Cases by Issue - Miscellaneous

United States v. Georgia - Oral Argument

Fri, 09 Jan 2009 14:48:57 +0000

Case:

United States v. Georgia

Media File:

04-1203_20051109-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Paul D. Clement

Chief Justice Roberts: We'll hear argument first in United States versus Georgia, and Goodman versus Georgia.

General Clement.

Mr. Clement: Mr. Chief Justice, and may it please the Court--

Title II of the Americans with Disabilities Act validly abrogates the States' sovereign immunities as applied to the class of cases involving the unconstitutional treatment of disabled inmates.

That result follows from this Court's decisions in Nevada against Hibbs, and Tennessee against Lane.

In Lane, this Court held that it was clear, beyond peradventure, that Congress had an adequate basis to enact prophylactic legislation to ensure that individuals with disabilities had access to public services.

In reaching that conclusion, this Court surveyed a broad array of evidence, not just limited to the court access context, and, indeed, surveyed evidence involving prisons, in particular.

As a result, the sole remaining question, and the only question in Lane on which this Court applied an as applied analysis, is the question of whether or not Title II's remedies are congruent and proportional as applied to the particular context; here, the context of the discriminatory, inhumane, or otherwise unconstitutional treatment of inmates with disabilities.

Now, if one applies the congruence and proportionality analysis of Lane, in particular, in the prison context, it easily passes constitutional muster.

For all of the factors that this Court emphasized as making Title II appropriate in the court access context... the absence of absolute mandates, the inherent flexibility of the reasonable modification standard, the fact that benefits are limited to otherwise eligible individuals, the defenses for fundamental alterations or undue burdens... all of those factors apply with full force in this context.

Justice O'Connor: Can it... with respect to the reasonableness aspect, in Turner versus Safley, we said prison administrators have a good deal of latitude, in the prison context, in order to maintain order.

Now, do you see the reasonableness requirements of the Disabilities Act as being congruent with the Turner Safley reasonableness analysis?

Mr. Clement: Absolutely, Justice O'Connor.

And one of the reasons that I think that Title II is particularly congruent and proportional in the prison context is, the reasonable modification standard, which, after all, uses the term "reasonableness", is very well amenable to the kind of Turner deference standard this Court applied.

And, of course, just last term, this Court, in Johnson against California and Wilkins... and in the Wilkinson case, Cutter against Wilkinson, applied deference to prison officials even in the context of strict scrutiny.

And so--

Chief Justice Roberts: Are you--

Mr. Clement: --I think it--

Chief Justice Roberts: --suggesting--

Mr. Clement: --applies, a fortiori.

I'm sorry, Mr.--

Chief Justice Roberts: --Are you--

Mr. Clement: --Chief Justice.

Chief Justice Roberts: --suggesting that the ADA does not add to the burdens of the State officials, it just simply tracks what's already required under Turner?

Mr. Clement: Mr. Chief Justice, I don't... I don't... I'm not up here today saying there's no prophylaxis at all with respect to Title II, but I think it is proportional and congruent, and I think the prophylactic gap between what the Constitution protects and what Title II protects is relatively narrow in the prison context, both because if you think about one set of claims, the Turner claims, much of that deference can be brought in under the reasonable modification standard; and then, if you think of the other class of cases, those involving deliberate indifference, I think in those class of cases, this is... the prison context is one of the rare contexts in which the State is under an affirmative obligation to provide accommodations to the medical needs of inmates, including disabled inmates.

And I think the fact that here's a case where the Constitution requires affirmative accommodation also helps narrow the prophylactic gap.

Chief Justice Roberts: Under Turner, one of the considerations that can be taken into account are the budgetary limitations of State officials.

Does that apply under the ADA, as well?

Mr. Clement: I think it certainly could.

I think... if you look at the cases that we collect at footnote 17 of our reply brief, which are cases where the lower courts have applied Turner style deference to claims under the Rehabilitation Act or under Title II, I think some of those Courts of Appeals have clearly taken into account those kind of budgetary concerns.

Justice Kennedy: Of course, all of the concerns you've mentioned could be taken care of by injunctive relief.

You don't necessarily need damages.

