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.