SEMINOLE TRIBE v. FLORIDA
The Seminole Tribe brought suit against the State of Florida for violating the good faith negotiations requirement of the Indian Gaming Regulatory Act (IGRA). Under the IGRA, the Tribe may engage in gaming (i.e., casino gambling) activities subject to Florida's good faith regulations. Florida moved to dismiss the Tribe's action, alleging that the lawsuit violated Florida's sovereign immunity. On appeal from the District Court's denial of Florida's motion to dismiss the lawsuit, the Court of Appeals reversed, holding that the Eleventh Amendment shielded Florida from federal suit and that under Ex Parte Young, the Tribe may not enforce its right to good faith negotiations by naming Florida's governor as a party to the suit.
Does the Eleventh Amendment provide Florida with immunity from the Tribe lawsuit?
Legal provision: Amendment 11: Eleventh Amendment
Yes. In a 5-to-4 decision, The Court held that Congress did intend to abrogate states' sovereign immunity under the IGRA but that the Indian Commerce Clause (and by implication the Commerce Clause) did not give Congress that power. Under the Eleventh Amendment, all states are regarded as sovereign entities. Such sovereignty inherently implies that states may not be sued by parties without their consent, even if they are given authority to regulate those parties' activities through receipt of federal funds. Finally, Ex Parte Young's ruling does not justify the Tribe's suit against Florida's governor in light of certain IGRA provisions which specifically prohibit such an action.
Argument of Bruce S. Rogow
Chief Justice Rehnquist: We'll hear argument now in Number 94 12, Seminole Tribe of Florida v. Florida.
Mr. Rogow: Mr. Chief Justice, and may it please the Court--
One hundred and twenty one Indian tribes in 23 States have entered into 137 compacts pursuant to the Indian Gaming Regulatory Act.
The act carefully balances the interests of three sovereigns, the States, the United States, and the Indian tribes.
The act provides the States with an opportunity to play a significant role in the scope of Indian gaming within those States.
Central to the act is the duty of State officials to negotiate in good faith with the Indian tribes regarding gaming, and central to the act is the ability of the tribes to sue the States in Federal court if the States have not negotiated in good faith.
The decision below held that the Seminole Tribe did not have the right to sue the State of Florida and its Governor in Federal court despite Congress' clear promise that that right existed.
The court below found that there was no consent by Florida to this lawsuit, and that under Article I, the Foreign... I'm sorry, the Indian Commerce Clause, there was no power in Congress to abrogate Eleventh Amendment immunity, and finally, the court found that Ex Parte Young did not work in this case.
Our position is, is that there is the power to abrogate under the Indian Commerce Clause, and that if there is not, Ex Parte Young permits Federal rights to be vindicated and the interests of the Supremacy Clause to be protected by the suit against the Governor.
Unknown Speaker: Mr. Rogow, as a practical matter, what would the Indian tribes lose by the affirmance of the judgment of the Eleventh Circuit here?
They would still... they'd get regulations coming from the Secretary, which is what Congress could have given them in the first place.
Mr. Rogow: Under the decision of the Eleventh Circuit, they can go directly to the Secretary if they cannot sue.
If a State raises Eleventh Amendment immunity, and if a State will not negotiate in good faith, the court of appeals said they could go directly to the Secretary, and that is true that the Congress could have kept the States out of Indian gaming altogether.
If that decision of the Eleventh Circuit is affirmed, including the remedy the Eleventh Circuit left, then the tribes could go directly to the Secretary of the Interior.
Unknown Speaker: Is it clear that the tribes can go directly to the Secretary?
As I recall the Secretary is supposed to make his decision based on the negotiating positions of the parties, which precede that step in the legislation.
So there being no negotiating position, what makes you think that that section of the act subsists when the portion providing for suit against the States falls?
Mr. Rogow: Justice Scalia, it is not clear that one can go directly to the Secretary.
That's what the court of appeals concluded--
Unknown Speaker: Right.
Mr. Rogow: --and indeed, the State has cross petitioned in this case complaining about that aspect.
Unknown Speaker: So you don't necessarily... do you or do you not support the proposition that even if you can't sue the States, nonetheless the rest of the act stands and the Secretary can promulgate regulations?
Mr. Rogow: Given the alternative, I support the position.
Unknown Speaker: I thought you would.
What, may I ask, could be done if a State just refused, flat refused to negotiate?
Is there any contempt power against the State, or anything of that kind?
Mr. Rogow: That is covered in the act, Justice O'Connor, and the tribe could then file the lawsuit that is envisioned under 27(d) against the State for failure to negotiate at all, and then the process would occur just as it would in this case where there was negotiation, but the tribe--
Unknown Speaker: But that's all.
It just means you get to the Secretary.
There isn't any other consequence, is there?
Mr. Rogow: --It means you get to the Secretary ultimately.
If the State has failed to negotiate at all, then the court would say to the State, you have an opportunity now to conclude a compact within 60 days.
If the State still refuses to do that, then a mediator would be appointed.
The only compact submitted would be the tribe's compact, and then that would go to the Secretary.
Unknown Speaker: So is there even a case or controversy, do you think?
Mr. Rogow: Yes, there is.
The case or controversy is whether or not the State has acted in good faith, has negotiated in good faith, and that discrete fact is one that needs to be resolved for the rest of the process to work.
Unknown Speaker: Well, we don't have a case or controversy if two people disagree as to whether the sky is blue.
One person says it's cloudy, and the other one says it's blue.
I mean, that's a controversy, but it's not a case or controversy within the meaning of the Constitution.
There have to be some consequences that a court can impose, do there not?
Mr. Rogow: There do, and there are consequences.
Unknown Speaker: What are the consequences that the court can impose?
Mr. Rogow: If... and I think it's important to look at this on the flip side.
If the tribe sues the State and says the State has failed to negotiate in good faith, and the State wins, the tribe is absolutely foreclosed from the gaming that it seeks.
If the State loses, and the court holds the State has not negotiated in good faith, then the consequences are the State will be given one more opportunity to conclude a compact, but ultimately it will lose its opportunity to participate in the scope of gaming.
Unknown Speaker: Is there a finding now in this very case to the effect that the State acted in good faith?
Mr. Rogow: There is, Justice O'Connor, and that is presently being held in abeyance on appeal in the Eleventh Circuit, because if there was no judicial power to act in the first place, then that finding would have to be vacated.
Unknown Speaker: Mr. Rogow--
--And that finding is what?
Mr. Rogow: That finding is that the State of Florida did negotiate in good faith in this case.
Unknown Speaker: Well, why... that leaves the question why Florida is so interested in having the jurisdiction, but that's, I guess, not for you to answer.
Let me ask you this.
