Lead Opinion
delivered the opinion of the Court.
Thеse paired cases arise out of work-related accidents in which a locomotive engineer and a train conductor, employees of a bistate railway authorized by interstate compact, sustained.personal injuries. The courts below — the United States District Court for the District of New Jersey, and the United States Court of Appeals for the Third Circuit— rejected both complaints on the ground that the Eleventh Amendment sheltered respondent railway from suit in federal court. We granted certiorari to resolve an intercircuit conflict on this issue.
I
A
Petitioners Albert Hess and Charles F. Walsh, both railroad workers, were injured in unrelated incidents in the course of their employment by PATH. PATH, a wholly owned subsidiary of the Port Authority of New York and New Jersey (Port Authority or Authority), operates a commuter railroad connecting New York City to northern New Jersey. In separate personal injury actions commenced in the United States District Court for the District of New Jersey, petitioners sought to recover damages for PATH’S alleged negligence; both claimed a right to compensation under the federal law governing injuries to railroad workers, the Federal Employers’ Liability Act (FELA), 35 Stat. 65, as amended, 45 U. S. C. § 51 et seq.
PATH moved to dismiss each action, asserting (1) PATH’S qualification as a state agency entitled to the Eleventh Amendment immunity from suit in federal court enjoyed by New York and New Jersey,
In line with Port Authority PBA, the District Court held in the Hess and Walsh actions that PATH enjoys Eleventh Amendment immunity, and could be sued in federal court only within the 1-year time frame New York and New Jersey allowed. See Walsh,
The District Court in Hess noted an anomaly: Had Hess sued in a New Jersey or New York state court the FELA’s 3-year limitation period, not the States’ 1-year prescription, would have applied. See id., at 1183-1185, and n. 16. This followed from our reaffirmation in Hilton v. South Carolina Public Railways Comm’n,
Consolidating Hess and Walsh on appeal, the Third Circuit summarily affirmed the District Court’s judgments.
B
The Port Authority, whose Eleventh Amendment immunity is at issue in these cases, was created in 1921, when Congress, pursuant to the Constitution’s Interstate Compact Clause,
“purchase, construct, lease and/or operate any terminal or transportation facility within [the Port of New York District; and to make charges for the use thereof; and for any of such purposes to own, hold, lease and/or operate real or personal property, to borrow money and secure the same by bonds or by mortgages upon any property held or to be held by it.” N. J. Stat. Ann. § 32:1-7*36 (West 1990); accord, N. Y. Unconsol. Law § 6407 (McKinney 1979).
The Port Authority’s domain, the Port of New York District, is a defined geographic area that embraces New York Harbor, including parts of New York and New Jersey. See N. J. Stat. Ann. § 32:1-3 (West 1990); N. Y. Unconsol. Law § 6403 (McKinney 1979).
“The Port Authority was conceived as a financially independent entity, with funds primarily derived from private investors.” United States Trust Co. of N. Y. v. New Jersey,
Twelve commissioners, six selected by each State, govern the Port Authority. See N. J. Stat. Ann. §§32:1-5, 32:12-3 (West 1990); N. Y. Unconsol. Law §6405 (McKinney 1979); 1930 N. Y. Laws, ch. 422, § 6. Each State may remove, for cause, the commissioners it appoints. See N. J. Stat. Ann. §§32:1-5, 32:12-5 (West 1990); N. Y. Unconsol. Law §6405 (McKinney 1979); 1930 N. Y. Laws, ch. 422, §4. Consonant with the Authority’s geographic domain, four of New York’s six commissioners must be resident voters of New York City, and four of New Jersey’s must be resident voters of the Nеw Jersey portion of the Port of New York District. See N. J. Stat. Ann. §32:1-5 (West 1990); N. Y. Unconsol. Law §6405 (McKinney 1979). The Port Authority’s commissioners also serve as PATH’S directors. See N. J. Stat. Ann. §32:1-35.61 (West 1990); N. Y. Unconsol. Law §6612 (McKinney 1979).
