William J. Brennan, Jr.

“ While a State has plenary power to create and destroy its political subdivisions, a State enjoys no such hegemony over an interstate agency. To begin with, a State cannot create such an agency at will. In order to do so, it must persuade another State, or several other States, to join it. Moreover, the creation of an interstate agency requires each State to relinquish to one or more sister States a part of its sovereignty. The regulatory powers exercised by an interstate agency are powers no longer inhering in any one compacting State; they are powers shared. ”

“ Congress may provide an interstate agency with an affirmative defense to its federal statutory obligations as Congress wishes, subject only to independent constitutional strictures such as the Equal Protection Clause. Congress would ordinarily be expected to address the matter through a specific statutory provision. It may also be that a court could legitimately infer Congress' intention to provide such a defense from its consent to an interstate compact the terms of which patently attempt to grant immunity from suit in federal court. ”

“ He used it in a passage reassuring States, which might have been concerned with the securities they issued and might not have wished to honor, that the grant of diversity jurisdiction in Article III would not annul their defense of sovereign immunity should they be sued in federal court under state law on a writ of debt. "It is inherent in the nature of sovereignty, not to be amenable to the suit of an individual without its consent. This is the general sense, and the general practice of mankind ”

“ Lower courts have uniformly held that States may not cloak their officers with a personal Eleventh Amendment defense by promising, by statute, to indemnify them for damages awards imposed on them for actions taken in the course of their employment. ”

“ The Federalist No. 81, p. 567 (H. Dawson ed. 1876) (second emphasis added) .↑ This Court has twice before addressed the question whether a bistate entity could raise an Eleventh Amendment defense to federal jurisdiction, and twice rejected the specific immunity claim presented. See Petty v. Tennessee-Missouri Bridge Comm'n, 359 U.S. 275, 279-280, 79 S.Ct. 785, 788-789, 3 L.Ed.2d 804 (1959) (not reaching "arm-of-the-State" issue but finding that any Eleventh Amendment bar had been waived) ; Lake Country Estates, Inc. v. ”