Mr. Clement: Well, I think damages are an important aspect of the remedial scheme, Justice Kennedy.

I would also point out that, because a number of States have challenged the application of Title II, in the prison context, in particular, as not being valid Commerce Clause legislation, it's not a foregone conclusion that there would be injunctive relief available.

But I do think if we want to focus on the damage--

Justice Kennedy: Well, but if we held the Act was applicable for injunctive relief, it would... it would be, because I'm... the pert part of your argument is that you could have a attorneys fees and triple damages where trial attorneys levy against the State treasury, which is... which is what the Eleventh Amendment is largely concerned with.

That... all of that would follow from what you've said so far.

Mr. Clement: --Well, I'm not sure about the treble damages, but certainly compensatory damages would be available.

This Court, of course, in Barnes against Gorman, has already said that punitive damages are not available under Title II.

And I think if you look at compensatory damages--

Justice Kennedy: I know they're not available under Title II, but, I mean, as a constitutional matter, there's certainly nothing barring them, based on what you've told us so far.

Mr. Clement: --Well, I think punitive damages would be a harder case, in terms of proportional incongruence.

But this Court has, even in the absence of congressional action, found damages to be an appropriate remedy for unconstitutional or unlawful State conduct.

Take the Bivens cases, for example, or the Franklin case, in Title IX, and, I think, if damages are appropriate where Congress hasn't acted, I think where Congress has provided for damages, damages are clearly an appropriate remedy.

But, with respect to damages, in particular, I think it's important to note that the prophylactic gap here is not large, because, in the Title IX context, in the Gebser case, this Court has already said that, in order for there to be compensatory damages, there needs to be a showing of deliberate indifference.

And now, there may be some difference between what "deliberate indifference" means under Gebser and what "deliberate indifference" means under Farmer against Brennan, but, whatever that small gap is, that certainly seems manageable.

Justice Ginsburg: General Clement, in two respects, it... I think you have addressed the cost concern by comparing, in your brief, the Federal experience, which is subject to these controls, and you said it wasn't an inordinate expense, but you also pointed out that every State prison system is subject to the Rehabilitation Act, because they get Federal funds.

Is there a difference between the obligation that State systems would have under the Rehabilitation Act and under the ADA?

Mr. Clement: No, Justice Ginsburg, we don't think so.

But one thing I think it's important to emphasize is that, although at the current time period all 50 States take Federal funds for their prisons, so that all 50 States are subject to the Rehabilitation Act, that wasn't true at the time that the ADA was passed.

And I think what that illustrates is both that Title II plays an important gap filling role and also that, for whatever reason, I think, this is an area... prisons taking Federal funds... where the degree to which they take Federal funds may wax and wane over time.

And so, I don't think this is a situation where Title II is purely duplicative of the Rehabilitation Act, but the difference is really in terms of the scope of the coverage, not in terms of the substantive obligations under the--

Justice Ginsburg: And the--

Mr. Clement: --two provisions.

Justice Ginsburg: --damage remedies available under the Rehabilitation Act is--

Mr. Clement: I'm--

Justice Ginsburg: --Damages are available?

Mr. Clement: --Yes, they are, as to the States.

Justice Scalia: General--

Justice O'Connor: But this--

Justice Scalia: --Clement, I'm interested in another statute that has applicability in the circumstances, and that's Section 1983 and the Prison Litigation Reform Act.

Under the... under the Prison Litigation Reform Act, if you're bringing a constitutional claim under Section 1983, you have to exhaust your prison remedies before you can do that.

And that is not the case here, is that right?

Mr. Clement: No, I don't think that is right, Justice Scalia.

I think that we would... we would say that the PLRA fully applies to claims under Title II and there is an exhaustion remedy.

There is also, of course, an exhaustion remedy inherent in Title II, because, in order to get a reasonable modification, you have to ask for the modification in the first place.

We also think that the PLRA applies, in all its provisions, to Title II claims.

And one important provision to keep in mind is 1997e(e)... 42 U.S.C. 1997 e(e)... which is a limitations on the damages that are available.

And, under that provision, in order to get damages for emotional or mental injury, you have to also show some sort of physical injury.