Debts and other obligations of the Port Authority are not liabilities of the two founding States, and the States do not appropriate funds to the Authority. The compact and its implementing legislation bar the Port Authority from drawing on state tax revenue, pledging the credit of either State, or otherwise imposing any charge on either State. See N. J. Stat. Ann. §§32:1-8, 32:1-33 (West 1990); N. Y. Unconsol. Law §§6408, 6459 (McKinney 1979).
The States did agree to appropriаte sums to cover the Authority’s “salaries, office and other administrative expenses,” N. J. Stat. Ann. §32:1-16 (West 1990); N. Y. Unconsol. Law § 6416 (McKinney 1979), but this undertaking is notably modest.
C
The Third Circuit’s assessment of PATH’S qualification for Eleventh Amendment immunity conflicts with the judgment of the Court of Appeals for the Second Circuit on the same matter. See Feeney v. Port Authority Trans-Hudson Corporation,
“No provision [of the compact or of state legislation pursuant to the compact] commits the treasuries of the two states to satisfy judgments against the Port Authority ____ We believe that this insulation of state treasuries from the liabilities of the Port Authority outweighs both the methods of appointment and gubernatorial veto so far as the Eleventh Amendment immunity is concerned.”873 F. 2d, at 631 .
We affirmed the Second Circuit’s judgment in Feeney, but we bypassed the question whether PATH enjoyed the States’ Eleventh Amendment immunity. See Port Authority Trans-Hudson Corp. v. Feeney,
II
The Eleventh Amendment largely shields States from suit in federal court without their consent, leaving parties with claims against a State to present them, if the State permits, in the State’s own tribunals. Adoption of the Amendment responded most immediately to the States’ fears that “federal courts would force them to pay their Revolutionary War debts, leading to their financial ruin.” Pennhurst State School and Hospital v. Halderman,
“The Amendment is rooted in a recognition that the States, although a union, maintain certain attributes of sovereignty, including sovereign immunity. See Hans*40 v. Louisiana,134 U. S. 1 , 13 (1890). It thus accords the States the respect owed them as members of the federation.” Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc.,506 U. S. 139 , 146 (1993).
Bistate entities occupy a significantly different position in our federal system than do the States themselves. The States, as separate sovereigns, are the constituent elements of the Union. Bistate entities, in contrast, typically are creations of three discrete sovereigns: two States and the Federal Government.
A compact accorded congressional consent “is more than a supple device for dealing with interests confined within a region. . . . [I]t is also a means of safeguarding the national interest....” West Virginia ex rel. Dyer v. Sims,
*41 “From the point of view of geography, commerce, and enginеering, the Port of New York is an organic whole. Politically, the port is split between the law-making of two States, independent but futile in their respective spheres. The scarcity of land and mounting commerce have concentrated on the New York side of the Hudson River the bulk of the terminal facilities for foreign commerce, while it has made the Jersey side, to a substantial extent, the terminal and breaking-up yards for the east- and west-bound traffic. In addition, both sides of the Hudson are dotted with municipalities, who have sought to satisfy their interest in the general problem through a confusion of local regulations. In addition, the United States has been asserting its guardianship over interstate and foreign commerce. What in fact was one, in law was many. Plainly the situation could not be adequately dealt with except through the coordinated efforts of New York, New Jersey, and the United States. The facts presented a problem for the unified action of the law-making of these three governments, and law heeded faсts.” Frankfurter & Landis, The Compact Clause of the Constitution — A Study in Interstate Adjustments, 34 Yale L. J. 685, 697 (1925) (footnote omitted).
Suit in federal court is not an affront to the dignity of a Compact Clause entity, for the federal court, in relation to such an enterprise, is hardly the instrument of a distant, disconnected sovereign; rather, the federal court is ordained by one of the entity’s founders. Nor is the integrity of the compacting States compromised when the Compact Clause entity is sued in federal court. As part of the federal plan prescribed by the Constitution, the States agreed to the power sharing, coordination, and unified action that typify
Because Compact Clause entities owe their existence to state and federal sovereigns acting cooperatively, and not to any “one of the United States,” see supra, at 33, n. 2, their political accountability is diffuse; they lack the tight tie to the people of one State that an instrument of a single State has:
“An interstate compact, by its very nature, shifts a part of a state’s authority to another state or states, or to the agency the several states jointly create to run the compact. Such an agency under the control of special interests or gubernatorial^ appointed representatives is two or more steps removed from popular control, or even of control by a local government.” M. Ridgeway, Interstate Compacts: A Question of Federalism 300 (1971).