Could Congress, without a constitutional bar, impose... give the power to the district court to hold the State in contempt for failure to negotiate in good faith?
Mr. Rogow: Perhaps, but certainly it didn't do that here, and--
Unknown Speaker: What doubt is there, if there's jurisdiction?
Mr. Rogow: --Only in terms of federalism and concerns for federalism, and working with the lightest hand, being sensitive to federalism, but ultimately, of course, if Congress said, State, you must do something, and the State fails to do that, then yes, the contempt power would come into play, but the way this statute is constructed, it is sensitive to federalism.
Unknown Speaker: And who is held in contempt in that instance, Mr. Rogow?
Mr. Rogow: The public official, the State official who perhaps would have assumed the duty, but again, Mr. Chief Justice, that is not this statute, and that is not this case.
What we have is this carefully tailored statute that says to the State, who must act through State officials in order to negotiate, negotiate in good faith.
If you do not, you will lose the opportunity to participate in the scope of gaming because, and this comes back to Congress' plenary power over Indian commerce, because we could have done this without you, but instead--
Unknown Speaker: Mr. Rogow, when you were laying out the alternatives, it seems to me there's a third one that you didn't get to, and I'm having the difficulty some of my colleagues did in seeing how you're not better off without this scheme.
One scenario is what the Eleventh Circuit said.
That is, you're free of any obligation to deal with the State.
You just deal with the Secretary of Interior.
The other is, that's not the scheme Congress wanted, so the whole statute falls, and then where does that leave the tribe?
Suppose there is no Gaming Regulatory Act because it can't work the way Congress wanted it to work.
What then governs?
Mr. Rogow: --Justice Ginsburg, then we are back to Cabazon, and the States could engage in the gaming that the State already allows without any regulation by the States.
Unknown Speaker: The Indians.
Mr. Rogow: I'm sorry, the Indians, yes.
Unknown Speaker: So aren't they even better off losing?
Mr. Rogow: That thought has crossed my mind, Justice Ginsburg.
But we take the statute as Congress has written it, but it is true that if we lose this case, and if the State can preclude the lawsuit, and if the remedy of the Secretary going directly to the Secretary is really not a remedy, then we are back to Cabazon, and we are unregulated in Class III gaming, but we, of course, are subject to Congress' power just as the States are subject to Congress' power.
Unknown Speaker: So you're really defending Congress more than you are the tribe in the position you're presenting, because the tribe, I assume, would rather be free of any regulation, and if it has to be subject to some regulation, it would rather have just one instead of two regulators.
Mr. Rogow: That is absolutely true, Justice Ginsburg and, indeed, the tribes were not happy with the Indian Gaming Regulatory Act, because they preferred the Cabazon decision, which allowed them latitude more than the act does, and so yes, it is true that this argument is in many ways a defense of Congress' power, but if Congress doesn't have that power, yes, the tribes would be unfettered by State regulation.
The question is whether or not, under the statute as constructed, Congress can abrogate the State's Eleventh Amendment immunity.
Our position is, is that the plenary power of Congress under the Indian Commerce Clause does give it that power and, indeed, if that power does not exist, then Ex Parte Young works in this case because Ex Parte Young is based upon the duty of State officials to follow a federally enforceable right, and the Federal enforceable right here would be the duty to negotiate in good faith.
Unknown Speaker: Now, do you also rely on that Union Gas case?
Mr. Rogow: We do rely upon Union Gas.
Union Gas is an Interstate Commerce Clause case--
Unknown Speaker: Right.
Mr. Rogow: --in which the Court held that under the Interstate Commerce Clause, Congress has the power to abrogate Eleventh Amendment--
Unknown Speaker: And do you take the position that this could also be decided under the Interstate Commerce Clause and Union Gas?
Mr. Rogow: --We do believe that.
We had argued that below, that the Interstate Commerce Clause was another basis for Congress enacting the Indian Gaming Act, but the Indian Commerce Clause, it seems to us, is the stronger basis for this and, indeed, I think the Indian Commerce Clause is even stronger than the Interstate Commerce Clause when one looks at Union Gas in terms of supporting the abrogation power.
The Indian Commerce Clause is a change in the relationship between the States and the United States and the Federal Government by giving plenary power to Congress in the area of Indian commerce.
Unknown Speaker: Well, what do you understand the Union Gas case to stand for, Mr. Rogow?
Mr. Rogow: That under Article I, Congress has the power under the Interstate Commerce Clause to abrogate State Eleventh Amendment immunity.
Unknown Speaker: And it doesn't stand for anything more than that, does it, because there was no opinion for the Court?
Mr. Rogow: It stands for only the proposition that I have advanced--
Unknown Speaker: Yes.
Mr. Rogow: --yes.
It was a 4 1 4 decision.
But the Indian Commerce Clause is even more powerful than the Interstate Commerce Clause.
Indeed, this Court has used forceful and strong language in talking about Congress' power under the Indian Commerce Clause.
Unknown Speaker: You don't need a negative Indian Commerce Clause.
It's all there, really.
Mr. Rogow: That's true.
Unknown Speaker: It's actually written down.
Mr. Rogow: It's all plenary and exclusive, and the Court has said that with the adoption of the Constitution, Indian relations became the exclusive province of Federal law, and this is important, too.
In the Seminole Nation case at 316 U.S. at page 296, the Court talked in these terms There's a distinctive obligation of trust towards the Indian tribes, moral obligations of the highest responsibility and order, and this language adds great credence to the strength of the Indian Commerce Clause.
Indeed, the State's brief at page 23 concedes that there are no limitations upon Congress' authority under the Indian Commerce Clause.
Congress' power under that clause is complete.
Unknown Speaker: No limitations as to their power over Indians, not over States.
They don't agree that... there's no limitation of Congress' power over the States.
Mr. Rogow: That is true, Justice Stevens.
Unknown Speaker: Yes.
Mr. Rogow: They would like to read it only one way, but the Indian Commerce Clause, when one looks at the history of it, clearly was a taking from the States of any role in Indian commerce in favor of the United States.
Unknown Speaker: Well, but there's a difference between assigning powers and functions between the two branches of Government, in this case all to the national Government, and from going the further step of saying that this allows the national Government to order the States to invoke their political processes in behalf of a national goal.
I simply know of no precedent for that, unless you can show me one.
Mr. Rogow: All that the States are being ordered, Justice Kennedy, is a duty... is to negotiate with the tribes to serve, indeed, the State's own goals, and--
Unknown Speaker: Well, but that's maybe something the States disagree with.
They're being asked to invoke their official processes, their official political machinery in pursuit of a goal that they may not agree with, and I know of no precedent for that.
