Interstate Compacts and the Eleventh Amendment

This article previews the issues and arguments in Port Authority Trans-Hudson Corp. v. Feeney, on the Supreme Court’s 1989-90 appellate docket. Simply put, the question is whether the Port Authority of New York and New Jersey is entitled to sovereign immunity in federal court under the Eleventh Amendment. When states get together and create something by interstate compact, is that thing entitled to the same Eleventh Amendment immunity as the individual states? The Supreme Court must now determine what the Port Authority is. Is it like a state? Is it like a state agency? Is it like a city, municipality, or corporation? Many a forest has been sacrificed to Eleventh Amendment jurisprudence, with grist for the scholarly mills obligingly supplied by the Supreme Court. Last term alone, in a blossom of June activity, the Supreme Court issued five Eleventh Amendment decisions: Hoffman v. Connecticut Department of Income Maintenance, 109 S.Ct. 2818 (1989); Missouri v. Jenkins, 109 S.Ct. 2463 (1989); Pennsylvania v Union Gas Company, 109 S.Ct. 2273 (1989); Will v. Michigan Department of State Police, 109 S.Ct. 2304 (1989); and Dellmuth v. Muth, 109 S.Ct. 2397 (1989). The Supreme Court this term irresistibly will again venture into an interesting but nonetheless nit-picky corner of the Eleventh Amendment.Unless the Court this term desires to articulate a new Eleventh Amendment jurisprudence for interstate compact cases, Port Authority v. Feeney is likely to be decided based on the factors enumerated in Lake Country Estates. When the Third Circuit considered the status of the Port Authority, it delineated six crucial questions arising from Lake Country Estates: (1) How is the agency characterized by the language of the creating statutes? (2) From what governmental entity does the agency derive its funding? (3) Is the state financially responsible for the liabilities and obligations incurred by the agency? (4) Are the officers or members of the agency appointed by the state, or by county or municipal government? (5) Is the function performed by the agency traditionally state or municipal? And (6) Are the actions of the agency subject to the state government's veto? When the that the Port Authority was an arm of the compacting states entitled to Eleventh Amendment immunity, rather than a body comparable to a county or municipality not entitled to Eleventh Amendment immunity The Second Circuit in Port Authority v. Feeney, applying the same test, came to the opposite conclusion on the facts. Sorting out the facts is now the task for the Supreme Court.Concerning the issue of waiver of immunity, the Supreme Court must construe two provisions of New York and New Jersey law which provide that the states consent to suits "of any form or nature at law, in equity or otherwise" against the Port Authority, provided that the suit is being brought "within a county or judicial district, established by one of said states or the United States." The issue for the Court will be whether this language implies an express, implied, or partial consent to lawsuit, and whether it meets the stringent test for immunity waiver repeatedly required by the Court. In light of last term's rulings on Eleventh Amendment waiver, the Court is not likely to look to legislative history to discern the intent of New York and New Jersey. More probable, the Court will discern the plain meaning of the statute with regard to consent.