Amicus Curiae Brief — Cedric Galette, Petitioner v. New Jersey Transit Corporation

Supreme Court briefSep 10, 2025

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Nos. 24-1021 & 24-1113

In the Supreme Court of the United States

CEDRIC GALETTE, PETITIONER,

v.

NEW JERSEY TRANSIT CORP., ET AL.

NEW JERSEY TRANSIT CORP., ET AL., PETITIONERS,

v.

JEFFREY COLT AND BETSY TSAI

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF PENNSYLVANIA AND THE

NEW YORK COURT OF APPEALS

BRIEF OF AMICI CURIAE

THE STATE OF MISSOURI AND

HIGHER EDUCATION LOAN AUTHORITY

OF THE STATE OF MISSOURI

SUPPORTING NEW JERSEY TRANSIT CORP.

Catherine L. Hanaway

Attorney General

Louis J. Capozzi III

Solicitor General

MISSOURI ATTORNEY

GENERAL’S OFFICE

207 W. High Street

Jefferson City, MO 65102

Counsel for Amici Curiae

The State of Missouri &

Higher Education Loan

Authority of the State of

Missouri

September 10, 2025

Daniel J. Feith

Counsel of Record

Kathleen M. Mueller

Peter A. Bruland

SIDLEY AUSTIN LLP

1501 K Street, NW

Washington, DC 20005

(202) 736-8000

dfeith@sidley.com

Counsel for Amicus

Curiae Higher Education Loan Authority of

the State of Missouri

i

TABLE OF CONTENTS

Page

Table of authorities...................................................... ii

Interest of amici curiae ............................................... 1

Summary of argument................................................. 3

Argument ..................................................................... 5

I. Arm-of-the-state analysis should respect

States’ autonomy to define new functions for

State governments and to perform those

functions through instrumentalities. .................... 5

A. States enjoy autonomy to perform a wide

range of important functions through

instrumentalities. ............................................. 5

B. This Court has repeatedly abandoned

efforts to distinguish traditional and

nontraditional State functions, and it

should shun such an approach here. ................ 9

II. Arm-of-the-state analysis should respect a

State’s sovereign right to determine how to

structure its government to perform its

sovereign functions. .............................................. 13

III. A State instrumentality can be an arm of the

State even if the State has not agreed to be

liable for judgments against the entity. .............. 21

Conclusion .................................................................. 26

ii

TABLE OF AUTHORITIES

CASES

Page(s)

Albrecht v. Comm. on Emp. Benefits,

357 F. 3d 62 (CADC 2004) ........................ 17, 18

Alden v. Maine,

527 U.S. 706 (1999) ............................... 3, 21, 25

Arkansas v. Texas,

346 U.S. 368 (1953) ........................................... 7

Biden v. Nebraska,

600 U.S. 477 (2023) ............... 1, 9, 16, 18, 22, 25

Brush v. Comm’r,

300 U.S. 352 (1937) ......................................... 10

Carlotta v. Higher Educ. Loan Auth.,

2025 WL 905628 (S.D. Ohio Mar. 25,

2025) .................................................................. 2

Collector v. Day,

78 U.S. (11 Wall.) 113 (1870) ...................... 9, 10

Coll. Savs. Bank v. Fla. Prepaid

Postsecondary Educ. Expense Bd.,

527 U.S. 666 (1999) ......................................... 20

Conn. Light & Power Co. v. Fed. Power

Comm’n,

324 U.S. 515 (1945) ........................................... 6

Dreyer v. Illinois,

187 U.S. 71 (1902) ........................................... 17

Fed. Mar. Comm’n v. S.C. State Ports Auth.,

535 U.S. 743 (2002) ....................... 2, 3, 5, 13, 22

Flint v. Stone Tracy Co.,

220 U.S. 107 (1911) ......................................... 10

iii

TABLE OF AUTHORITIES – continued

Page(s)

Franchise Tax Bd. v. Hyatt,

587 U.S. 230 (2019) ......................................... 21

Franchise Tax Bd. v. U.S. Postal Serv.,

467 U.S. 512 (1984) ......................................... 20

Garcia v. San Antonio Metro. Transit Auth.,

469 U.S. 528 (1985) ............. 5, 6, 7, 9, 11, 12, 13

Good v. Dep’t of Educ.,

121 F.4th 772 (2024), pet. for cert.

pending, No. 24-992 ............................ 15, 16, 18

Gregory v. Ashcroft,

501 U.S. 452 (1991) ......................................... 13

Head v. Curators,

47 Mo. 220 (1871) .............................................. 7

Head v. Univ. of Mo.,

86 U.S. 526 (1873) ............................................. 7

Helvering v. Gerhardt,

304 U.S. 405 (1938) ........................................... 7

Hess v. Port Auth. Trans-Hudson Corp.,

513 U.S. 30 (1994) ......................................... 3, 5

Higher Educ. Loan Auth. of Mo. v. Good,

No. 24-992 (U.S. Mar. 12, 2025) ....................... 2

Highland Farms Dairy, Inc. v. Agnew,

300 U.S. 608 (1937) ......................................... 14

Inland Waterways Corp. v. Young,

309 U.S. 517 (1940) ......................................... 19

Knox v. Serv. Emps. Int’l Union,

567 U.S. 298 (2012) ......................................... 25

Kohn v. State Bar of Cal.,

87 F.4th 1021 (CA9 2023) ........................... 3, 18

iv

TABLE OF AUTHORITIES – continued

Page(s)

Lake Country Ests., Inc. v. Tahoe Reg’l

Planning Agency,

440 U.S. 391 (1979) ........................................... 3

Lebron v. Nat’l R.R. Passenger Corp.,

513 U.S. 374 (1995) ......................................... 12

Loeffler v. Frank,

486 U.S. 549 (1988) ......................................... 20

M’Culloch v. Maryland,

17 U.S. (4 Wheat.) 316 (1819) ........................... 6

Mancuso v. N.Y. State Thruway Auth.,

86 F.3d 289 (CA2 1996)..................................... 3

MCI Telecomms. Corp. v. AT&T Co.,

512 U.S. 218 (1994) ......................................... 12

Mt. Healthy City Bd. of Educ. v. Doyle,

429 U.S. 274 (1977) ........................................... 3

Nat’l League of Cities v. Usery,

426 U.S. 833 (1976) ......................................... 11

Nebbia v. New York,

291 U.S. 502 (1934) ........................................... 6

New State Ice Co. v. Liebmann,

285 U.S. 262 (1932) ......................................... 14

New York v. United States,

326 U.S. 572 (1946) ........................... 4, 9, 10, 11

Oregon v. Ice,

555 U.S. 160 (2009) ......................................... 14

Pellegrino v. Equifax Info. Servs., LLC,

709 F. Supp. 3d 206 (E.D. Va. 2024) ................ 2

P.R. Ports Auth. v. Fed. Mar. Comm’n,

531 F.3d 868 (CADC 2008) ..................... 5, 8, 18

v

TABLE OF AUTHORITIES – continued

Page(s)

