Eleventh Amendment Issues for Interstate Commissions
The Eleventh Amendment guarantees state sovereign immunity from suit in federal court. The Eleventh Amendment ensures that states retain certain attributes of sovereignty, including sovereign immunity. Hans v. Louisiana, 134 U.S. 1, 13 (1890). Over the years, the U.S. Supreme Court has established a clear approach to determining whether an interstate commission is a “state” or political subdivision thereof such that it enjoys immunity under the Eleventh Amendment and, if so, then whether the states waived immunity in the compact. The application of the Eleventh Amendment immunity to interstate commissions is now well-established.
In Petty v. Tennessee-Missouri Bridge Commission, the Supreme Court concluded that the text of the compact stating that the Bridge Commission should have the power “to contract, to sue and be sued in its own name,” and Congress’s grant of consent to the compact, stating “that nothing herein contained shall be construed to affect, impair, or diminish any right, power, or jurisdiction of the United States or of any court, department, board, bureau, officer, or official of the United States, over or in regard to any navigable waters . . . ” effectively abrogated the states’ Eleventh Amendment immunity by reserving the jurisdiction of the federal courts. 359 U.S. 275, 277 (1959).
In Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, the Supreme Court analyzed the interstate commission’s claim of immunity in accord with its prior jurisprudence for determining when a non-state entity exercising a state power enjoys Eleventh Amendment immunity. 440 U.S. 391, 400-02 (1979). The Court considered whether the states describe and treat the non-state entity like a state agency, the level of state control over the entity, and whether the states’ budgets are the entity’s source of funding. Id. at 401. The Court concluded that the interstate commission enjoyed the states’ Eleventh Amendment immunity, noting that the Tahoe Regional Planning Compact described the interstate commission as a “separate legal entity” and a “political subdivision”; six of the ten board members of the commission were appointed by cities and counties and only four were appointed by the states; and the compact stated that obligations of the commission were not binding on either state, hence the states’ treasuries were not directly responsible for judgments against the commission. Id.
No case, however, has raised the application of the Eleventh Amendment to states applying the ICJ. Even if the Eleventh Amendment does not offer protection, the commission may be immune from suit governed by non-Eleventh Amendment considerations. For example, in Morris v. Washington Metropolitan Area Transit Authority, the court concluded that a bare “sue and be sued” clause extends only as far as other more specific partial waivers in the compact, not to any and all suits. 781 F.2d 218, 221 n.3 (D.C. Cir. 1986). Chapter 6 discusses immunity issues associated with application of the ICJ.