In sum, within any single State in our representative democracy, voters may exercise their political will to direct state policy; bistate entities created by compact, however, are not subject to the unilateral control of any one of the States that compose the federal system.
Accordingly, there is good reason not to amalgamate Compact Clause entities with agencies of “one of the United States” for Eleventh Amendment purposes. This Court so recognized in Lake Country Estates, Inc. v. Tahoe Regional Planning Agency,
Lake Country rejected a plea that the Tahoe Regional Planning Agency (TRPA), an agency created by compact to which California and Nevada were parties, acquired the immunity which the Eleventh Amendment accords to each one of TRPA’s parent States. TRPA had argued that if the Amendment shields each State, then surely it must shield an entity “so important that it could not be created by [two] States without a special Act of Congress.” Id., at 400. That “expansive reading,” we said, was not warranted, for the Amendment specifies “the State” as the entity protected:
“By its terms, the protection afforded by [the Eleventh] Amendment is only available to ‘one of the United States.’ It is true, of course, that some agencies exercising state power have been permitted to invoke the Amendment in order to protect the state treasury from liability that would have had essentially the same practical consequences as a judgment against the State itself. But the Court has consistently refused to construe the Amendment to afford protection to political subdivisions such as counties and municipalities, even though such entities exercise a ‘slice of state power.’” Id., at 400-401 (footnotes omitted).
We then set out a general approach: We would presume the Compact Clause agency does not qualify for Eleventh Amendment immunity “[u]nless there is good reason to believe that the States structured the new agency to enable it to enjoy the special constitutional protection of the States
The Court in Lake Country found “no justification for reading additional meaning into the limited language of the Amendment.” Indeed, all relevant considerations in that case weighed against TRPA’s plea. The compact called TRPA a “political subdivision,” and required that the majority of the governing members be county and city appointеes. Ibid. Obligations of TRPA, the compact directed, “shall not be binding on either State.” TRPA’s prime function, we noted, was regulation of land use, a function traditionally performed by local governments. Further, the agency’s performance of that function gave rise to the litigation. Moreover, rules made by TRPA were “not subject to veto at the state level.” Id., at 402.
This case is more complex. Indicators of immunity or the absence thereof do not, as they did in Lake Country, all point the same way. While 8 of the Port Authority’s 12 commissioners must be resident voters of either New York City or other parts of the Port of New York District,
The compact and its implementing legislation do not type the Authority as a state agency; instead they use various terms: “joint or common agency”;
Port Authority functions are not readily classified as typically state or unquestionably local. States and municipalities alike own and operate bridges, tunnels, ferries, marine terminals, airports, bus terminals, industrial parks, also commuter railroads.
Pointing away from Eleventh Amendment immunity, the States lack financial responsibility for the Port Authority. Conceived as a fiscally independent entity financed predominantly by private funds, see United States Trust Co. of N. Y. v. New Jersey,
The States, as earlier observed, bear no legal liability for Port Authority debts; they are not responsible for the payment of judgments against the Port Authority or PATH. The Third Circuit, in Port Authority PBA, assumed that, “if the Authority is ever in need,” the States would pay.
