56
I
Despite several invitations, this Court has not as yet had occasion to find an interstate entity shielded by the Eleventh Amendment from suit in federal court. See Port Authority Trans-Hudson Corp. v. Feeney, 495 U. S. 299 (1990) (assuming Eleventh Amendment applies, but finding waiver); Lake Country, supra (finding no reason to believe entity was arm of the State); Petty v. Tennessee-Missouri Bridge Comm'n, 359 U. S. 275 (1959) (same as Feeney). As I read its opinion, the Court now builds upon language in Lake Country to create what looks very much like a per se rule that the Eleventh Amendment never applies when States act in concert. To be sure, the Court leaves open the possibility that in certain undefined situations, we might find " 'good reason' " to confer immunity where States structure an entity to enjoy immunity and we see evidence that " 'Congress concurred in that purpose.' " Ante, at 43-44, quoting Lake Country, supra, at 401. But the crux of the Court's analysis rests on its apparent belief that the States ceded their sovereignty in the interstate compact context in the plan of the convention. See ante, at 41-42 ("As part of the federal plan prescribed by the Constitution, the States agreed to the power sharing, coordination, and unified action that typify Compact Clause creations"). Such broad reasoning brooks few, if any, exceptions.
In reaching its conclusion, the Court attaches undue significance to the requirement that Congress consent to interstate compacts. Admittedly, the consent requirement performs an important function in our federal scheme. In Cuyler v. Adams, 449 U. S. 433 (1981), we observed that " 'the requirement that Congress approve a compact is to obtain its political judgment: Is the agreement likely to interfere with federal activity in the area, is it likely to disadvantage other States to an important extent, is it a matter that would better be left untouched by state and federal regulation?' " Id., at 440, n. 8, quoting United States Steel
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