Mr. Rogow: --I can think of no precedent that directly addresses that, but to the extent that your question brings into focus a Tenth Amendment kind of problem, there is no commandeering here.
This is, unlike the Tenth Amendment cases, which talk about a duty to regulate, imposing a duty to regulate, or a duty to legislate, this is a duty to negotiate.
This is sensitive to the etiquette of federalism.
This is just the kind of delicate balancing that falls on Congress' Supremacy Clause power side to do that which is necessary to fulfill all of its--
Unknown Speaker: Well, I think both the Eleventh... the Eleventh Amendment and Tenth Amendment seem to merge somewhat in this area, and I have a problem under Ex Parte Young, too, because it seems to me that, unlike Young, where you're asking the State to refrain from engaging in a certain action, here you are commanding the State to invoke its formal machinery, and that's not Young, either.
Mr. Rogow: --Young is built on the premise that there is a Federal duty, and there are other cases... Morales v. Texas, a Federal Airline Deregulation Act, Green v. Mansour, Edelman, dealing with welfare rights laws, in which the Court has utilized Ex Parte Young to compel a State to follow Federal law.
Unknown Speaker: Well, it's somewhat the difference in mandatory and prohibitory injunctions which is not particularly satisfactory, but here... in Young, the only Federal duty was not to interfere with a right, and that's quite different from saying that you must participate in this scheme.
Mr. Rogow: Justice Kennedy, here, the Federal duty is to follow the will of Congress, which has plenary power, and... and this is the ironic part of this case... participate in the scheme.
That's why I've said that this statute is sensitive to the interests of federalism.
It is different from Ex Parte Young, but not different enough to make a difference in the outcome.
I'd like to reserve the balance of my time for rebuttal.
Unknown Speaker: Very well, Mr. Rogow.
General Days, we'll hear from you.
Argument of Drew S. Days, III
Mr. Days, III: Mr. Chief Justice, and may it please the Court--
This Court has, in a number of decisions, recognized that the Ex Parte Young doctrine strikes an uneasy balance between the interest in respecting State sovereignty on the one hand while on the other vindicating federally afforded rights.
It is an effort to give life to the Supremacy Clause.
We think that the Ex Parte Young doctrine can be used effectively by this Court to support what Congress has done in attempting to address a very difficult question over Class III gaming on Indian lands.
What we have here is a federally imposed duty, and let me underscore the fact that the federally imposed duty upon the State is to negotiate in good faith.
It in no way requires a State to commit its resources, or its regulatory, or its legislative institutions to carrying out a Federal program--
Unknown Speaker: Suppose a State law required that all compacts be ratified by the legislature.
Then it would have the effect that you say it doesn't.
Mr. Days, III: --Only if the State wishes to get to the point where it enters into a compact.
Unknown Speaker: Well, but I... the court can command the State to do this.
Could the United States command the State of California to negotiate with it for the location of a military base, enforceable by a court order, contempt if they don't?
Mr. Days, III: Could the United States?
Unknown Speaker: Yes.
Mr. Days, III: I think the United States could require that there be a meeting to discuss that issue, which is what is--
Unknown Speaker: Would you be held in contempt if you don't go to the meeting?
Mr. Days, III: --I think that what we would have there would be a Tenth Amendment problem, where in effect what the Government was doing was placing the State in a position where it was being coerced.
There's no coercive effect under IGRA with respect to the State's involvement.
Unknown Speaker: But the question kind of poses the problem that's here.
The United States can take any bit of land it wants to in the State of California or in any other State by a process of condemnation for a military base.
What is gained by requiring as a matter of law that California sit down to negotiate?
I mean, if they negotiate they may be able to get a better deal for themselves than trying the question of value to a jury, but what is gained by simply dragging them into a process where they really don't have much leverage?
Mr. Days, III: Once again, there's a question of whether there's a dragging in here, but we're talking about a situation where Congress has a responsibility to see to the development of economic self sufficiency on the part of tribes that they are able to maintain their well being, and that there are strong tribal governments.
This arrangement allows the tribes and the States to sit down and talk about these issues.
Unknown Speaker: But if the State says, I'm not going to... I don't want to talk, and the tribes can go directly to the Secretary of the Interior, what is gained by saying, even if you don't want to talk, you have to talk, even though you won't get anywhere, and we have superior power anyway if you can't reach an agreement?
Mr. Days, III: Mr. Chief Justice, all it does is invite the State to negotiate.
If the State does not wish to participate--
Unknown Speaker: But it doesn't invite, it commands.
Mr. Days, III: --Well, the direction is that they sit down, and--
Unknown Speaker: Well, it commands them to sit down.
Mr. Days, III: --allow these issues to be aired between the State and the tribe.
Unknown Speaker: Could you hold the State in contempt for refusal to negotiate, in your view, if Congress provided that sanction?
Mr. Days, III: Not under IGRA.
There's no indication that Congress has exercised that authority.
Unknown Speaker: No, no, no.
Could Congress constitutionally enact a statute, or amend the statute to require that Federal courts hold Governors in contempt who don't go to the meeting?
Mr. Days, III: I think that that would be possible, yes.
Unknown Speaker: I think that would follow from your position.
Mr. Days, III: Yes.
Unknown Speaker: General Days, what remedy do you say is available under Ex Parte Young here?
Mr. Days, III: What remedy is available?
Unknown Speaker: Yes, what--
Mr. Days, III: The remedy available here is an order from the court that says that there has been or has not been negotiation in good faith.
The consequence of that is that, as my brother has indicated, if the determination is that the State has negotiated in good faith, then the tribe cannot have Class III gaming without agreeing to what the State has proposed.
If it's found that the State did not negotiate in good faith, then the State gradually loses its opportunity to participate in the process.
Unknown Speaker: --You mean, you then... you just use Ex Parte Young for that initial failure to negotiate in good faith and then you go over to the rest of the statute from there?
Mr. Days, III: That's correct.
It's... what, in fact, Congress has done in a sense is codify the Ex Parte Young approach.
Unknown Speaker: Well, but it doesn't.
I mean, the fact is that Congress could have used language that summons up Ex Parte Young, but it really speaks of initiating a cause of action requesting the State to enter into negotiations, and it constantly says... refers to the State.
If the State and the Indian tribe fail to conclude.
It's not using Ex Parte Young language at all.
Mr. Days, III: So does the Fourteenth Amendment, but this Court in its Ex Parte Young jurisprudence has indicated that as, for example, in Home Telephone and Telegraph--
Unknown Speaker: Sure, but--
Mr. Days, III: --that States act through persons.
Unknown Speaker: --Yes, but we must never forget, it's a Constitution we're construing when we're talking of the Fourteenth Amendment.
