Cite as: 513 U. S. 30 (1994)
Opinion of the Court
fiscal resources of the Port Authority from the fiscal resources of the States is unrealistic and artificial.
This reasoning misses the mark. A charitable organization may undertake rescue or other good work which, in its absence, we would expect the State to shoulder. But none would conclude, for example, that in times of flood or famine the American Red Cross, to the extent it works for the public, acquires the States' Eleventh Amendment immunity.21
The proper focus is not on the use of profits or surplus, but rather is on losses and debts. If the expenditures of the enterprise exceed receipts, is the State in fact obligated to bear and pay the resulting indebtedness of the enterprise? When the answer is "No"—both legally and practically— then the Eleventh Amendment's core concern is not implicated.
IV
The conflict between the Second and Third Circuits, it bears emphasis, is no longer over the correct legal theory. Both Circuits, in accord with the prevailing view, see supra, at 48-49, identify "the 'state treasury' criterion—whether any judgment must be satisfied out of the state treasury—as the most important consideration" in resolving an Eleventh Amendment immunity issue. Brief for States of New Jersey, New York et al. as Amici Curiae 2 (acknowledging, but opposing, this widely held view). The intercircuit division thus persists only because the Second and Third Circuits diverge in answering the question: Are the Port Authority's debts those of its parent States? See ibid.
Two Third Circuit decisions issued after Port Authority PBA, both rejecting Eleventh Amendment pleas by public
21 It would indeed heighten a "myster[y] of legal evolution" were we to spread an Eleventh Amendment cover over an agency that consumes no state revenues but contributes to the State's wealth. See Borchard, Government Liability in Tort, 34 Yale L. J. 1, 4 (1924); see also Muskopf v. Corning Hospital Dist., 55 Cal. 2d 211, 213-216, and n. 1, 359 P. 2d 457, 458-460, and n. 1 (1961) (Traynor, J.).
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