Opinion of the Court
raises no separation of powers problems. The right governmental actor (Congress) is making a decision within its bailiwick (to waive immunity) that authorizes an appropriate body (a court) to render a legal judgment. Indeed, the Government itself conceded at oral argument that Congress, when creating a public corporation, may constitutionally waive its “immunity [for] discretionary functions.” Tr. of Oral Arg. 37. But once that is acknowledged, the Government’s argument from “separation-of-powers principles” collapses. Brief for Respondent 19. Those principles can offer no reason to limit a statutory waiver that even without any emendation complies with the constitutional scheme.
Finally, the Government overreaches when it says that all suits based on the TVA’s discretionary conduct will “grave[ly] interfere[]” with “governmental function[s].” Burr, 309 U. S., at 245. That is so, at the least, because the discretionary acts of hybrid entities like the TVA may be not governmental but commercial in nature. And a suit challenging a commercial act will not “grave[ly]”—or, indeed, at all—interfere with the “governmental functions” Burr cared about protecting. The Government contests that point, arguing that this Court has not meant to distinguish between the governmental and the commercial in construing sue-and-be-sued clauses. See Brief for Respondent 39–40. But both Burr and later decisions do so explicitly. Burr took as its “premise” that an agency “launched [with such a clause] into the commercial world” and “authorize[d] to engage” in “business transactions with the public” should have the same “amenab[ility] to judicial process [as] a private enterprise under like circumstances.” 309 U. S., at 245. Meyer also made clear that such an agency “could not escape the liability a private enterprise would face in similar circumstances.” 510 U. S., at 482; see ibid. (“[T]he liability of a private enterprise [is] a floor below which the agency’s liability [may]