You don't expect it to be in the detail that a statute is, but this is a very detailed statute, and it refers to a State and the Indian tribe, and it seems to me just contrary to the... you pull in Ex Parte Young, as our opinions say, when there's no other way to achieve vindication of the Federal interest.
It's... in fact, however, Congress has specified how in its view the Federal interest was to be vindicated, and it seems to me it was by suit against the State.
That's either good or bad.
Mr. Days, III: Yes, well--
Unknown Speaker: And if it's bad, I'm not sure that we are free under Ex Parte Young to invent a different way of vindicating that interest.
Mr. Days, III: --Well, we certainly support the view that the abrogation by Congress of the State's Eleventh Amendment immunity is a very clean and, we think--
Unknown Speaker: I understand.
Mr. Days, III: --proper way of resolving this case--
Unknown Speaker: But if--
Mr. Days, III: --but this Court has under some circumstances looked at the Eleventh Amendment issue and decided that a proper balance can be struck more effectively by using the Ex Parte Young approach.
Unknown Speaker: --No, but do you know of any case where Congress has made the legislative determination that the matter should proceed by a suit against the State and we say, well, that may be unconstitutional, or it is unconstitutional, but we will let you instead, despite what Congress provided, proceed by a suit against--
Mr. Days, III: The answer is no, but in those instances where the Court has not been clear as to exactly what Congress intended, or had some doubt about the effectiveness of what Congress had in mind, it has resorted to the Ex Parte Young approach.
Unknown Speaker: --And what do you do in the case that we're holding for this case, where Ex Parte Young will not give you jurisdiction over the only body that is authorized to negotiate the contract?
I understand that to be the situation in the Kansas case, where the compact can only be made by the legislature.
Is that... are we going to rehear this same argument for that case, and having used Ex Parte Young to get rid of this one, then decide for the next case what other theory might--
Mr. Days, III: No.
I think that it is a matter of State determination, State law determination as to who has the authority to negotiate under these circumstances, and IGRA would simply respond to that State determination.
The process begins by--
Unknown Speaker: --So there's no remedy so long as the State does not allow its Governor to enter into a compact, is that what it comes--
Mr. Days, III: --No, that's not the case.
The case is that other parties--
Unknown Speaker: --Under Ex Parte Young, I mean.
Under Ex Parte Young.
Mr. Days, III: --Well, Ex Parte Young doesn't require that the Governor be sued.
Unknown Speaker: Can you sue the legislature under Ex Parte Young?
Mr. Days, III: I think that it is a way of suing that official who has the authority to sit down and negotiate.
Whether that person--
Unknown Speaker: It's the legislature.
The legislature approves compacts.
Can you sue the legislature under Ex Parte Young?
Mr. Days, III: --I know of no situation where that has been--
Unknown Speaker: Gee, I'd be amazed if you could sue the Legislature.
Mr. Days, III: --But I do know situations, and this Court has had many, where the suit has been against a State official with the understanding that the only way the rights could be vindicated were by legislative action within the State, and that particular factor was not viewed as any impediment to rely upon the Ex Parte Young doctrine.
Unknown Speaker: So you would pick... in effect you would pick an appropriate State negotiator, or an appropriate State official to sue as a negotiator in Kansas, and you would perfectly well understand that that gets the statutory process going, even if it would ultimately... even if there would ultimately be no compact on the theory that the legislature wouldn't accept what the official had negotiated.
Mr. Days, III: Yes, that's correct.
That would be the approach.
Unknown Speaker: Like Howell v. McCormick, only you'd have some stand in for the State legislature, like the doorkeeper.
Mr. Days, III: That's correct.
Thank you very much.
Unknown Speaker: Thank you, General Days.
Am I pronouncing your name correctly?
Argument of Jonathan A. Glogau
Mr. Glogau: It's Glogau, Your Honor.
Unknown Speaker: Glogau.
Mr. Glogau: Mr. Chief Justice, and may it please the Court--
Congress does not have the authority under the Indian Commerce Clause to subject the State to suit in Federal court, nor does Ex Parte Young allow a suit against the State official when in reality you are suing the State.
Justice Scalia, in answers to your questions, these cases are in fact against the State.
The statute commands the State to act.
The remedy that is provided is directed right to the State, so just on its surface the statute addresses the State.
Unknown Speaker: Mr. Glogau, would you explain from your perspective why it makes sense for Florida to be opposing this scheme when the alternative seems to be no role for the State at all?
Isn't it true that before the Indian Gaming Regulatory Act the States were out of this picture because of this Court's precedent?
Mr. Glogau: Your Honor, the State is not completely out of the picture in that situation.
Public Law 280 allows us to enforce our criminal laws on the Indian reservation, so in that respect--
Unknown Speaker: But you can't stop the kind of activity, assuming that it meets all your other laws that are otherwise applicable, you can't say, no casino on this reservation.
Mr. Glogau: --Well, we can say no casino because, as Judge Marcus found in the district court, casinos are not permitted in Florida.
However, the reason that we're here is not a gambling issue.
Unknown Speaker: That's a fact question... well, that's a question on which you're divided, what permission means.
Mr. Glogau: Well, that... permitted means in our--
Unknown Speaker: But in the event, to the extent that gambling is permitted in Florida, the State could have no control over what is done on the reservation, so how are you aided by getting out of this process?
Mr. Glogau: --Your Honor, we are not aided in respect to gambling as... per se, as an issue.
The reason we are here is because this case speaks more to the question of federalism and the relationship between the States and the Federal Government rather than whether or not we're going to have gambling in Florida.
That's a separate issue to be litigated, and is being litigated separately.
Unknown Speaker: I had thought from your brief that your answer to Justice Ginsburg's question was simply because Floridians are proud--
--and we'd rather have the Federal Government write the law than to have us pretend to write it as a flunky of the Federal Government, subject ultimately to overruling by the Federal Government anyway.
Isn't that it?
Mr. Glogau: That--
Unknown Speaker: Floridians are proud.
Mr. Glogau: --That's--
Unknown Speaker: I would understand that if they weren't also practical.
The point is--
--you did begin to negotiate, and then saying... I thought, well, why isn't this just like the Spending cases, the carrot?
If the State takes it, it's got to play by the Federal Rules.
Here, you didn't have to negotiate, or at least that could be the State's position.
Mr. Glogau: Well, Your Honor--
Unknown Speaker: But you once... you were in negotiation.
Then you reached an impasse.
Mr. Glogau: --Well, first of all, the State has to negotiate under the statute.
The statute says, you shall negotiate in good faith.
Unknown Speaker: But Florida doesn't accept that under your argument, right?
Mr. Glogau: No, what we don't accept is... and going back to your Spending Clause question, under the Spending Clause cases, the remedy for not doing what the Federal Government wants you to do because you've taken the money is not to give you the money.