And the lower courts have interpreted that to require at least the kind of more than de minimis injury you need under the Eighth Amendment.

And I think the PLRA, together with Title II, in the particular area of damages, which is what Justice Kennedy has pointed out is the particular area of concern under the Eleventh Amendment, is even a further narrowing of the relief that's available and a further narrowing of the prophylaxis under the Title II.

So, I do think the PLRA is actually something that actually helps make sure that the remedy here is congruent and proportional.

Justice Stevens: May I ask you to comment on this?

This problem of... just troubles me a little bit.

If we hold this provision unconstitutional because it is not congruent and proportional and so forth, does it not follow that the Title II is entirely unconstitutional, it cannot even be enforced by injunctive relief?

Mr. Clement: Because of the lack of the Commerce Clause nexus?

Is that the--

Justice Stevens: Well, it--

Mr. Clement: --concern, Justice Stevens?

Justice Stevens: --the whole basis for the constitutionality of the statute, I think, is the Enforcement Clause of the Fourteenth Amendment.

Mr. Clement: Well, it was... when it was originally enacted, Justice Stevens, it was supported by both the Commerce Clause and, of course the--

Justice Stevens: That's true of Title II, as well as Title I?

Mr. Clement: --That is... that's true, the statute generally... and it's true of Title II.

We would make... we would certainly defend the Act as valid Commerce Clause legislation.

But I do think that is a much more difficult argument as to Title II, generally, and particularly difficult argument with respect to prisons.

I think, in that respect, it's--

Justice Stevens: Right.

Mr. Clement: --telling that, if you go back to the Government's brief in Yeskey, when we were dealing with constitutional challenges to the application of Title II to prisons, the Government focused all its energy on defending it as valid Section 5 legislation--

Justice Stevens: Right.

Mr. Clement: --and dealt with the Commerce Clause in a footnote.

So, I think we certainly, at that point, were of the view that the Section 5 authority was the much stronger basis to defend the statute, especially in the prison context.

Justice Stevens: So, what I'm suggesting is that it is not merely a matter of damages that's at issue here, but the entire validity of Title II.

Mr. Clement: We agree with that, Justice Stevens.

And I would say, with respect to... I mean, again, I don't want to mislead you, in the sense that we would be here defending it as Commerce Clause legislation, but I think that's a tricky argument.

If it's possible, I'd like to reserve the rest of my time for rebuttal.

Argument of Samuel R. Bagenstos

Chief Justice Roberts: Thank you, General.

Mr. Bagenstos.

Mr. Bagenstos: Thank you Mr. Chief Justice and may it please the Court:

The Americans with Disabilities Act is congruent and proportional as applied to the prison setting for essentially three reasons.

The first is the nature of the constitutional right that's at stake in the prison setting.

As in the access-to-courts setting, this is a setting where States have affirmative constitutional duties, including, in many circumstances, duties of accommodation of inmates' disabilities.

The second reason relates to the record of constitutional violations in this context, a record in the context of State treatment of inmates with disabilities that is extensive, that is judicially documented and confirmed on a nationwide basis.

And the third reason relates to the [*13] tailoring of the ADA remedy, which the -- which General Clement has spoken about to some extent already -- both limitations inherent in the ADA itself and in the PLRA, which fully applies to ADA cases.

Justice Scalia: Do those violations that you allude to... is there an extensive record of violations by the State of Georgia?

Mr. Bagenstos: There is not.

The same... the record of constitutional violations is nationwide.

We don't have any judicial findings--

Justice Scalia: Well, you're--

Mr. Bagenstos: --of constitutional violations--

Justice Scalia: --But the money--

Mr. Bagenstos: --by Georgia.

Justice Scalia: --is not coming from the Nation, it's coming from the State of Georgia.

Was the State of Georgia guilty of constitutional violations?

Mr. Bagenstos: Well, I mean, of course, in this case, the lower court said that there might have been a constitutional violation that allowed that claim to proceed in the--

Justice Scalia: No, no, my--

Mr. Bagenstos: --companion--

Justice Scalia: --I mean a record... a record that would have justified applying, against the State of Georgia, prophylactic measures.