“The Port Authority is explicitly barred from pledging the credit of either state or from borrowing money in any name but its own. Even the provision for the approрriation of moneys for administrative expenses up to $100,000 per year requires prior approval by the governor of each state and an actual appropriation before obligations for such expenses may be incurred. Moreover, the phrase ‘salaries, office and other administrative expenses’ clearly limits this essentially optional obligation of the two states to a very narrow category of expenses and thus also evidences an intent to insulate the states’ treasuries from the vast bulk of the Port Authority’s operating and capital expenses, including personal injury judgments.” Feeney,873 F. 2d, at 631 .18
When indicators of immunity point in different directions, the Eleventh Amendment’s twin reasons for being remain our prime guide. See supra, at 39-40. We have already pointed out that federal courts are not alien to a bistate entity Congress participated in creating. Nor is it disrespectful to one State to call upon the Compact Clause entity to answer complaints in federal court. See supra, at 41-43. Sеeing no genuine threat to the dignity of New York or New Jersey in allowing Hess and Walsh to pursue FELA claims against PATH in federal court, we ask, as Lake Country instructed, whether there is here “good reason to believe” the States and Congress designed the Port Authority to enjoy Eleventh Amendment immunity.
PATH urges that we find good reason to classify the Port Authority as a state agency for Eleventh Amendment purposes based on the control New York and New Jersey wield over the Authority. The States appoint and can remove the commissioners, the Governors can veto Port Authority actions, and the States’ legislatures can determine the projects the Port Authority undertakes. See supra, at 36-37. But ultimate control of every state-created entity resides with the State, for the State may destroy or reshape any unit it creates. “[Political subdivisions exist solely at the whim and behest of their State,” Feeney,
Moreover, rendering control dispositive does not home in on the impetus for the Eleventh Amendment: the prevention of federal-court judgments that must be paid out of a State’s treasury. See Fletcher, A Historical Interpretation of the Eleventh Amendment, 35 Stan. L. Rev. 1033, 1129 (1983) (identifying “the award of money judgments against the states” as “the traditional core of eleventh amendment protection”).
The Port Authority’s anticipated and actual financial independence — its long history of paying its own way, see supra, at 37-38, and n. 7, 45-46— contrasts with the situation of transit facilities that place heavy fiscal tolls on their founding States. In Alaska Cargo Transport, Inc. v. Alaska R. Corp.,
PATH maintains that the Port Authority’s private funding and financial independence should be assessed differently. Operating profitably, the Port Authority dedicates at least some of its surplus to public projects which the States themselves might otherwise finance. As an example, PATH notes a program under which the Port Authority purchases buses and then leases or transfers them without charge to public and private transportation entities in both States. See N. J. Stat. Ann. §§32:2-23.27 to 32:2-23.42 (West 1990); N. Y. Unconsol. Laws §§7201-7217 (McKinney Supp. 1994); 1993 Annual Financial Report 66. A judgment against the Port Authority, PATH contends, by reducing the Authority’s surplus available to fund such projects, produces an effect equivalent to the impact of a judgment directly against the State. It follows, PATH suggests, that distinguishing the
This reasoning misses the mark. A charitable organization may undertake rescue or other good work which, in its absence, we would expect the State to shoulder. But none would conclude, for example, that in times of flood or famine the American Red Cross, to the extent it works for the public, acquires the States’ Eleventh Amendment immunity.
IV
The conflict between the Second and Third Circuits, it bears emphasis, is no longer over the correct legal theory. Both Circuits, in accord with the prevailing view, see swpm, at 48-49, identify “the ‘state treasury’ criterion — whether any judgment must be satisfied out of the state treasury — as the most important consideration” in resolving an Eleventh Amendment immunity issue. Brief for States of New Jersey, New York et al. as Amici Curiae 2 (acknowledging, but opposing, this widely held view). The intercircuit division thus persists only because the Second and Third Circuits diverge in answering the question: Are the Port Authority’s debts those of its parent States? See ibid.
Two Third Circuit decisions issued after Port Authority PBA, both rejecting Eleventh Amendment pleas by public
Accounting for Port Authority PBA in its later Bolden decision, the Third Circuit acknowledged that it had relied primarily on the interstate compact provision calling for state contributions unless Port Authority revenues were “‘adequate to meet all expenditures.’” See Bolden,
* * *
A discrete entity created by constitutional compact among three sovereigns, the Port Authority is financially self-sufficient; it generates its own revenues, and it pays its own debts. Requiring the Port Authority to answer in federal court to injured railroad workers who assert a federal statutory right, under the FELA, to recover damages does not touch the concerns — the States’ solvency and dignity — that underpin the Eleventh Amendment. The judgment of the
It is so ordered.