Seminole Tribe of Fla. v. Florida,

517 U.S. 44 (1996) ........................................... 21

South Carolina v. United States,

199 U.S. 437 (1905) ......................................... 10

Sweezey v. New Hampshire,

354 U.S. 234 (1957) ......................................... 14

Todd v. Curators of Univ. of Mo.,

147 S.W.2d 1063 (Mo. 1941) ............................. 9

U.S. Postal Serv. v. Flamingo Indus. (USA)

Ltd.,

540 U.S. 736 (2004) ................................... 19, 20

U.S. Term Limits, Inc. v. Thornton,

514 U.S. 779 (1995) ........................................... 6

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. X ........................................... 6

U.S. Const. art. IV, § 4 ....................................... 13

STATUTES AND REGULATIONS

12 U.S.C. § 242 ................................................... 17

12 U.S.C. § 244 ................................................... 17

12 U.S.C. § 248(l)................................................ 17

16 U.S.C. § 831i .................................................. 12

39 U.S.C. § 202 ................................................... 19

39 U.S.C. § 401(1) ............................................... 20

40 U.S.C. § 581(h)............................................... 12

Mo. Rev. Stat. § 173.232 .................................... 23

Mo. Rev. Stat. § 173.360 ............................ 1, 9, 24

vi

TABLE OF AUTHORITIES – continued

Page(s)

Mo. Rev. Stat. § 173.365 ...................................... 1

Mo. Rev. Stat. § 173.385 .................... 1, 22, 23, 24

Mo. Rev. Stat. § 173.392 .................................... 23

Mo. Rev. Stat. § 173.415 ...................................... 1

Mo. Rev. Stat. § 173.445 ...................................... 1

P.R. Laws Ann. Tit. 23, § 336 .............................. 8

32 C.F.R. § 383a.3(a)(1)...................................... 12

SCHOLARLY AUTHORITIES

Jerry Mitchell, Policy Functions and Issues

for Public Authorities, in Public

Authorities and Public Policy 3 (Jerry

Mitchell, ed. 1992) ............................................. 8

Alex E. Rogers, Clothing State

Governmental Entities with Sovereign

Immunity: Disarray in the Eleventh

Amendment Arm-of-the-State Doctrine,

92 Colum. L. Rev. 1243 (1992)................ 7, 8, 17

Jeffrey S. Sutton, Administrative Law in

the States: An Introduction to the

Symposium, 46 Harv. J. L. & Pub. Pol’y

307 (2023) ........................................................ 14

Jeffrey S. Sutton, 21st Century Federalism:

A View from the States,

46 Harv. J. L. & Pub. Pol’y 31 (2023) ............. 15

OTHER AUTHORITIES

The Federalist No. 39 (James Madison).............. 6

The Federalist No. 45 (James Madison).............. 5

vii

TABLE OF AUTHORITIES – continued

Page(s)

The Federalist No. 81 (Alexander

Hamilton) ........................................................ 21

GSA, Outleasing ................................................. 12

MOEHLA to Provide $30M in Scholarships,

Columbia Daily Tribune (June 11, 2011) ....... 23

Mo. Scholarship & Loan Found., About Us ....... 24

S.B. 68, 103d Gen. Assemb., 1st Reg. Sess.

(Mo. 2025) ........................................................ 23

Univ. of Mo., MU Analytics .................................. 7

1

INTEREST OF AMICI CURIAE∗

The Higher Education Loan Authority of the State of

Missouri (MOHELA) is a government corporation established by the Missouri General Assembly to perform “essential public function[s],” including assuring

that all eligible postsecondary education students

have access to student loans and creating financial-aid

programs that provide grants and scholarships to students. Mo. Rev. Stat. §§ 173.360, 173.415, 173.385(19).

As this Court has recognized, MOHELA is “[b]y law

and function” an “instrumentality of Missouri.” Biden

v. Nebraska, 600 U.S. 477, 491 (2023); see Mo. Rev.

Stat. § 173.415 (describing MOHELA as a “public instrumentality of the state”). It is run by a board comprising “two state officials and five members appointed

by the Governor and confirmed by the [Missouri] Senate,” all of whom the Governor may remove for cause.

Biden, 600 U.S., at 490 (citing Mo. Rev. Stat.

§ 173.360). It is “assigned” to the Missouri Department

of Higher Education and Workforce Development, to

which it must provide annual reports of its income, expenditures, and indebtedness. Mo. Rev. Stat.

§ 173.445. It is subject to Missouri open-meeting laws

and must “comply with all statutory requirements respecting the conduct of public business by a public

agency.” Id., § 173.365. And “[i]ts profits help fund education in Missouri: MOHELA has provided $230 million for development projects at Missouri colleges and

universities and almost $300 million in grants and

scholarships for Missouri students.” Biden, 600 U.S.,

at 490.

No counsel for any party authored this brief in whole or in

part, and no person or entity aside from amici and their counsel

funded the brief’s preparation or submission.

∗

2

MOHELA is currently subject to lawsuits for damages in several federal districts. Because “[b]y law and

function, MOHELA is an instrumentality of Missouri,”

and any “harm to MOHELA is also a harm to Missouri,” id., at 491, Missouri and MOHELA have a significant interest in how this Court determines whether

an entity is an arm of the state for purposes of sovereign immunity. To date, courts have divided over

whether MOHELA is an arm of Missouri. Compare,

e.g., Carlotta v. Higher Educ. Loan Auth., 2025 WL

905628, at *6 (S.D. Ohio Mar. 25, 2025) (concluding

MOHELA is an arm of Missouri), with Pellegrino v.

Equifax Info. Servs., LLC, 709 F. Supp. 3d 206, 219

(E.D. Va. 2024) (concluding it is not). In connection

with these consolidated cases, this Court is currently

holding a petition for certiorari filed by MOHELA

seeking review of a decision by the U.S. Court of Appeals for the Tenth Circuit denying MOHELA sovereign immunity on the ground that it is not an arm of

the state. See Higher Educ. Loan Auth. of Mo. v. Good,

No. 24-992 (U.S. Mar. 12, 2025).