Mr. Bagenstos: --Well, we think the prophylactic measures are justified by the nationwide record, just as in this Court's case--

Justice Scalia: Even against people who played no part in that nationwide record.

Mr. Bagenstos: --Well, that's this Court's cases on prophylactic nationwide legislation, absolutely.

You know, in Tennessee versus Lane, this Court upheld nationwide prophylactic legislation on the basis of a record that included constitutional violations in only eight States.

Here, we have a record that touches on at least 37 States, if you look in pages 20 to 36 of our opening brief.

In--

Justice Breyer: This is... it's relevant to the... I just saw these as... I... just by chance, it... one of the cases in the SG's brief involved Georgia juvenile facilities, where mentally ill patients were restrained, hit, shackled, put in restraint chairs for hours, sprayed with pepper spray.

Mr. Bagenstos: --Well, I think--

Justice Breyer: And that seemed to be one instance coming out of Georgia.

Mr. Bagenstos: --I think that's right.

I think that's--

Justice Scalia: But was that before or after the enactment of this statute?

Mr. Bagenstos: --I believe that was pre-ADA, Your Honor.

Justice Scalia: Yes.

Mr. Bagenstos: But I think that the point... the point is that the record of constitutional violations here is a nationwide record.

It's a record that includes some incidents from Georgia.

It's a record that includes many incidents from many other States; as I say, 37 different States.

It's a record of constitutional violations that's been judicially confirmed.

We have courts actually finding--

Justice Scalia: Well--

Mr. Bagenstos: --in final adjudications--

Justice Scalia: --I'm looking at the--

Mr. Bagenstos: --constitutional violations.

Justice Scalia: --at the chart in one of the amicus briefs, which shows that there are, for Georgia... and it lists all the States... for Georgia, zero arguable State violations prior to the Act.

Mr. Bagenstos: Well, I think that's... I mean, I think that's because they exclude--

Justice Scalia: The--

Mr. Bagenstos: --juvenile facilities from their--

Justice Scalia: --Well--

Mr. Bagenstos: --consideration.

Justice Scalia: --State and local violations.

Mr. Bagenstos: Right.

Justice Scalia: But State and local units don't enjoy the sovereign immunity of the State.

Mr. Bagenstos: The... I mean--

Justice Scalia: You--

Mr. Bagenstos: --you know--

Justice Scalia: --don't need this Act to sue them.

Mr. Bagenstos: --Well, I would say, in Georgia, of course, State and... of course, local facilities are arms of the State in Georgia.

That's been the judicial holding.

And so, for Eleventh Amendment purposes, we would consider them.

But I would say the record of constitutional violations here that justifies nationwide prophylaxis is really far more extensive than the record that's been before this Court in Tennessee v. Lane and Nevada v. Hibbs and touches on touches on even more States than, you know, the nationwide literacy test ban that was upheld in Oregon v. Mitchell.

At the time this Court upheld that, only 22 States had literacy tests, I think.

Justice Stevens: May I ask you this?

The notion of our reviewing the adequacy of the evidence before Congress is something that's always seemed, sort of, puzzling to me.

Do you know what... what is... what standard do you suggest that we should apply in determining whether the evidence before Congress was sufficient?

Mr. Bagenstos: In determining whether the evidence before Congress was sufficient, I think, you know, this Court has said... I think the standard comes from City of Boerne... it's the congruence and proportionality test, but it recognizes that Congress has to have a great deal of leeway in determining where the line between enforcement and substantive change in the law lies.

And, you know, here we have, whatever standard we use, the kind of record of constitutional violations that justifies prophylaxis.

We have... we have constitutional rights that impose on States obligations of accommodation.

So, the ADA is, in no circumstance--

Justice Stevens: Yes, I understand your view is that, whatever the standard is, you win.

I'm just curious, do you have a--

[Laughter]

--do you have a formulation of what the proper standard should be?

Mr. Bagenstos: --Well, as I said, I think the... I do think that the proper standard should be the City of Boerne standard of congruence and proportionality, exercised with the kind of deference that this Court said in Boerne, which I think this Court adopted in Lane, to the factfinding capabilities of the... of the... of the Congress.

Chief Justice Roberts: I understand your submission... and that's what I heard from the Solicitor General, as well... on the difference between enforcement and the substantive right.