The remedy given here is, if you don't do what we want you to do, we will sue you in Federal court.
The Eleventh Amendment and our sovereign immunity prevents us from being held before a Federal court without our consent.
That is the essence of sovereign immunity.
Without consent, we cannot be sued, and we have not consented here.
Under the idea that we negotiated so therefore we take the benefit, that's an idea that comes out of this Court's case in Parden, and I submit that we... in Parden, the State of Alabama engaged in the business of an interstate railway years after the FELA had been passed, and so they could be considered to have looked at that and said, okay, if we do this business we will subject ourselves to the jurisdiction of the Federal court, waiving their sovereign immunity.
We don't have a choice here.
We're given the choice of either negotiating in good faith and being sued, or not negotiating at all and being sued.
That's no choice at all, Your Honor, and so therefore the Parden type of consent can't be found in this situation.
Unknown Speaker: Well, why isn't it this way, that if you want a role in this process, then you opt into this regime.
If you don't want a role in it, then you just stay out of it, and then the Federal regulation will take over, or there will be no regulation and Congress will write a new statute.
But once you opt into it, then why aren't you stuck by--
Mr. Glogau: Because, Your Honor, we have no option to opt in or out.
The statute says you shall negotiate in good faith.
If you do not, you will be sued and an order will be issued by a Federal judge saying, you shall conclude a compact within 60 days.
That is the statutory remedy.
We are not given a choice to opt out.
Unknown Speaker: --And then what happens if you don't?
Mr. Glogau: We are, as Justice Kennedy was alluding to before, even though the statute doesn't specifically give the court contempt power, certainly a Federal court has the inherent power to hold a State official in contempt if he thumbs his nose at a Federal court order, which is what you're suggesting that--
Unknown Speaker: It's your position that it does have that power, then.
Mr. Glogau: --Excuse me?
Unknown Speaker: It is your position that the Federal court would have that power over Florida if the statute is valid.
Mr. Glogau: If the statute is valid and the State can be sued, or if the Governor can be sued under Ex Parte Young, yes, a Federal judge certainly has the inherent authority.
Unknown Speaker: Right, no question about Young, but you're saying if, in fact, there is the power under the Commerce Clause or any other theory, the State itself could be held in contempt.
Mr. Glogau: I would... yes.
The court has inherent authority to enforce its orders, and that's the way I understand a Federal court would enforce an order, and that is to hold--
Unknown Speaker: Oh, I would think you wouldn't want to take that position.
I mean, this might occur, and I can't imagine that you'd want to stand here and advocate that the State can be held in contempt under this scheme, which doesn't provide for it at all.
That's not this scheme.
Mr. Glogau: --Well, this scheme mandates that the State act, and so--
Unknown Speaker: Yes, but there are no teeth in it.
The consequence of not acting by the State is, it gets to the Secretary and the Secretary acts.
Mr. Glogau: --Well, Your Honor, then, if there's no teeth in this, and there's no order that can be enforced, why did Congress provide for a lawsuit?
If the State simply can say, we don't want to play--
Unknown Speaker: It's a very peculiar statute--
Mr. Glogau: --I couldn't agree with you more.
Unknown Speaker: --and I think we'd have to ask Congress about that.
Mr. Glogau: Well, but the point is, Your Honor, if Congress considered the State to have an option just not to be involved at all, then there was no point in having a lawsuit provision.
It's merely... the Congress should have written a law... if that was their intent, Congress should have written a law to say, if the tribe wants to have casino gambling or Class III gambling in the State, then they approach the State and ask the State if they want to be involved.
Unknown Speaker: Well, I think that this law was passed at the urging of some States that wanted to have some say in this process, and under our jurisprudence here they in fact had no say, and as Justice Ginsburg has been discussing with you, to engage in the process gives the States a lot more than they would have if we say the law is invalid.
Mr. Glogau: That would be true, Your Honor, if we were given the choice.
We are not given the choice here.
We are ordered by the statute to invoke the discretionary machinery of the State in negotiating a compact.
If we do not, we are subject to the full panoply of judicial power that is wielded by a Federal judge.
Unknown Speaker: In this case it's already been decided that Florida negotiated in good faith.
Mr. Glogau: Your Honor, the timing of the decisions is peculiar... even more peculiar than the statute.
We had... the motion to dismiss was denied by the district court.
It went on appeal to the Eleventh Circuit.
While it was pending at the Eleventh Circuit we got an order on summary judgment from the court below.
Only after we were found to have complied with the statutory requirements did the Eleventh Circuit then say, there's no jurisdiction.
But the point is that the reason we're here, as I said to Justice Ginsburg, the reason we're here is not because of gambling.
We are here because of the sovereign immunity of the State.
Unknown Speaker: But we don't sit to decide abstract questions of sovereign immunity.
I mean, there has got to be some real life consequences.
What's the present status of the finding that you negotiated in good faith?
Mr. Glogau: That is pending on appeal, which has been abated pending the outcome of this proceeding.
Unknown Speaker: I take it, is there an interest that the State and its Governor has in 1) not participating in a regime that they consider an unconstitutional violation of the Federal scheme and 2) that the Governor has an interest in not authorizing gambling which is prohibited by his State.
Mr. Glogau: Well, I think the State has an interest in both of those things.
We have an interest--
Unknown Speaker: That's what I'm suggesting.
Mr. Glogau: --Right.
Well, we have an interest in protecting the sovereignty of the State by addressing the constitutionality of a statute like the Indian Gaming Regulatory Act, but on the other hand, you're correct that we do have an interest in preventing gaming that is not already permitted in the State.
However, we had that authority even without the Indian Gaming Regulatory Act, as I mentioned before.
Unknown Speaker: Don't you think you have it under the statute as well?
Doesn't the... isn't it your view that the statute merely authorizes Indian gaming that the State also authorizes?
That's your view of the statute, is it not?
Mr. Glogau: That is correct.
That's the view of the Ninth Circuit in the Rumsey case which was recently decided, but the point is that although Congress has the authority to regulate Indian gambling under its complete authority under the Indian Commerce Clause, they still must do it in a way that is constitutional and is permissible, and our position is that there are a myriad of ways that could have been done properly that were suggested in the Court's opinion in New York v. United States.
There are a myriad of ways that the Congress can cajole the States, or give them the opportunity to take action like this, but that doesn't mean that because there are right ways and proper ways to do it, that you can allow them to do it in a way that is unconstitutional.
That's why we're here.
Unknown Speaker: Your position is that being required to negotiate is itself a harm to the State, regardless of whether, down at the end of the road, if you fail to do that there are other harmful consequences.
That, in and of itself, is a harm.
Mr. Glogau: That's correct.