The State of Missouri and MOHELA file this brief to

explain the importance of formulating and applying

the arm-of-the-state test in a manner that protects

States’ ability to structure their governments as they

believe best enables them to pursue their public-policy

goals. Such an approach is essential to ensuring that

private lawsuits do not interfere with the ability of instrumentalities to perform the public functions for

which States created them, and ultimately to protecting States’ sovereign dignity—the “preeminent purpose” of state sovereign immunity. Fed. Mar. Comm’n

v. S.C. State Ports Auth., 535 U.S. 743, 760 (2002).

3

SUMMARY OF ARGUMENT

This Court has considered whether an entity is an

arm of the state for purposes of sovereign immunity on

several occasions. See Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30 (1994); Lake Country Ests., Inc.

v. Tahoe Reg’l Planning Agency, 440 U.S. 391 (1979);

Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274

(1977). Yet there remains “no standard test” for making this determination, Kohn v. State Bar of Cal., 87

F.4th 1021, 1026 (CA9 2023) (en banc), and the “jurisprudence over how to apply the arm-of-the-state doctrine is, at best, confused,” Mancuso v. N.Y. State

Thruway Auth., 86 F.3d 289, 293 (CA2 1996).

The instant cases present an opportunity for the

Court to dispel this confusion and ensure the arm-ofthe-state analysis “accord[s] the States the respect

owed them as joint sovereigns”—the “central purpose”

of state sovereign immunity. Fed. Mar. Comm’n, 535

U.S. at 765 (cleaned up). As the New Jersey Transit

(NJ Transit) Petitioners explain in their brief, the

Court principally considers three factors to determine

whether an entity is an arm of the State: (1) the textual and structural evidence that bears on the State’s

intent to structure the entity as one of its arms; (2) the

control the State exercises over the entity; and (3) the

State’s overall financial relationship with the entity.

Petrs. Br. 2. In analyzing and applying these factors,

this Court should ensure that the arm-of-the-state test

protects States’ sovereign rights to define their own

public policies, to structure their governments as they

believe appropriate to pursue those policies, and to do

so free from “the mandates of judicial tribunals without their consent, and in favor of individual interests.”

Alden v. Maine, 527 U.S. 706, 750 (1999) (cleaned up).

First, in evaluating New Jersey’s intent to structure

NJ Transit to share its sovereignty, the Court should

4

respect States’ sovereign prerogatives to identify new

public functions, and to perform those functions

through the structures they deem appropriate. As this

Court has recognized, “a static concept of government

denies its essential nature” because the “science of government … is the science of experiment.” New York v.

United States, 326 U.S. 572, 579–80 (1946) (cleaned

up). This is particularly true of State governments,

which over the Nation’s history have assumed responsibilities previously left to private actors in order to

meet society’s changing needs. See infra Part I.A. In

view of States’ evolving functions, this Court has twice

abandoned efforts to base constitutional doctrines on

distinctions between “governmental” and “proprietary” state functions, and between “traditional” and

“nontraditional” state functions. And it should reject

similar invitations by Respondents here to draw distinctions, for immunity purposes, between governmental and commercial functions. See infra Part I.B.

Second, in evaluating New Jersey’s control over NJ

Transit, the Court should apply a standard of control

that respects States’ prerogatives to afford their agencies and instrumentalities degrees of independence

and autonomy greater than those possible in the federal government. Respondents here argue for a rigid

approach to analyzing control, grounded in separationof-powers principles applicable to federal agencies and

hostile to the corporate form States often use for special-purpose public authorities. That approach stifles

experimentation, infringes States’ sovereign dignity,

and ignores the reality that even some federal instrumentalities enjoy significant operational autonomy

but plainly remain part of the federal government.

This Court should reject Respondents’ cramped approach to assessing state control. See infra Part II.

5

Finally, in analyzing New Jersey’s financial relationship with NJ Transit, the Court should treat this

factor as neither dispositive nor predominant. The

“preeminent purpose of state sovereign immunity is to

accord States the dignity that is consistent with their

status as sovereign entities.” Fed. Mar. Comm’n, 535

U.S., at 760. Sovereign immunity thus “bars suits

against States and state entities regardless of the nature of the relief requested.” Hess, 514 U.S., at 60

(O’Connor, J., dissenting). A State’s financial responsibility for an entity may be “a sufficient condition” for

sovereign immunity, but it should not be “a necessary

condition.” Id., at 59. In any event, judgments against

a state instrumentality may have “overall effects on

the state treasury,” Puerto Rico Ports Auth. v. Fed.

Mar. Comm’n, 531 F.3d 868, 874 (CADC 2008) (Kavanaugh, J.), even if the State is not financially responsible for the instrumentality. See infra Part III.

ARGUMENT

I. Arm-of-the-state analysis should respect

States’ autonomy to define new functions for

State governments and to perform those

functions through instrumentalities.

A. States enjoy autonomy to perform a wide

range of important functions through instrumentalities.

1. States enjoy autonomy in deciding which functions to pursue. “The essence of our federal system is

that within the realm of authority left open to them

under the Constitution, the States must be equally

free to engage in any activity that their citizens choose

for the common weal ….” Garcia v. San Antonio Metro.

Transit Auth., 469 U.S. 528, 546 (1985). As James

Madison recognized in The Federalist No. 45, state

6

powers are “numerous and indefinite,” “extend[ing] to

all the objects” that “concern the lives, liberties and

properties of the people; and the internal order, improvement and prosperity of the State.” See also The

Federalist No. 39 (Madison) (discussing States’ “residuary and inviolable sovereignty”). The Tenth Amendment made this reservation explicit. All powers “not

delegated to the United States” belong to “the states

respectively, or to the people.” U.S. Const. amend. X.

This creates a straightforward “default rule.” U.S.

Term Limits, Inc. v. Thornton, 514 U.S. 779, 847–48

(1995) (Thomas, J., dissenting). “As far as the Federal

Constitution is concerned, … the States can exercise

all powers that the Constitution does not withhold

from them.” Id.

States also enjoy autonomy in deciding how to pursue these functions. No less than the federal government, States may use “all means which are appropriate, which are plainly adapted to that end, [and] which

are not prohibited” when exercising their reserved

powers. M’Culloch v. Maryland, 17 U.S. (4 Wheat.)

316, 421 (1819); see, e.g., Nebbia v. New York, 291 U.S.