You're assuring us that we don't need to worry about that, because there's no great difference between what you think is required under the ADA and what's required under the Constitution.

Mr. Bagenstos: Well, Mr. Chief Justice, I think there is clearly a difference.

Right?

There's a prophylactic sweep to the statute.

It's just that it's not very much, in this context, for a number of reasons, one being the nature of the constitutional rights, that they impose requirements that are affirmative duties, the other being the way the reasonableness language of the ADA has been consistently read by lower courts to take account of context, and another being the Prison Litigation Reform Act, which further ties the ADA to the--

Chief Justice Roberts: But I'm just wondering if that's--

Mr. Bagenstos: --constitutional violation.

Chief Justice Roberts: --a reasonable reading of the ADA, which I had always understood to be a significant change in... in terms of what rights are available to the disabled.

And it seems to me quite different from Turner against Safley, which talks about the demands of the prison environment and the... and a high level of deference to prison administrators.

Do you think that approach is, in fact, consistent with what Congress had in mind with the ADA?

Mr. Bagenstos: I think that the approach of taking into account the significant State interest in uniform treatment in the prison setting uniquely, yes, is very much consistent with what Congress had in mind, just as this Court, in the Cutter case, you know, read the "compelling State interest" language, much more stringent language about the... about what the State has to satisfy... as taking--

Justice O'Connor: One--

Mr. Bagenstos: --account of--

Justice O'Connor: --One--

Mr. Bagenstos: --these concerns.

Justice O'Connor: --One concern is that, in the prison situation, the prison is exerting control over all aspects of the prisoner's daily life.

That's very different from just court access, as in Tennessee versus Lane, and it could require very extensive requirements, perhaps.

Is that a concern, or should it be, in the "congruence and proportionality" examination?

Mr. Bagenstos: Well, I think there are two sides to that coin.

I think, definitely, the scope of the ADA in the prison setting, you know, is important.

I think that the lower court's reading of Mr. Goodman alleges, may be entirely unreasonable, where what's at stake is attending an arts-and-crafts class, or something like that.

So, I think that is important, but I think the flip side of the... of the State's complete control over every aspect of the inmate's environment is, this is one of the few areas of Government where States have affirmative constitutional duties, including--

Justice Souter: Mr. Bagenstos, on this point, do we have any figures on what... I guess it's the Rehabilitation Act that applies to the Federal Prisons... do we have any figures on... you know, on what that has cost in required accommodations?

Mr. Bagenstos: --You know, I don't know the figures for that.

Perhaps the Solicitor General can answer as to what the burden has been on the Federal Government.

I think, you know, the Solicitor General states in his brief... in his reply brief, particularly... that the burden has not been significant, the Government--

Justice Souter: Yes.

Mr. Bagenstos: --has not--

Justice Ginsburg: It applies... it applies to State prisons, as well, because of its Spending--

Justice Souter: Well, yes, that's right.

Justice Ginsburg: --Clause legislation.

Justice Souter: Yes.

That's right.

Mr. Bagenstos: --That's true.

It does apply to State prisons, as well, Justice Ginsburg.

However, we... you know, we obviously can't be sure that it's always going to cover every State prison.

It hasn't, at times, in the past.

It might not, at times, in the future.

I think, you know, one of the significant aspects of the Rehabilitation Act is... and I think the amicus brief filed on behalf of Mr. Goodman by the former President George H. W. Bush really emphasizes this... the ADA was passed based on a firm conclusion by Congress that the Rehabilitation Act had failed, that it hadn't worked.

And I think the record of constitutional violations here shows that, that we have such an extensive record of judicially confirmed, judicially established findings of constitutional violations in the prison context, and we have constitutional rights that impose on States the same kinds of requirements, not in all particulars, but in very similar ways, as the ADA does, itself.

I think that's where... that's where the congruence and proportionality really comes in.

Justice Kennedy: Why is it so clear that damages are necessary and that equitable relief shouldn't suffice?

It's--

Mr. Bagenstos: Well--

Justice Kennedy: --it's puzzling... it's puzzling to me, the notion that trial attorneys and their clients can levy upon the funds in State treasuries under the Eleventh Amendment.

