Page:Biden v. Nebraska.pdf/58

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Cite as: 600 U. S. ____ (2023)

11

Kagan, J., dissenting

id., at 383 (Amtrak “must be regarded as a Government entity for First Amendment purposes”); id., at 392 (Amtrak is “a Government entity for purposes of determining the constitutional rights of citizens”); id., at 394 (Amtrak is an “instrumentality of the United States for the purpose of individual rights guaranteed against the Government”); id., at 397, 399, 400 (similar, similar, and similar). But for other purposes, a different rule might, or would, obtain. Our holding, we said, did not mean Amtrak had sovereign immunity. See id., at 392. And most relevant here, we reaffirmed that “[t]he State does not, by becoming a corporator, identify itself with the corporation” for purposes of litigation. Id., at 398. Or said again, the Government is “not a party to suits brought by or against” its corporation. Id., at 399. So what Lebron tells us about MOHELA is that it must comply with the Constitution. Lebron offers no support (more like the opposite) for the different view that MOHELA and Missouri are interchangeable parties in litigation.^[1]

↑ The same goes for the majority’s other case about Amtrak, which just “reiterate[s]” Lebron’s reasoning. Ante, at 11; see Department of Transportation v. Association of American Railroads, 575 U. S. 43 (2015). There too we held that Amtrak was a “governmental entity” for purposes of the “requirements of the Constitution”—specifically, the nondelegation doctrine. Id., at 54. And there too we kept our holding as limited as possible, repeatedly stating that we were treating Amtrak as the Government for that purpose alone. See, e.g., id., at 51 (“for purposes of separation-of-powers analysis under the Constitution”); id., at 54 (“for purposes of the Constitution’s separation of powers provisions”); id., at 55 (“for purposes of determining the constitutional issues presented in this case”). As for any other purpose? Not a word to suggest the same result. And as even the majority concedes, “a public corporation can count as part of the State for some but not other purposes.” Ante, at 12, n. 3 (internal quotation marks omitted). The Amtrak decisions, to continue borrowing the majority’s language, “said nothing about, and had no reason to address, whether an injury to [a] public corporation is a harm to the [Government].” Ibid.

[1] The same goes for the majority’s other case about Amtrak, which just “reiterate[s]” Lebron’s reasoning. Ante, at 11; see Department of Transportation v. Association of American Railroads, 575 U. S. 43 (2015). There too we held that Amtrak was a “governmental entity” for purposes of the “requirements of the Constitution”—specifically, the nondelegation doctrine. Id., at 54. And there too we kept our holding as limited as possible, repeatedly stating that we were treating Amtrak as the Government for that purpose alone. See, e.g., id., at 51 (“for purposes of separation-of-powers analysis under the Constitution”); id., at 54 (“for purposes of the Constitution’s separation of powers provisions”); id., at 55 (“for purposes of determining the constitutional issues presented in this case”). As for any other purpose? Not a word to suggest the same result. And as even the majority concedes, “a public corporation can count as part of the State for some but not other purposes.” Ante, at 12, n. 3 (internal quotation marks omitted). The Amtrak decisions, to continue borrowing the majority’s language, “said nothing about, and had no reason to address, whether an injury to [a] public corporation is a harm to the [Government].” Ibid.

[1]