502, 537 (1934) (when a State adopts a policy “to promote the public welfare,” it may “enforce that policy by

legislation adapted to its purpose”). That stands to reason. If States are to “serve as laboratories for social

and economic experiment,” Garcia, 469 U.S., at 546,

then they must have room to “lear[n] by trial and error,” Conn. Light & Power Co. v. Fed. Power Comm’n,

324 U.S. 515, 530 (1945).

2. States have exercised this autonomy to expand

both the range of functions they perform and the types

of entities they use to perform them. “Whereas state

governments historically served a limited number of

purposes, they are ubiquitous today. They deliver innumerable services; spur economic and housing

7

development; rebuild crumbling infrastructure; and

regulate industry, land use, and the environment.”

Alex E. Rogers, Clothing State Governmental Entities

with Sovereign Immunity: Disarray in the Eleventh

Amendment Arm-of-the-State Doctrine, 92 Colum. L.

Rev. 1243, 1244 (1992). Such “changes in the historical

functions of States … have resulted in a number of

once-private functions like education being assumed

by the States and their subdivisions.” Garcia, 469 U.S.,

at 543–44. Indeed, “[m]any governmental functions of

today have at some time in the past been nongovernmental. The genius of our government provides that,

within the sphere of constitutional action, the people—

acting not through the courts but through their elected

legislative representatives—have the power to determine as conditions demand, what services and functions the public welfare requires.” Helvering v. Gerhardt, 304 U.S. 405, 427 (1938) (Black, J., concurring).

States often pursue important public functions by

establishing instrumentalities specifically for the task.

Consider state universities. In 1839, for example, the

Missouri General Assembly “created a public corporation for educational purposes—a State university.”

Head v. Curators, 47 Mo. 220, 225 (1871), aff’d sub

nom. Head v. Univ. of Mo., 86 U.S. 526 (1873). This

“corporation and body politic,” id., at 224—the first

public higher-educational institution west of the Mississippi River—was “an agency of [the State’s] own,

through which it proposed to accomplish certain educational objects.” Id., at 225. Today, the University of

Missouri enrolls more than 27,000 students, see University of Missouri, MU Analytics, bit.ly/UM_Enrollment, and its healthcare system competes with forprofit and nonprofit healthcare systems throughout

the State. See also Arkansas v. Texas, 364 U.S. 368,

370 (1953) (treating the similarly situated University

8

of Arkansas as part of Arkansas for original-jurisdiction purposes).

Or take public authorities, which “operate in the

public interest but in the manner of a self-supporting

business.” Jerry Mitchell, Policy Functions and Issues

for Public Authorities, in Public Authorities and Public

Policy 3 (Jerry Mitchell, ed. 1992). As States have

taken on more responsibilities, they have increasingly

established public authorities to “augment[] their revenue-generating capacity” by using “creative revenue

sources beyond raising income and sales taxes.” Rogers, supra, at 1248; see also id., at 1250 (explaining

that public authorities can “remain free from the debt

limits imposed by state constitutions on state and local

government borrowing”). The Puerto Rico Ports Authority, created to develop and operate the commonwealth’s “air and marine transportation facilities and

services,” is a good example. P.R. Laws Ann. Tit. 23,

§ 336; see also P.R. Ports Auth., 531 F.3d, at 872 (noting that “special-purpose public corporations (like

PRPA) established by States to perform specific functions” are a common subject of arm-of-the-state analysis). Instead of tackling that function on its own (or

delegating it to the Department of Transportation and

Public Works), Puerto Rico’s Legislative Assembly established a “government controlled corporation” to act

as an “arm of the commonwealth.” P.R. Ports Auth.,

531 F.3d, at 871. It then entrusted that body with “promot[ing] ‘the general welfare’” and “increas[ing] ‘commerce and prosperity’ for the benefit ‘of the people of

Puerto Rico’” by, among other things, “redevelop[ing]

San Juan’s waterfront and harbor.” P.R. Ports Auth.,

531 F.3d, at 871, 875, 880 (quoting P.R. Laws Ann. Tit.

23, § 348(a)).

And then there’s MOHELA itself. Missouri “recognizes higher education as a governmental function,”

9

Todd v. Curators of Univ. of Mo., 147 S.W.2d 1063,

1064 (Mo. 1941), so the State’s legislature sought to

“assure that all eligible postsecondary education students have access to student loans,” Mo. Rev. Stat.

§ 173.360. To that end, it created a “nonprofit government corporation to participate in the student loan

market.” Biden, 600 U.S., at 489. This “public instrumentality” is “empowered by the State to invest in or

finance student loans” and “may also service loans and

collect reasonable fees for doing so.” Id., at 490 (citing

Mo. Rev. Stat. § 173.385.1 (cleaned up)). MOHELA

uses the profits from this “public function” to support

another “public function”: funding “grants and scholarships for Missouri students” and “development projects at Missouri colleges and universities.” Id.

B. This Court has repeatedly abandoned efforts to distinguish traditional and nontraditional State functions, and it should

shun such an approach here.

1. This Court has twice experimented with judgemade tests that required courts to draw lines between

State functions. The Court abandoned both efforts. In

New York v. United States, the “untenab[ility]” of distinguishing “governmental” from “proprietary” functions led the Court unanimously to discard that effort.

326 U.S., at 583. And in Garcia v. San Antonio Metro

Transit Authority, less than a decade after embarking

on a new line-drawing project, the Court gave up on

distinguishing between “traditional” and “nontraditional” State functions. 469 U.S., at 530.

a. Eighty years ago, this Court abandoned a decadeslong effort to draw judge-made lines between “governmental” and “proprietary” State functions. Id., at 542.

The project began with Collector v. Day, 78 U.S. (11

Wall.) 113 (1870), which held that the Constitution

10

prohibits Congress from “taxing the salary of the judicial officer of a State” because such taxation threatened to interfere with “one of [the State’s] most important functions, the administration of the laws.” Id.,

at 124, 126. Justice Bradley dissented, warning that

the Court’s decision was “founded on a fallacy” and

would be “very difficult [to] control.” Id., at 129.

“Where are we to stop in enumerating the functions of

the State governments, which will be interfered with

by Federal taxation?” Id.

Seeking a limiting principle, the Court later distinguished “state agencies and instrumentalities … of a

strictly governmental character” (exempt) from those

“used by the state in the carrying on of an ordinary

private business” (taxable). South Carolina v. United

States, 199 U.S. 437, 461 (1905). Yet this line proved

difficult to apply. When States began using their police

power to control liquor sales, the Court splintered over

whether State dispensary systems served a “governmental” function. Id., at 463; id., at 472 (White, J., dissenting). And while the Court initially denied that

supplying public water was an “essential governmental functio[n],” Flint v. Stone Tracy Co., 220 U.S. 107,

172 (1911), it later reversed course, citing “the needs

of the modern city,” Brush v. Comm’r, 300 U.S. 352,

370 (1937).