That's a violation of the Tenth Amendment, which reserves to the States their sovereign authorities, and--
Unknown Speaker: Not the least of those harms being that if a gambling establishment is instituted, it ought to be very clear that it was done by the Federal Government without the participation of the States if the States object.
Mr. Glogau: --That's correct.
The Federal Government, the Congress in this situation, has avoided the political responsibility of taking charge of gambling on an Indian reservation and foisted it upon the State officials, and that's a clear Tenth Amendment violation, as the Court wrote in New York v. United States.
Unknown Speaker: If, in fact, Congress passed a statute which said States in certain instances will recognize labor unions among their employees, and the State government will, in the case of a disagreement, negotiate in good faith before anyone goes out on strike or lockout, and that in your view would violate the Tenth Amendment?
Mr. Glogau: If the remedy is to order the State to conclude a contract with the employees--
Unknown Speaker: And they couldn't turn it over to the Labor Board and say you will, in fact, find an unfair labor practice and issue an order, require bargaining in good faith.
Mr. Glogau: --I think that would violate the Tenth Amendment.
Unknown Speaker: Okay.
My other question which I wanted to ask was... you started off on this, and I'd appreciate you getting back to it, which was this problem of Ex Parte Young.
To focus it a little bit, I thought that maybe Ex Parte Young does make the Eleventh Amendment mostly a formal requirement.
It says, you can go sue the officer.
They're all suits against the State in reality, aren't they?
But it reserves one area where you can't, and that's the area where the Treasury is involved.
So to look at it naively, you'd say yes, Ex Parte Young says sue the officer, not the State.
They're all suits against the State in reality.
Mr. Glogau: Well, Your Honor.
Unknown Speaker: But that's what it says, it's there, and so I could understand a reading of it which says, sure, go sue the officer except where the Treasury is involved, because that's too much the State.
Now, if I... what's... I'm putting this so that you can tell me why that's wrong and argue against it--
Mr. Glogau: Well, Your Honor--
Unknown Speaker: --which is where you wanted to go, I think.
Mr. Glogau: --Yes.
With regard to Ex Parte Young, if... the question of whether it's a case against the State does not turn solely on the question of whether we're seeking damages or prospective relief.
That interpretation of the Edelman case has been specifically disavowed by this Court in two cases, Cory v. White and the Pennhurst case, and in the most recent, the Hess case--
Unknown Speaker: But I mean, they left a little curlicue on that, but... which I don't think is relevant here, or maybe it is, but why shouldn't you view it basically that way, with the little curlicue of Pennhurst, which was pendant jurisdiction, et cetera?
Mr. Glogau: --Well, because there are situations where a suit against a State official is an attempt to invoke the sovereignty of the State and to order the State to invoke its sovereign machinery the way that Justice Kennedy suggested.
Unknown Speaker: They're all that.
Isn't Ex Parte Young all that?
It's telling a State officer, you go in your capacity as State officer and follow the Federal law.
Follow the Federal Constitution, follow a Federal statute, do that which Federal law tells the State to do.
Mr. Glogau: Well, I don't see it that way, because what Ex Parte... injunctions under Ex Parte Young tell the State official not to do that which he is not permitted to do, and I think there's a difference there.
And the other thing is that in the balance that is that makes Ex Parte Young necessary, and Mr. Rogow referred to it, that balance between the State sovereign immunity and the vindication of Federal constitutional rights, where the Constitution is being violated, that balance tips in favor of allowing the State official to have his immunity stripped and allowing an injunction to be issued against him.
Where there is no constitutional violation, that balance tips in favor of protecting the State's sovereign immunity.
In Ex Parte Young, Attorney General Young was being ordered not to continue activity that was deemed to be unconstitutional.
In Young and all of its progeny, from what my research shows, all of those cases involve violations of the Constitution, and so the balance in those cases tips toward stripping the immunity.
Without the constitutional violation, the balance tips in favor of protecting the State's sovereign immunity.
In this case--
Unknown Speaker: I thought Young applied to violations of statutes and regulations as well as the Constitution?
Mr. Glogau: --Your Honor, the language in some of the cases says constitutional or Federal law.
However, when you look at the facts of each one of those cases, each one of them involves a violation of the Constitution.
Unknown Speaker: You say there are no Ex Parte Young line of cases that involve a statute and not the Constitution.
Mr. Glogau: --Not that I've found, Your Honor.
In Edelman v. Jordan, for example, the Illinois Public Code set up a method of paying benefits under the AABD program.
The Federal Government had regulations that told the State how it was supposed to do it.
That conflict between the two sets of regulations set up a Supremacy Clause violation allowing for--
Unknown Speaker: Well, of course there's a Supremacy Clause issue--
--Whenever a State disobeys a--
--there's a Supremacy Clause--
--the constitutional provision you're relying on, then there is a line of statutory cases.
Mr. Glogau: --Well, I'm... I'm not--
Unknown Speaker: What was the provision in Young, other than the Supremacy Clause?
I haven't read... if it... wasn't Young arguing about tariff rates?
Mr. Glogau: I think, again, it was the Supremacy Clause, although I'm not sure.
Unknown Speaker: That's what I think it--
Mr. Glogau: However, Justice Scalia, I'm not sure that the... and Justice Stevens... that the cases where the statutory problem is raised is not also a constitutional problem.
Supremacy Clause cases involve conflicts between State and Federal law.
We don't have a conflict here.
There's no conflict between State and Federal law.
There's no statute or regulation of the State of Florida that's being alleged to be in conflict with the Federal law.
Unknown Speaker: --There will be before the suit commences.
That is, the Federal... the State will not be negotiating in good faith as Federal law requires.
I thought that your major point about Ex Parte Young was simply that Ex Parte Young is... has not been applied as a substitute for a statute which on its face authorizes suit against the State.
Mr. Glogau: That's true.
What... the use of Ex Parte Young in this situation is simply an attempt to circumvent the invalid remedy provided by Congress, and that's not something that Ex Parte Young is designed to allow.
Ex Parte Young is designed to allow the balance of sovereign immunity versus the Constitution to be vindicated.
However, in this situation that balance is not... does not point toward allowing a suit against the State official.
Unknown Speaker: May I ask a question, because I must confess I have some difficulty seeing why both of you wouldn't be better off if your opponent won when you get all through with the case.
And so it's a little tricky, but going back to Justice Kennedy's question about the political responsibility for the decisions, and Florida has an interest in not being forced to take political responsibility for something that the Federal Government wants to impose on the parties.
But don't you avoid that simply by just staying out of the process entirely, just saying I won't negotiate?
Don't you then end up with the clear identification of the political actor who's responsible for the end product, namely the Federal Government?