Notes
Hess additionally invoked the Boiler Inspection Act, ch. 103, 36 Stat. 913, as amended, 45 U. S. C. § 22 et seq., as a basis for his claim for damages.
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.”
The court referred to the Port Authority of New York and New Jersey Comprehensive Annual Financial Report 42-44 (1985), which shows that the Authority’s General Reserve Fund had a balance of over $271 million at the end of 1985.
Article I, § 10, cl. 3, of the Constitution provides:
“No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.”
See also N. J. Stat. Ann. § 32:2 — 23.28(j) (West 1990) (defining larger area in which Port Authority has obligation to supply commuter buses to authorized operators); N. Y. Unconsol. Law §7202(10) (McKinney Supp. 1994) (same).
At the end of 1993, the Port Authority hаd over $2.8 billion in net assets and $534 million in its General Reserve Fund. See Port Authority of New York and New Jersey, Comprehensive Annual Financial Report 49, 64 (1993) (hereinafter 1993 Annual Financial Report).
Compact article XV, the provision for expense coverage, reads in full:
“Unless and until the revenues from operations conducted by the [P]ort [Authority are adequate to meet all expenditures, the legislatures of the two states shall appropriate, in equal amounts, annually, for the salaries, office and other administrative expenses, such sum or sums as shall be recommended by the [P]ort [A]uthority and approved by the governors of the two states, but each state obligates itself hereunder only to the extent of one hundred thousand dollars in any one year.” N. J. Stat. Ann. §32:1-16 (West 1990); N. Y. Unconsol. Law §6416 (McKinney 1979).
Our assumption was in accord with prior state and federal decisions typing the Port Authority a state arm or agency. See, e. g., Howell v. Port of New York Authority,
As Chief Justice John Marshall recounted: “[A]t the adoption of the [C]onstitution, all the States were greatly indebtеd; and the apprehension that these debts might be prosecuted in the federal Courts” prompted swift passage of the Eleventh Amendment. Cohens v. Virginia,
If the creation of a bistate entity does not implicate federal concerns, however, federal consent is not required. See Virginia v. Tennessee,
See Port Authority Trans-Hudson Corp. v. Feeney,
Petty v. Tennessee-Missouri Bridge Comm’n,
Cf. Farias v. Bexar Cty. Bd. of Trustees for Mental Health Mental Retardation Servs.,
N. J. Stat. Ann. §32:1-1 (West 1990); N. Y. Unconsol. Law §6401 (McKinney 1979).
N. J. Stat. Ann. § 32:1-4 (West 1990); N. Y. Unconsol. Law § 6404 (McKinney 1979); accord, N. J. Stat. Ann. §32:1-7 (West 1990); N. Y. Unconsol. Law §6407 (McKinney 1979).
N. J. Stat. Ann. §32:1-33 (West 1990); N. Y. Unconsol. Law §6459 (McKinney 1979).
Other Authority facilities, such as the World Trade Center, an office complex housing numerous private tenants, see 1993 Annual Financial Report 33-35, and the Teleport, a satellite communications center, see id,., at 30, are not typically operated by either States or municipalities.
Concerning the Third Circuit’s decision in Port Authority PBA, the Second Circuit said:
“That decision ... was based on the Third Circuit’s understanding that, in the event that ‘a judgment were entered against the Authority that was serious enough to deplete its resources, the Authority would be able to go to the state legislatures in order to recoup the amount needed for its operating expenses.’ To the extent that this statement implies that the states must make such an appropriation, it appears to be in error.” Feeney,873 F. 2d, at 632 (quoting Port Authority PBA,819 F. 2d, at 416 ).
The dissent questions whether the driving concern of the Eleventh Amendment is the protection of state treasuries, emphasizing that the Amendment covers “any suit in law or equity.” Post, at 60. The suggestion that suits in equity do not drain money as frightfully as actions at law, however, is belied by the paradigm case. See Jarndyce and Jarndyce (Charles Dickens, Bleak House (1853)).