The Court ultimately abandoned these distinctions.

See New York, 326 U.S., at 580–83. As Justice Frankfurter observed, the “fiscal and political factors” involved in the Court’s line-drawing project did not “lend

themselves to judgment by criteria and methods of

reasoning that are within the professional training

and special competence of judges.” Id., at 581. Chief

Justice Stone concurred, calling “the distinction between ‘governmental’ and ‘proprietary’ interests” “untenable.” Id., at 586 (Stone, C.J., concurring in result,

11

joined by Reed, Murphy, and Burton, JJ.). And even

the dissenting Justices rejected the Court’s line-drawing efforts, reasoning that “[a] State’s project is as

much a legitimate governmental activity whether it is

traditional, or akin to private enterprise, or conducted

for profit.” Id., at 591 (Douglas, J., dissenting, joined

by Black, J.).

b. More recently, the Court rejected a similar judgemade distinction between “traditional” and “nontraditional” State functions. See Garcia, 469 U.S., at 530.

In National League of Cities v. Usery, 426 U.S. 833, 852

(1976), the Court held that the Commerce Clause does

not permit Congress to regulate States’ “integral operations in areas of traditional governmental functions.”

The majority “did not offer a general explanation of

how a ‘traditional’ function is to be distinguished from

a ‘nontraditional’ one,” Garcia, 469 U.S., at 530, or

grapple with the Court’s experience drawing lines between governmental and proprietary functions.

Nine years later, the Court discarded the National

League of Cities standard as “no more fruitful” than

the judge-made distinction rejected in New York. Id.,

at 543. The Court began by surveying the inconsistent

results that followed National League of Cities,

“find[ing] it difficult, if not impossible, to identify an

organizing principle” to explain which State functions

were protected and which were not. Id., at 538–39 (collecting lower-court decisions). It then explained why

no historical test was up to the task. For one thing,

such a test could not “accomodat[e] changes in the historical functions of states,” which now perform “a number of once-private functions.” Id., at 543–44. Still

more, “courts would have to decide by fiat precisely

how longstanding a pattern of state involvement had

to be” to qualify as traditional. Id., at 544. Indeed, any

judge-made test about State functions “invites an

12

unelected federal judiciary to make decisions about

which state policies it favors and which ones it dislikes.” Id., at 546. “[J]udicial appraisal” of that sort not

only “disserves principles of democratic self-governance” but also “breeds inconsistency precisely because

it is divorced from those principles.” Id., at 547.

2. This Court should decline to revisit its line-drawing efforts here. Mr. Colt’s brief in opposition argued

(at 23) that “immunity is not proper for state-created

entities engaging in purely commercial behavior.” But

that test would resurrect the very distinctions New

York and Garcia abandoned, and is no more workable

or sound today.

For one thing, distinguishing “purely commercial behavior” (whatever that means) from other State activity is no small task. Many government agencies and

instrumentalities generate revenue through what can

be described as commercial activity. For example, Congress “brought the Government into the commercial

sale of goods and services,” Lebron v. Nat’l R.R. Passenger Corp., 513 U.S. 374, 388 (1995), by authorizing

the Tennessee Valley Authority, a public corporation,

to sell “surplus power,” 16 U.S.C. § 831i. Likewise, the

General Services Administration leases vacant government buildings to private individuals and businesses. 40 U.S.C. § 581(h), see GSA, Outleasing,

bit.ly/Outleasing (last updated Jan. 30, 2025) (listing

available properties). And the Defense Commissary

Agency runs supermarkets on military bases to provide servicemembers with “groceries and household

supplies at the lowest practical price.” 32 C.F.R.

§ 383a.3(a)(1). But these revenue-raising efforts are

simply the means “deemed appropriate, and prescribed, for the pursuit of” a broader governmental

function. MCI Telecomms. Corp. v. AT&T Co., 512 U.S.

218, 231 n.4 (1994). Mr. Colt’s test would force judges

13

to disentangle means from ends—a task even more

“unsound in principle and unworkable in practice”

than those the Court abandoned in New York and Garcia. 469 U.S., at 546.

But even if Mr. Colt’s test were administrable, it

would still “disserve principles of democratic self-governance” by forcing States to “pay an added price”

whenever they entrust public functions to self-funding

instrumentalities. Id., at 546–47. Instead of taxing all

citizens, States have opted to entrust certain State

functions to instrumentalities that cover at least some

of their own costs. Our constitutional system leaves

States, as separate sovereigns, broad latitude to perform such “economic experiment[s]”—and “an unelected federal judiciary” should not burden those experiments by restricting immunity only to supposedly

traditional government organs pursuing traditional

public functions. Id.

II. Arm-of-the-state analysis should respect a

State’s sovereign right to determine how to

structure its government to perform its sovereign functions.

Under the Constitution, States retain the sovereign

right to determine the structure of their state government, as long as it is republican in form. See U.S.

Const. art. IV, § 4. Given that the “preeminent purpose

of state sovereign immunity” is to ensure States enjoy

“the dignity that is consistent with their status as sovereign entities,” Fed. Mar. Comm’n, 535 U.S., at 760,

the arm-of-the-state analysis must respect this right

and ensure that a State’s sovereign immunity extends

to all forms of state-controlled instrumentalities that

perform public functions.

1. A “State defines itself as a sovereign” through “the

structure of its government, and the character of those

14

who exercise government authority.” Gregory v. Ashcroft, 501 U.S. 452, 460 (1991). “How power shall be

distributed by a [S]tate among its governmental organs is commonly, if not always, a question for the

[S]tate itself.” Highland Farms Dairy, Inc. v. Agnew,

300 U.S. 608, 612 (1937). And because the “concept of

separation of powers embodied in the United States

Constitution is not mandatory in state governments,”

Sweezey v. New Hampshire, 354 U.S. 234, 255 (1957),

the instrumentalities state governments employ may

differ from those of the federal government.

In fact, differences are bound to exist given the diversity of state constitutional provisions. A “comparison between the 50 state constitutions on the one side

and the federal constitution on the other reveals lots

of structural distinctions.” Jeffrey S. Sutton, Administrative Law in the States: An Introduction to the Symposium, 46 Harv. J. L. & Pub. Pol’y 307, 318 (2023).

Start with the ease of amending state constitutions.