Why is it congruent and proportional to allow that?

Mr. Bagenstos: --Well, a couple of points about that.

I mean, the first is the deterrent function of damages is really essential in this context.

I think that's the import of the record of constitutional violations.

Section 1983 failed.

I think the second point about damages is, they're very limited in the prison context.

They're limited by this Court's decision in Barnes, no punitives.

They're--

Justice Kennedy: Well, where you say Section 1983 failed, the ADA could allow equitable remedies.

Mr. Bagenstos: --The ADA could allow equitable remedies, but... could certainly--

Justice Kennedy: And why--

Mr. Bagenstos: --allow--

Justice Kennedy: --And why shouldn't that... why shouldn't that suffice?

Mr. Bagenstos: --Well, I think, you know, this... something this Court has said repeatedly, that the deterrent function of damages is important... and here, we have... we have a very good... we have very good evidence that we need deterrents in this context.

We need deterrents because constitutional violations have continued and continued.

But I--

Justice Scalia: Why don't--

Mr. Bagenstos: --think that--

Justice Scalia: --Why don't you need it for 1983 violations?

Mr. Bagenstos: --But--

Justice Scalia: Constitutional violations.

Not just prophylaxis--

Mr. Bagenstos: --Well, there--

Justice Scalia: --but actual constitutional violations by the prisons under 1983--

Mr. Bagenstos: --I think it--

Justice Scalia: --that don't happen to relate to the handicapped and, thus, are not covered by this legislation.

You can't get damages there.

Mr. Bagenstos: --Well, you know, I think that the... with respect to constitutional violations that might not relate to people with disabilities, you know, that's something Congress could certainly consider in other legislation.

Here, Congress would... have, staring in front them... right +/?

a record of constitutional violations that showed... right +/?

proven constitutional violations showed that the 1983 remedy, which doesn't authorize damages against the State, wasn't working.

We need to have some additional remedy.

We need some additional deterrents and spur to compliance on the part of States.

But I think it's also important to note how limited the damages remedy in this context is.

It's not just the absence of punitive damages.

It's not just... you know, we also have the provision of the PLRA that says no damages for mental and emotional injury in the absence of physical injury, which means that, in the kinds of cases that are peripheral to core constitutional rights, we're not going to have damages anyway.

It also... we also have the exhaustion requirement of the PLRA, which imposes on plaintiff the requirement that they go to the prison and tell them, PLRA, we're very likely to have deliberate indifference, a problem that prison officials have refused to resolve--

Justice Scalia: Well, wait, but... you know, in 1983, when you exhaust your prison remedies, the prison fixes what was wrong, and that's the end of it.

But, under this Act, you go through your prison remedies, what do you ask the prison for?

Money?

The prison can't give you money, so they say,

"No, you can't get your money. "

I--

Mr. Bagenstos: --Well, I think--

Justice Scalia: --mean, the prison-remedy thing is... the only thing it does is make it take a longer time to get to court, but it does the prison no good.

It's going to be liable for damages anyway.

Mr. Bagenstos: --Well, I think that, of course, the prison can reduce its damages liability, and, of course, where we have a continuing violation after exhaustion, which is what... when people file these lawsuits, when they have continuing problems, like Mr. Goodman alleges were continuing problems in his case... we will have cases where we have very much... very likely to have deliberate indifference.

And so, I think that's an important thing, too.

I think the other important point about Turner v. Safley that the Solicitor General spoke about... right +/?

many of the constitutional rights in the prison setting that are significant here don't implicate Turner v. Safley.

Eighth Amendment cruel-and-unusual-punishment claims don't implicate Turner v. Safley, as this Court said in the Johnson case.

And we have a very substantial record of Eighth Amendment violations.

Of course, the Eighth Amendment requires accommodation of serious medical needs, as this Court has said ever since Estelle v. Gamble, and ADA.

And so, I think another very significant aspect of the congruence and proportionality here is how close the ADA's disability definition is to the class of people who implicate constitutional rights, affirmative constitutional rights of accommodation, under the Eighth Amendment itself.

And so, I think that's another very significant aspect of the tightness of the fit here.

