice it control that in this govern say inquiry, case, the whole is the sum of its I would hold exactly parts. the; the Eleventh Amendment shields PATH and Port from suits in federal I court. dissent. respectfully