“Forty-six require a mere majority vote once an

amendment reaches the ballot, a marked contrast to

the federal requirement that three-quarters of the

States approve an amendment.” Id. As a result, state

constitutions “have evolved far more than the U.S.

Constitution since 1776 and 1789.” Id., at 318–19 (citing, among other examples, that some states have divided the executive power, creating “plural [elected]

positions of the executive branch,” and some let citizens vote to directly enact laws “through the initiative

and referendum”).

The fact that State governments can deviate from

the federal-government model benefits the nation as a

whole. This Court has “long recognized the role of the

States as ‘laboratories devising solutions’ to difficult

problems.” Oregon v. Ice, 555 U.S. 160, 171 (2009)

(cleaned up). As Justice Brandeis famously recognized,

15

“[i]t is one of the happy incidents of the federal system

that a single courageous state may, if its citizens

choose, serve as a laboratory, and try novel social and

economic experiments without risk to the rest of the

country.” New State Ice Co. v. Liebmann, 285 U.S. 262,

311 (1932) (Brandeis, J., dissenting). If the experiment

works out well, other States can adopt it. Or not.

“Uniformity isn’t everything.” Jeffrey S. Sutton, 21st

Century Federalism: A View from the States, 46 Harv.

J. L. & Pub. Pol’y 31, 40 (2023). There “are many areas

of public policy where there are legitimate reasons” for

States to follow “different path[s].” Id. It is a virtue of

our federal system that each State has the sovereign

right to choose the path that is best for its citizens.

2. Many courts, however, are reluctant to afford sovereign immunity to state instrumentalities unless

they are under the direct control of a governor or other

elected official who can veto their decisions or fire their

leaders without cause. The Tenth Circuit’s analysis of

MOHELA in Good v. Department of Education, 121

F.4th 772 (2024), pet. for cert. pending, No. 24-992, is

a case in point.

The Tenth Circuit found that the language of MOHELA’s organic statute “indicates that, as a matter of

Missouri law, MOHELA qualifies as a state agency.”

Id., at 799. The statute repeatedly describes MOHELA

as a “public instrumentality of the State of Missouri”

that “performs a public function.” Id. (citing Mo. Rev.

Stat. §§ 173.360, 173.415). In addition, the statute assigns MOHELA to the Missouri Department of Higher

Education and Workforce Development. Id., at 785.

And MOHELA’s “proceedings and actions ... shall comply with all statutory requirements respecting the conduct of public business by a public agency.” Id., at 800

(quoting Mo. Rev. Stat. § 173.365).

16

Even though MOHELA is an instrumentality of Missouri under Missouri law, however, the Tenth Circuit

held that Missouri is not immune from private suits in

federal court because it has too much autonomy from

the Governor and because the State is not directly liable for its debts.

On the autonomy factor, the Tenth Circuit acknowledged this Court’s finding that MOHELA is under the

State’s “supervision and control” because it is governed by a board of state officials and individuals

whom the Governor appoints and may remove for

cause, it “must provide annual financial reports to the

Missouri Department of Education,” and state law

“sets the terms of its existence.” Biden, 600 U.S., at

490–91; see Good, 121 F.4th, at 803–04. But the Tenth

Circuit in essence rejected that finding, holding that

the Governor’s “power to appoint” MOHELA’s board

“is not the power to control.” 121 F.4th, at 803. In the

Tenth Circuit’s view, MOHELA was subject only to

“some degree of gubernatorial and legislative control,”

which was “undercut” by the fact that the Governor

“lacks veto power” over MOHELA’s decisions, and that

MOHELA’s board can hire an executive director and

employees who are paid from MOHELA’s funds and

are not “subject to the State’s merits system for hiring

or the State’s retirement plan.” Id., at 804–05 (emphasis in original). The Tenth Circuit further found—

again, contrary to this Court’s decision in Biden—that

MOHELA’s ability to own property, enter contracts,

set its own policies, and sue and be sued weighed

against arm-of-the-state status. See id., at 805–08.

Contra Biden, 600 U.S., at 492 (observing that, while

every government corporation “has a legal personality

separate from the State …, with the powers to hold and

sell property and to sue and be sued,” “such an instrumentality—created and operated to fulfill a public

17

function—nonetheless remains (for many purposes at

least) part of the Government itself” (cleaned up)).

3. Mr. Colt makes a similar argument in this case,

saying the Governor’s “power of remov[al] is also ‘essential’ to establishing control” over New Jersey

Transit. Br. in Opp. at 18 (quoting Seila Law LLC v.

CFPB, 591 U.S. 197, 214 (2020)). That is incorrect. A

State’s sovereign immunity is not conditioned on its

adherence to the same separation-of-powers principles

that apply to federal agencies. See supra at 13–15; see

also Dreyer v. Illinois, 187 U.S. 71, 84 (1902)

(“Whether the legislative, executive, and judicial powers of a state shall be kept altogether distinct and separate, or whether persons or collections of persons belonging to one department may, in respect to some

matters, exert powers which, strictly speaking, pertain

to another department of government, is for the determination of the state.”). And States often give their

governmental organs, including public authorities,

greater independence precisely because they believe

that “depoliticiz[ing] governing by employing professional managers” and “avoid[ing] civil service requirements” better enables such entities to fulfill their public functions. Rogers, supra, at 1250 n.31.

Moreover, courts have held that federal agencies

share the United States’ sovereign immunity from suit

even when Congress has given them similar levels of

independence and discretion. For example, members

of the Board of Governors of the Federal Reserve System may only be “removed for cause by the President.”

12 U.S.C. § 242. The Board may hire employees who

are paid with the Board’s funds and are not covered by

federal civil-service laws. Id., §§ 244, 248(l). And the

Board is a “nonappropriated fund instrumentality that

receives no funding through congressional appropriations.” Albrecht v. Comm. on Emp. Benefits, 357 F. 3d

18

62, 67 (CADC 2004). Yet the Board of Governors “enjoys sovereign immunity.” Id.

4. In denying immunity to NJ Transit, the Court of

Appeals of New York was influenced by the fact that

“New Jersey’s government does not direct the day-today operations of NJT.” Pet. App. 16a (citing NJ

Transit’s power to “make and alter bylaws for its organization,” “transact in real and personal property,”

“set fares and collect revenue for its operations, and

enter into agreements and contracts”). The Tenth Circuit applied similar reasoning in denying immunity to

MOHELA because it “has a fair degree of operational

autonomy—particularly in its ability to make contracts, own property, manage its day-to-day affairs,

and select its leadership.” Good, 121 F.4th, at 820.