But, here, I think the most salient fact is, if you ever had a record justifying prophylaxis nationwide, the record here, that touches on 37 different States, that includes, in many cases, statewide findings of constitutional violations, is it, it's a record that justifies, certainly, some prophylactic legislation; at least... at the very least, the minimal prophylaxis that we have in the ADA in the prison setting.

It's a kind of... it's a kind of prophylaxis that's very much like the kind of prophylaxis this Court has previously upheld in Tennessee v. Lane, where we had very similar affirmative constitutional obligations, and in Nevada v. Hibbs, where we had a much less significant record, nationwide, of constitutional violations.

And so, for all those reasons, you know, we believe that the ADA is congruent and proportional in the prison setting.

And if the Court has no further questions--

Chief Justice Roberts: Thank you, Counsel.

Mr. Bagenstos: --Okay.

Okay.

Argument of Gregory Andrew Castanias

Chief Justice Roberts: Mr. Castanias.

Mr. Castanias: Mr. Chief Justice, and may it please the Court:

Before I sit down today, I'd like to make three basic points, and hopefully I'll get to make... elaborate on each of them a little bit.

First of all, this case is not anything like Tennessee versus Lane.

It doesn't involve the very important civil right of access to courts, access to voting booths, or anything like that.

It involves--

Justice Breyer: But was there... there was a reporter who was one of the disabled people, I think, wasn't there, in Tennessee versus Lane?

Mr. Castanias: --I believe that's correct--

Justice Breyer: And so--

Mr. Castanias: --Your Honor.

Justice Breyer: --what is the right that that reporter has that's specific to courthouses?

Mr. Castanias: As I understand it, Your Honor, from reading the opinion, that right was the specific right to access the courts.

It's the public right of access to see court proceedings, like the people--

Justice Breyer: Well, was there any problem of that in Tennessee versus Lane?

I thought the courthouse officials there said,

"There'll be a trial. "

"No problem there, just whether you have to walk up the steps or don't, and we'll give you a trial down below. "

Was there... it's the right of access to courthouse, specially?

Mr. Castanias: --It's the right of access to courts, specifically, that was the context that was... that was created for purpose of the as-applied analysis in Lane.

The second point I hope I'll get to address today is the very fundamental differences between the prison context the... and the courthouse context at issue in Lane, and the reasons why the prison context that it's... that is at issue in this case makes this case so fundamentally different.

The prison context, as Justice O'Connor pointed out, is one where issues of safety and security and, as well, from the Court's decisions, issues of federalism and deference to prison officials hold sway.

Those were not at issue in Lane, and they--

Chief Justice Roberts: Well, your--

Mr. Castanias: --have a--

Chief Justice Roberts: --your friends on the other side say that's not a big deal, because the ADA looks only to reasonable accommodations; you can take all those factors into account; and presumably the lower courts would.

In other words, they say you're already subject to most of these obligations anyway, and it's just a little bit extra, under the ADA.

Mr. Castanias: --Well, Mr. Chief Justice, we respectfully, but strenuously, disagree with that submission, and I'll give you a very good example of what they're not talking about here.

What's happening under the ADA, as a practical matter in the prison context, is that it's giving prisoners trials on issues like whether or not they have access to the television room in the prison.

That's not a constitutional right.

Before the ADA, that was never understood to be a constitutional right.

Justice Ginsburg: Have Courts of Appeals approved those determinations?

Mr. Castanias: I'm not aware, Justice Ginsburg, of any Court of Appeals that has ruled on that yet, but I am aware of two District Court cases... I could give you the names of them... where summary judgment was denied, and a trial was given to the inmate.

One is Brown against King County Department of Adult Corrections--

Justice Ginsburg: And how many has it... in the District Courts, how many have been rejected when it's something like television or recreation?

Mr. Castanias: --Justice Ginsburg, without making any representations that I am going to canvas the universe on this, I have not seen a case where the District Court has rejected a trial in that respect.

And I think, Your Honor, this gives me an opportunity to talk about one of the fundamental problems--

Justice Ginsburg: Well, before you do that--

Mr. Castanias: --Sure.