Mr. Glogau: Well, if--
Unknown Speaker: Don't you have an option to either take responsibility, or let the Federal Government have the responsibility?
Mr. Glogau: --I don't see how you can read the statute as giving us an option.
It says, you shall negotiate.
Unknown Speaker: Yes, but it tells what happens if you don't, and the things that happen if you don't end up by letting the Federal Government run the show.
Mr. Glogau: Except to the extent that if you're impugning the dignity of a Federal court by ignoring its orders, you are subject to the full panoply of the power of the Federal judge.
Unknown Speaker: Well, even if you're not, you're violating a valid Federal law.
I assume Floridians don't go around doing that.
Mr. Glogau: We try not to.
Unknown Speaker: The suggestion that was just made to you suggests that Florida should knowingly violate a valid Federal law.
Florida doesn't do that sort of thing, does it?
Mr. Glogau: No, we don't.
Unknown Speaker: Well, but you can negotiate in good faith, quite reasonably just disagree with the outcome, and then the political responsibility would end up for the Federal Government.
Mr. Glogau: Well, we could negotiate--
Unknown Speaker: In other words, you could negotiate and say we want no title III gambling other than that which we already permit in other parts of the State, and they may say they want more.
You have a perfectly reasonable position.
You insist on it, it fails, then the end result of the process is the Federal Government would decide one way or the other.
I think that is the way it would come out.
Mr. Glogau: --Well, but the statute isn't written that way.
The statute is... if we negotiate in good faith, which Judge Marcus below--
Unknown Speaker: Said you'd done--
Mr. Glogau: --found that we had, then the tribe has no opportunity to go to the Secretary of the Interior.
However, the remedy of having an order coming from a Federal judge ordering us to conclude a compact... you see, this is different from the labor relations area, because in the labor relations area, I believe the order would be, sit down and talk, and you can still come to an impasse.
Here, the order is, you shall conclude a compact within 60 days.
Unknown Speaker: --The statute says, and if you don't, then there's this mediator, and then there's the Secretary--
Mr. Glogau: --Well, here--
Unknown Speaker: --so the statute really isn't saying, you must conclude a contract.
It's saying, you've got 60 days to do it, and if you don't do it, then we go on to these further steps.
Mr. Glogau: --Well, again, the next step is another coercive order from the court ordering the State to provide its last best offer of a compact.
Once again, what if the State simply refuses to do that?
Are we simply... is the court simply going to say, well, okay, the State doesn't want to play in this game, or is the court going to say, you must obey my order?
Unknown Speaker: But there's no lawsuit for that.
The only lawsuit, as I understand it, is over the duty to negotiate in good faith.
Mr. Glogau: Well, once the court has jurisdiction, can't it issue an order... can't it issue an order enforcing its previous order?
Unknown Speaker: Why can't we read the statute to avoid any clash by simply saying, and then if the State doesn't submit its order, the mediator has just one order before it, and so that's... why would we want to imply further coercion into the statute when it's not there explicitly?
Mr. Glogau: Well, I think it is there explicitly.
It says, shall.
Unknown Speaker: It says, shall order.
It says, the court shall order the State and the Indian tribe to conclude such a compact.
Mr. Glogau: That's correct.
Unknown Speaker: Then if you think the statute is valid, I assume you would have no choice, if you're law abiding, except to do what the statute says you are ordered to do.
I don't really think you have an option to not do it and then no harm ensues, unless you're a scofflaw.
Mr. Glogau: Well, that's exactly our position.
We are ordered to comply and we have no choice in the matter, and--
Unknown Speaker: Well, when you read what Congress wrote, Congress said shall, and then it said, but if you don't, then we have another means of... it doesn't say you shall do it... but then it doesn't say the court will hit you over the head or fine you or anything.
You shall, but if you don't, then a mediator will decide, and if there's nothing for the mediator to decide, the Secretary will decide, so there's no teeth at all into you shall reach an agreement.
If you don't reach an agreement, nothing happens.
Mr. Glogau: --If the statute had said, you may negotiate and if you can't come to an agreement then you may submit to a mediator, and if... then if you don't submit to the mediator then the issue can go to the Secretary of the Interior, if that's what the statute said, I would agree with you 100 percent, but it simply doesn't say that.
It says, you shall, and I... the State--
Unknown Speaker: Would it be open to us to construe the word shall to mean may, because it's the only way the whole statute makes any sense, to avoid this terrible constitutional problem here we're being asked to submit an offer?
It really doesn't seem to me there's much at stake here.
You figure out what the best deal you could possibly go along with this, and you put it on paper, and you--
--It isn't really just shall may.
You'll have to interpret order to mean, instead of the court shall order the State, you'll say the court shall invite the State.
We have to interpret order to mean invite, which is something of a leap.
Mr. Glogau: --I agree with you, Justice Scalia.
I think interpreting shall as may, being the son of an English teacher, is something of a leap as well.
However, the ability to subject the State to suit in the first instance, which is the main question that's presented here, raises serious Eleventh Amendment problems.
Going back to Pennsylvania v. Union Gas, that case, decided on the Interstate Commerce Clause, was not decided simply on the basis that the State... the Federal Government has plenary authority.
There was more to it than that.
There was a waiver in the plan of convention that figured into this fundamental... the fundamental structure of the Federal Government and the relationship with the States, so applying the doctrine from Union Gas to the Indian Commerce Clause presents problems.
In the Cotton Petroleum case, the Court recognized that these are very different clauses, and in the plan, in the adoption of the Constitution, Chief Justice Marshall in the Cherokee Nation case said that they were considered completely separately, so simply importing this determination that Congress has the authority under the Interstate Commerce Clause to the Indian Commerce Clause I think is wrought with difficulty.
Unknown Speaker: Well, if the Court were to conclude that Ex Parte Young fits here, then I guess we wouldn't have to even address Union Gas.
Mr. Glogau: Yes, that is true, as long as we agree that you can use Ex Parte Young in an effort to fix an unconstitutional remedy that the Court... that Congress has created, which as, you know, Justice Scalia indicated, that's not what Ex Parte Young is for.
Unknown Speaker: Well, we might not have to use it in this case, with the exception you've just mentioned, but in the next case we might have to go beyond Ex Parte Young.
Mr. Glogau: Right.
In the next--
Unknown Speaker: That is to say, in the case where there is no officer who can be sued who has the authority to conclude the compact.
Mr. Glogau: --Well, this is true, and--
Unknown Speaker: Like in Kickapoo--
Mr. Glogau: --The Kansas--
Unknown Speaker: --Kansas v. Kickapoo, or something of--
Mr. Glogau: --That's correct.
Unknown Speaker: --So we would dodge the bullet for one day, or one term.