Those attributes, however, are incident to MOHELA

and NJ Transit’s status as public corporations, a form

States frequently use for instrumentalities established

to perform specific governmental functions. See, e.g.,

Kohn, 87 F.4th, at 1032–33; P.R. Ports Auth., 531 F.3d,

at 872. They do not negate the fact that the entity is

an arm of the state that exists to pursue state governmental functions under the State’s control.

As noted above, this Court has recognized that

“[e]very government corporation has such a distinct

personality; it is a corporation, after all, with the powers to hold and sell property and to sue and be sued.

Yet such an instrumentality—created and operated to

fulfill a public function—[may] nonetheless remain[]

‘(for many purposes at least) part of the Government

itself.’” Biden, 600 U.S., at 492 (cleaned up). As this

Court observed regarding a federal public corporation,

“the form which Government takes—whether it appears as the Secretary of the Treasury, the Secretary

of War, or the Inland Waterways Corporation—is

19

wholly immaterial.” Inland Waterways Corp. v. Young,

309 U.S. 517, 523 (1940).

Indeed, this Court found that when Congress reorganized the Postal Service to give it similar corporate

powers to increase its efficiency and “reduce political

influences on its operations,” that “did not strip it of its

governmental status.” U.S. Postal Serv. v. Flamingo

Indus. (USA) Ltd., 540 U.S. 736, 740, 744 (2004).

The Postal Service has existed in varying forms since

the founding of the country under the Articles of Confederation. Id., at 739. At some times, the Postmaster

reported directly to the President. At other times, the

Postal Service was subordinate to the Treasury Department, or was recognized by Congress as “an executive department of the Federal Government” named

“the Post Office Department.” Id., at 739–40.

In 1970, Congress removed the Post Office Department from the Cabinet, changed its name to “the

United States Postal Service,” and made it “an independent establishment of the executive branch of the

Government of the United States.” Id., at 740 (quoting

39 U.S.C. § 201). The Postal Service is overseen by an

11-member Board of Governors. 39 U.S.C. § 202. Nine

governors are appointed by the President with the advice and consent of the Senate and are removable only

for cause. Id. The other two governors are the Postmaster General (“who also serves as the chief executive officer of the Postal Service, and who is appointed

by the other nine”) and the Deputy Postmaster General (“who is appointed by the other nine together with

the Postmaster General”). Flamingo Indus., 540 U.S.,

at 740 (describing board structure set out in 39 U.S.C.

§ 202). The reorganized Postal Service “retains its monopoly over the carriage of letters” and has “significant

governmental powers, consistent with its status as an

independent establishment of the Executive Branch,”

20

including “powers to contract, to acquire property, and

to settle claims.” Id., at 741. It also has the power “to

sue and be sued in its official name.” 39 U.S.C.

§ 401(1).

This Court has interpreted the sue-and-be-sued

clause as a broad waiver of the Postal Service’s sovereign immunity. See Loeffler v. Frank, 486 U.S. 549

(1988); Franchise Tax Bd. v. U.S. Postal Serv., 467

U.S. 512 (1984). But it never questioned that the

Postal Service was an arm of the United States that is

entitled to immunity unless waived by Congress. Quite

the contrary: the Court held that the Postal Service retains its “governmental status” even though Congress

waived its immunity from suit. Flamingo Indus., 540

U.S., at 744.

The same should be true for state instrumentalities

that have attributes of corporate form, are under state

control, and are used to perform governmental functions. They, too, are arms of the State that are entitled

to share the State’s immunity from suit in federal

court or the courts of other states. And that remains

true even where the state instrumentality has a sueand-be-sued clause. To respect the sovereign rights of

States, this Court has held that a State “does not consent to suit in federal court merely by consenting to

suit in the courts of its own creation” or “merely by

stating its intention to ‘sue and be sued.’” Coll. Savs.

Bank v. Fla. Prepaid Postsecondary Educ. Expense

Bd., 527 U.S. 666, 676 (1999) (emphasis added) (citing

Smith v. Reeves, 178 U.S. 436, 441–45 (1900), and Fla.

Dept. of Health & Rehab. Servs. v. Fla. Nursing Home

Assn., 450 U.S. 147, 149–50 (1980) (per curiam)).

21

III. A State instrumentality can be an arm of the

State even if the State has not agreed to be

liable for judgments against the entity.

The New York Court of Appeals also erred in giving

dispositive weight to the fact that New Jersey lacks

“legal liability or ultimate financial responsibility for a

judgment” against NJ Transit. Pet. App. 18a. The

court’s suggestion that the suit “would not be an affront to New Jersey’s dignity because a judgment

would not be imposed against the State,” id., is based

on a cramped view of the sovereign rights at stake.

1. “The generation that designed and adopted our

federal system considered immunity from private suits

central to sovereign dignity.” Alden, 527 U.S., at 715.

As Hamilton wrote in The Federalist No. 81, it “is inherent in the nature of sovereignty not to be amenable

to the suit of an individual without its consent.” Id., at

716 (emphasis in original).

“The founding generation thus took as given that

States could not be haled involuntarily before each

other’s courts.” Franchise Tax Bd. v. Hyatt, 587 U.S.

230, 239 (2019). The Eleventh Amendment was ratified to confirm that the Constitution does not permit

any suits “against the States that were ‘anomalous

and unheard of when the Constitution was adopted.’”

Id., at 243 (quoting Hans v. Louisiana, 134 U.S. 1, 18

(1890)).

The States’ immunity from suit is not limited to situations in which there could be a judgment against the

state treasury. This Court has made clear that state

sovereign immunity does “not exist solely in order to

‘prevent federal-court judgments that must be paid out

of a State’s treasury.’” Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 58 (1996) (quoting Hess, 513 U.S., at

48). Sovereign immunity is more than just “a defense

22

to monetary liability or even to all types of liability.”

Fed. Mar. Comm’n, 535 U.S., at 766. It provides “an

immunity from suit,” id., thus avoiding “the indignity

of subjecting a State to the coercive process of judicial

tribunals at the instance of private parties.’” Seminole

Tribe, 517 U.S., at 58 (quoting Puerto Rico Aqueduct &

Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146

(1993)). Indeed, sovereign immunity’s “central purpose

is to accord the States the respect owed them as joint

sovereigns.” Fed. Mar. Comm’n, 535 U.S., at 765

(cleaned up).

2. A State’s dignity and sovereign rights are harmed

when one of its instrumentalities is hauled into court

without its consent, even if the State is not directly liable for any resulting judgments. Defending lawsuits

is costly and time-consuming. And to comply with adverse judgments, the entity will have to expend valuable resources and/or alter the way it operates, impairing its ability to perform the public functions for which

the State created it. That is an affront to the State’s

dignity and sovereign rights, and can cause financial

harm to the State, even if the State treasury is not legally obligated to pay the judgment. MOHELA provides a good example.