The decision in Morris is compatible with our approach. See supra, at 43-44. Thus, we establish no “per se rule that the Eleventh Amendment never applies when States act in concert.” Post, at 56 (O’Connor, J., dissenting).
It would indeed heighten a “myster[y] of legal evolution” were we to spread an Eleventh Amendment cover over an agency that consumes no state revenues but contributes to the State’s wealth. See Borchard, Government Liability in Tort, 34 Yale L. J. 1, 4 (1924); see also Muskopf v. Corning Hospital Dist.,
Concurrence Opinion
concurring.
Justice Ginsburg’s thorough opinion demonstrates why the Court’s answer to the open question this case presents is entirely faithful to precedent. I join her opinion without reservation, but believe it appropriate to identify an additional consideration that has motivated my vote.
Most of this Court’s Eleventh Amendment jurisprudence is the product of judge-made law unsupported by the text of the Constitution. The Amendment provides as follows:
“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.”
As Justice Brennan explained in his dissent in Atascadero State Hospital v. Scanlon,
Arising as it did from the peculiarities of political life in feudal England, 1 F. Pollock & F. Maitland, History of English Law 515-518 (2d ed. 1909), sovereign immunity is a doctrine better suited to a divinely ordained monarchy than to our democracy.
In my view, when confronted with the question whether a judge-made doctrine of this character should be extended or contained, it is entirely appropriate for a court to give
dissenting.
The Court’s opinion, as I read it, makes two different points. First, an interstate compact entity is presumptively not entitled to immunity under the Eleventh Amendment, because the States surrendered any such entitlement “[a]s part of the federal plan prescribed by the Constitution.” Ante, at 41. When States act in concert under the Interstate Compact Clause, they cede power to each other and to the Federal Government, which, by consenting to the state compact, becomes one of the compact entity’s creators. As such, each individual State lacks meaningful control over the entity, and suits against the entity in federal court pose no affront to a State’s “dignity.” Ibid. Second, in place of the various factors recognized in Lake Country Estates, Inc. v. Tahoe Regional Planning Agency,
I disagree with both of these propositions and with the ultimate conclusion the Court draws from them. The Eleventh Amendment, in my view, clothes this interstate entity with immunity from suit in federal courts.
Despite several invitations, this Court has not as yet had occasion to find an interstate entity shielded by the Eleventh Amendment from suit in federal court. See Port Authority Trans-Hudson Corp. v. Feeney,
In reaching its conclusion, the Court attaches undue significance to the requirement that Congress consent to interstate compacts. Admittedly, the consent requirement performs an important function in our federal scheme. In Cuyler v. Adams,
Even if the Court were correct that the States ceded a portion of their power to Congress in ratifying the consent provision, it would not logically or inevitably follow that any particular entity receives no immunity under the Eleventh Amendment. In Fitzpatrick v. Bitzer,
The Court ignores these abrogation cases, however, in favor of exactly the opposite presumption. By the Court’s reckoning, the Eleventh Amendment is inapplicable unless we have “good reason” to believe that Congress affirmatively concurs in a finding of immunity. In other words, the baseline is no immunity, even if the State has structured the entity in the expectation that immunity will inhere. If, however, Congress manifests a contrary intent, the Eleventh Amendment shields an interstatе entity from suit in federal court. Congress, therefore, effectively may dictate the applicability of the Eleventh Amendment in this context. The notion that Congress possesses this power, an extension of dictum in Lake Country,
The Court shores up its analysis by observing that each State lacks meaningful power to control an interstate entity. As an initial matter, one wonders how important this insight actually is to the Court’s conclusion, given that the opinion elsewhere disclaims reliance on a control inquiry. Ante, at 47-48, ■ In any event, that we may sometimes, or even often, in the application of arm-of-the-state analysis, find too attenuated a basis for immunity does not mean we should presume such immunity altogether lacking in this context. Two sovereign States acting together may, in most situations, be as deserving of immunity as either State acting apart. I see nо reason to vary the analysis for interstate and intrastate entities.