Mr. Glogau: You also--
Unknown Speaker: If we had to take that case.
Mr. Glogau: --Well, yes.
Unknown Speaker: I mean, I take it that the Indians are satisfied with their remedy in that case they won, and I take it in the future they'll all sue the officers.
Is there any reason... I mean, I know this is going beyond this, but I wondered if you have any--
Mr. Glogau: I really... I can't speak for the Kansas--
Unknown Speaker: --No.
Mr. Glogau: --case, but you are going to be faced with this question in a different context in the Merchant Bank case, which has now been petitioned for cert, under section 106 of the Bankruptcy Act... does Congress have the authority under the Bankruptcy Act to abrogate the State's sovereign immunity +/?
so that question is squarely before you today.
It's coming up in other contexts because of the holding in Union Gas.
The holding in Union Gas has encouraged Congress to find the authority to abrogate State sovereign immunity in any Article I power, and that type of extension of Union Gas is unwarranted, I think, and in Justice Scalia's words in the dissent in Union Gas, that--
Unknown Speaker: Dissents don't count for a lot.
Mr. Glogau: --Well, actually, in Union Gas maybe it does, since it was a 4 1 4 decision.
Unknown Speaker: Mr. Glogau, I think we can find that language, but from your perspective, if this whole thing were voluntary on Florida's part, here's the machinery, if you want to negotiate, negotiate, if you don't want to, this is what happens, that would be all right.
There'd be no Eleventh, Tenth Amendment problem, right?
Mr. Glogau: That's correct, if it was truly voluntary.
Unknown Speaker: But it also would give the State no clout.
Mr. Glogau: Well--
Unknown Speaker: In other words, the tribe can then say, forget it.
We're not interested.
Mr. Glogau: --Well, in this--
Unknown Speaker: We'll get a better deal from the Secretary.
Mr. Glogau: --Right, but the problem is the way you're suggesting we construe the statute also upsets the balance that Congress thought it was creating in this statute because the States--
Unknown Speaker: Is there any way that Congress can give the States a role in this that would work?
Mr. Glogau: --Well, they could give the option to the State to be involved in Indian gambling, and specifically... specifically require, as in the Parden case specifically require that if you want to be involved in Indian gambling regulation, you must submit a waiver to the constitutional sovereign immunity of the State so that we can assure that there is evenhanded bargaining at the bargaining table.
That is not what this statute does, though.
Unknown Speaker: Could Congress also provide that there shall be no gambling unless the State of its own will makes a compact with the Indians?
Mr. Glogau: Yes.
The Congress has absolute authority over the Indian tribes and absolute control over what happens on Indian lands.
If that is their wish to create that kind of a regulatory structure, that is within their power.
Unknown Speaker: May I ask just... I'm really having trouble sorting all this out, because it is a complicated statute, but if you should prevail and we buy everything you've argued as correct, would that nullify... as a practical matter nullify the entire statute and put you back in the pre 1988 law?
Mr. Glogau: Well, depending on how broadly the opinion is written--
Unknown Speaker: By every argument you made.
Mr. Glogau: --Yes.
Unknown Speaker: It seems to me that would hurt you.
it really does.
Mr. Glogau: Thank you, Your Honor.
Unknown Speaker: Thank you, Mr. Glogau.
Mr. Rogow, you have 4 minutes remaining.
Rebuttal of Bruce S. Rogow
Mr. Rogow: Justice Stevens, I'm in a strange position here, and it must be one of the first times in history that a lawyer for Indian tribes is arguing to give the States a chance to be heard, and yet that's what this statute does, but I argue for it because we think it is right constitutionally.
I'm not here to defend Congress' power.
I'm here to defend the tribal sovereignty, and Congress has seen fit... it has exclusive plenary authority over the tribes, and it does over the States... has seen fit to craft this delicately balanced statute.
There is nothing... when one reads the statute, the tribe and the State--
Unknown Speaker: But Congress doesn't have sovereignty over the States.
That is simply fundamentally wrong under the Constitution.
The States are separate, autonomous sovereignties within their sphere.
Mr. Rogow: --They are, but--
Unknown Speaker: Congress doesn't order States to do something.
Mr. Rogow: --The Tenth Amendment which has come into this case in the argument, I must say first, is not before the Court.
The Tenth Amendment was not raised below by the State.
The Eleventh Circuit refused to address--
Unknown Speaker: Well then, if you want to amend your statement that subject to any Tenth Amendment reservation Congress might have some power over the States, fine, but that's not what you said.
Mr. Rogow: --What I have said, Justice Kennedy is, is that in the congressional power, the plenary power, the Congress does have the power to abrogate State immunity, and this is, I think, critical.
There is no compulsion here.
The compulsion is only to sit down and talk with the Indian tribes.
Unknown Speaker: If there's no compulsion, why worry about abrogating immunity?
Mr. Rogow: Because there must be a remedy, and the remedy is that the rest of the process which Congress had the power to create would then be triggered.
This was deferential to the States, and that's why I start off by saying it's an odd and strange position to be arguing in favor of the States having an opportunity to be heard.
One question was asked during the argument, is what is to be gained by the States, and what is to be gained by the States is something that they would not otherwise have had, an opportunity to participate in the scope of gaming.
Is that better--
Unknown Speaker: Well, they might well gain in this case if we found against them, but they're looking down the road, and the principles that this case would establish as to what the Federal Government can order the States to do, and as to when the Federal Government can permit the States to be sued, are important issues.
They're looking beyond Indian gaming laws.
Mr. Rogow: --They are, Justice Scalia, but the precedent is already there for this kind of order from a Federal court.
It is not intrusive.
Unknown Speaker: What precedent is that?
Mr. Rogow: A host of cases, beginning... Morales v. TWA, for example, at 112 Supreme Court, which I mentioned earlier, is a case where Ex Parte Young was used to enforce Federal law, not constitutional law.
Ex Parte Young works in this situation.
Unknown Speaker: Was that involved in... was... did Morales discuss in any detail the Ex Parte Young aspect of that case?
Mr. Rogow: It used and cited Ex Parte Young as being the vehicle for suing seven attorney generals, I think, to enjoin them from enforcing laws that would have violated Federal laws, and so--
Unknown Speaker: But not the vehicle for patching up a broken statute, which says you sue the State.
It wasn't the vehicle... say well, it says the state, but we're going to use Ex Parte Young instead.
That's quiet a different thing.
Mr. Rogow: --But the statute isn't broken, Justice Scalia, if one reads the cause of action against the State to obligate the State simply to the duty to negotiate.
Chief Justice Rehnquist: Thank you, Mr. Rogow.
The case is submitted.
Unknown Speaker: The honorable court is now adjurned until Monday October sixteenth at ten o'clock.