As this Court has recognized, MOHELA is a “public

instrumentality” of Missouri, established to “perform

the ‘essential public function’ of helping Missourians

access student loans needed to pay for college.” Biden,

600 U.S at 490 (quoting Mo. Rev. Stat. § 173.360). To

fulfill MOHELA’s “public function,” Missouri empowers it to issue bonds and to purchase, finance, and service student loans, activities for which MOHELA can

charge fees and earn revenues. Mo. Rev. Stat.

§ 173.385.1(6)–(8), (12), (18). MOHELA’s “profits help

fund education in Missouri.” Biden, 600 U.S., at 490.

MOHELA does so in several ways.

23

First, MOHELA is required by statute to give $350

million to the Lewis and Clark Discovery Fund—a

fund in the state treasury that the legislature uses to

fund capital projects at public colleges and universities

and to help colleges and universities identify opportunities to commercialize technologies. Mo. Rev. Stat.

§§ 173.385.2, 173.392. More than $100 million of that

obligation is outstanding. Am. Fed. of Teachers v.

Higher Educ. Loan Auth. of the State of Mo., No. 1-24cv-02460-TSC (D.D.C.), Dkt. 26-1, ¶ 8.

Second, MOHELA makes annual direct contributions to the State treasury to fund line items in the

State’s budget for financial aid and scholarship programs such as the Academic Scholarship Fund, the Access Missouri Financial Assistance Fund, and the A+

Schools Fund. Id., ¶¶ 4–7. The amount of contributions varies depending on MOHELA’s financial ability

to make them. In 2024, MOHELA contributed $6 million to fund these line items in the State’s budget. Id.,

¶ 7. But in 2011, MOHELA transferred $30 million because the State’s budget “banked on MOHELA making

the money transfer.” MOHELA to Provide $30M in

Scholarships, Columbia Daily Tribune (June 11,

2011), tinyurl.com/44xvvfzb.

Third, earlier this year, the Missouri General Assembly required MOHELA to support a new “Teacher

Recruitment and Retention State Scholarship Program” by purchasing and holding loans made under

the program to encourage college students to become

teachers. See S.B. 68, 103d Gen. Assemb., 1st Reg.

Sess. (Mo. 2025) (codified at Mo. Rev. Stat. § 173.232.1,

.6(a)). For every year the loan recipient teaches, a portion of the loan is forgiven. Id.

Fourth, MOHELA has established the Missouri

Scholarship Loan Foundation (Foundation) to help

make higher education more accessible and affordable

24

for Missouri families. MOHELA established the Foundation pursuant to its statutory authority to create or

contribute to “any type of financial aid program that

provides grants and scholarships to students.” Mo.

Rev. Stat. § 173.385.1(19); see also id., § 173.360

(deeming MOHELA’s exercise of its authorities as “the

performance of an essential public function”). The

Foundation’s mission is to provide innovative products

and services to help Missouri students, particularly

those with insufficient financial resources, prepare for,

enter into, and successfully complete higher education

at Missouri institutions. See Mo. Scholarship & Loan

Found., About Us, tinyurl.com/3run8s5p (last visited

Sept. 8, 2025).

Working with MOHELA, the Foundation offers the

Missouri Family Education Loan program to provide

borrowing options for Missouri students who have financial need but may not meet the traditional credit

requirements for private loans. The Foundation is the

lender, and MOHELA the servicer, for these loans.

The Foundation also provides a number of grant and

scholarship programs for Missouri students, including:

•

Finish Line Degree Completion Grant to assist

Missouri students who either have left school

with an outstanding balance or who are in their

final semester and have exhausted all federal financial-aid options.

•

My Missouri “MyMO” Scholarship Program to

assist Missouri students on their pathway to

college starting in their 9th-grade year.

•

Purdy Emerging Leaders Scholarship Program

to provide scholarships to emerging leaders who

are outstanding students and who need additional funding for higher education.

25

•

Show-Me to College Scholarship for students

with a Student Aid Index of 12,000 or less, a

GPA of 3.5 or higher at a Missouri high school,

and a proven record of community service, extracurricular participation, and/or work experience.

Litigation that causes financial harm to MOHELA

will reduce its ability to provide these resources to Missouri students and universities. Thus even though

MOHELA’s operating funds and revenues are not deposited in the state treasury, and Missouri is not legally liable for MOHELA’s debts, litigation that causes

financial harm to MOHELA harms the State of Missouri “that created and controls MOHELA.” Biden, 600

U.S., at 494. Missouri established MOHELA to increase the amount of money available to support

higher education in the State, and it treats MOHELA’s

assets as state assets available for that purpose.

Because “money is fungible,” Knox v. Serv. Emps.

Int’l Union, 567 U.S. 298, 317 n.6 (2012), MOHELA’s

resources make funds in the state treasury available

to serve other public functions, and, more to the point,

judgments against MOHELA require Missouri either

to redirect treasury funds to the higher-education programs dependent on MOHELA in order to maintain

the same level of support, or else settle for fewer resources for this essential public purpose. Ignoring this

reality and opening MOHELA to suit, as the Tenth

Circuit did, exposes Missouri to the very risk the Eleventh Amendment aims to guard against: It subjects

“the course of [Missouri’s] public policy and the administration of [its] public affairs” to “the mandates of judicial tribunals without [its] consent, and in favor of

individual interests.” Alden, 527 U.S., at 750 (cleaned

up).

26

CONCLUSION

The Court should affirm the Pennsylvania Supreme

Court’s judgment in Galette and reverse the New York

Court of Appeals’ judgment in New Jersey Transit.

Respectfully submitted,

Daniel J. Feith

Counsel of Record

Kathleen M. Mueller

Peter A. Bruland

SIDLEY AUSTIN LLP

1501 K Street, NW

Washington, D.C. 20005

(202) 736-8000

dfeith@sidley.com

Counsel for Amicus Curiae

Higher Education Loan

Authority of the State of

Missouri

Catherine L. Hanaway

Attorney General

Louis J. Capozzi III

Solicitor General

MISSOURI ATTORNEY

GENERAL’S OFFICE

207 West High Street

Jefferson City, MO 65102

(573) 751-3321

louis.capozzi@ago.mo.gov

Counsel for Amici Curiae

The State of Missouri and

Higher Education Loan

27

Authority of the State of

Missouri

September 10, 2025

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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