The Court wisely recognizes that the six-factor test set forth in Lake Country, supra, ostensibly a balancing scheme, provides meager guidance for lower courts when the factors point in different directions. Without any indication from this Court as to the weight to ascribe particular criteria, the Courts of Appeals have struggled, variously adding factors, see Puerto Rico Ports Authority v. M/V Manhattan Prince,
In light of this confusion, the Court’s effort to focus the Lake Country analysis on a single overarching principle is admirable. But its conclusion that the vulnerability of the state treasury is determinative has support neither in our precedents nor in the literal terms of the Eleventh Amendment. The Court takes a sufficient condition for Eleventh Amendment immunity, and erroneously transforms it into a necessary condition. In so doing, the Court seriously reduces the scope of the Eleventh Amendment, thus underpro-tecting the state sovereignty at which the Eleventh Amendment is principally directed. See Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc.,
The Court’s assertion that the driving concern of the Eleventh Amendment is protection of state treasuries, see ante, at 48-49, is belied by the text of the Amendment itself. The Eleventh Amendment bars federal jurisdiction over “any suit in law or equity” against the States. As we recognized in Cory v. White,
The Court is entirely right, however, to suggest that the Eleventh Amendment confers immunity over entities whose liabilities are funded by state taxpayer dollars. If a State were vulnerable at any time to retroactive damages awards in federal court, its ability to set its own agenda, to control its own internal machinery, and to plan for the future — all essential perquisites of sovereignty — would be grievously impaired. I have no quarrel at all with the many cases cited by the Court for the proposition that if an entity’s bills will be footed by the State, the Eleventh Amendment clearly pre-
But the converse cannot also be true. The Eleventh Amendment does not turn a blind eye simply because the state treasury is not directly implicated. In my view, the proper question is whether the State possesses sufficient control over an entity performing governmental functions that the entity may properly be called an extension of the State itself. Such control can exist even where the State assumes no liability for the entity’s debts. We have always respected state flexibility in setting up and maintaining agencies charged with furthering state objectives. See, e. g., Highland Farms Dairy, Inc. v. Agnew,
An arm of the State, to my mind, is an entity that undertakes state functiоns and is politically accountable to the State, and by extension, to the electorate. The critical inquiry, then, should be whether and to what extent the elected state government exercises oversight over the entity. If the lines of oversight are clear and substantial — for example, if the State appoints and removes an entity’s governing personnel and retains veto or approval power over an entity’s undertakings — then the entity should be deemed an arm of the State for Eleventh Amendment purposes. This test is sufficiently elastic to encompass the Court’s treasury fac
The Court dismisses consideration of control altogether, ante, at 47-48, noting that States wield ultimate pоwer over cities and counties, units that have never been accorded Eleventh Amendment immunity. See Lincoln County v. Luning,
Ill
Turning to the instant case, I believe that sufficient indicia of control exist to support a finding of immunity for the Port Authority, and hence, for the PATH. New Jersey and New
See, e. g., Borchard, Government Liability in Tort, 34 Yale L. J. 1 (1924); Davis, Sovereign Immunity Must Go, 22 Admin. L. Rev. 383 (1970). The criticism has not abated in recent years, but rather has focused on this Court’s adherence to an unjustifiably broad interpretation of the Eleventh Amendment. See, e. g., Marshall, Fighting the Words of the Eleventh Amendment, 102 Harv. L. Rev. 1342 (1989); Jackson, The Supreme Court, the Eleventh Amendment, and State Sovereign Immunity, 98 Yale L. J. 1 (1988); Amar, Of Sovereignty and Federalism, 96 Yale L. J. 1425 (1987).
Stevens, Is Justice Irrelevant?, 87 Nw. U. L. Rev. 1121, 1124-1125 (1993).
“We the People of the United States, in Order to form a more perfect Union, establish Justice ... do ordain and establish this Constitution for the United States of America.” U. S. Const. Preamble.