Justice Ginsburg: --as I understand it, and as the Solicitor General confirmed, you are subject to the Rehabilitation Act, where the substantive scope is the same.

So, what... you are saying, in the prison context, this is undue, but you all... you are already subject to it under one Act.

And how has that been working out?

Mr. Castanias: Justice Ginsburg, I don't have any data on that, and we haven't... we don't have any in our brief.

The Solicitor General's data that he put in on the Federal Bureau of Prisons came in his reply brief, and we certainly haven't had--

Justice O'Connor: But do you--

Mr. Castanias: --an opportunity--

Justice O'Connor: --agree that--

Mr. Castanias: --to pull that together.

Justice O'Connor: --the Rehab Act contains the same essential requirements as ADA?

Mr. Castanias: Well, the Rehabilitation Act is a little different than the ADA, but it certainly is protective of many of the same rights.

I would think it would be protective of all of the same constitutional rights that the--

Justice O'Connor: And you agree that it applies at least where the States are accepting Federal money for the prison?

Mr. Castanias: --Well, as I understand it, Justice O'Connor, the Spending Clause power can be hived down on a program-by-program basis, not just as whether the State itself is receiving it.

So, without knowing specifically whether we're talking about the particular program--

Justice O'Connor: Does it apply in the prison in this case... the Rehab Act?

Mr. Castanias: --I don't know the answer to that, as I stand here, Justice O'Connor.

Justice Scalia: Mr. Schaerr, who's going to be representing some States as amici, will presumably have better information on that subject.

Mr. Castanias: I--

Justice Breyer: In your point of view, would it help if the Court said... I guess it would, but I... in order to get rid of this problem, if the Court said,

"Look, it says "reasonable". "

and of course a prison has special problems,

and, referring, say, to Turner versus Safley, said that,

"These things about television remote controls are not really, normally, a matter of unreasonableness. "

So, in other words, we hit... we... you give considerable discretion to the... to the warden, and the Act would have bite in cases where there is really a serious problem, like this one.

It's alleged to be a really serious problem.

Mr. Castanias: --Well, Justice Breyer, I think you're right to say that, except that that's not what the Act says.

The Act says--

Justice Breyer: I thought it said "reasonableness".

Mr. Castanias: --That's exactly right, and that... and the reasonable... the reasonable-accommodation or reasonable-modification standard of the ADA, both generally and specifically in Title II, imposes an affirmative burden on the States, which is very much unlike the rational-basis test of Cleburne.

It's very much unlike the rational-relationship test of Turner against Safley.

Quite the contrary, what happens in these cases... and this comes up in the television cases, as well as the access-to-chapels cases or any of the... any of the cases that the Petitioners have hypothesized... what happens in that case is, the Petitioner pleads that,

"I could access this if I only had a reasonable accommodation. "

and then the burden shifts to the State, at that point, to not just articulate reasonable grounds, but to, in fact, prove that it is not reasonable or that it would be an undue burden.

There is a case that the... that Petitioner Goodman has cited in both of his briefs to this Court, out of the Seventh Circuit, called Love against Westville Correctional Facility... comes out Indiana... and this case is a great example of why, Justice Breyer, the Turner against... the Turner against Safley integration into the reasonableness provisions of ADA Title II won't work, and isn't congruent and proportional, because--

Justice O'Connor: Is that case cited somewhere?

Mr. Castanias: --It is.

It's in both the... Petitioner Goodman's opening and reply briefs.

In the Love case... and this is... this is a law-school exam case, because the prisoner put forth his case, and the State of Indiana, while it was pre-Yeskey, nonetheless agreed that the ADA applied to the prison and, at the same time, didn't present any evidence.

And the prisoner won the case.

And they won the case, because all the State did is articulate reasons, like there was... it would cost too much.

And this court very clearly said,

"Look, you didn't put any evidence. "

"You lose. "

Now, that's what... that was one of the fundamental factors that caused this Court to find, in both Kimel and Garrett, the statutes unconstitutional, because the--

Justice Ginsburg: But maybe in the prison setting, the lower courts would pay some attention to the Court's recent decision in Cutter against Wilkinson, where the Court made it very clear that a high level of deference... even dealing with a strict-scrutiny standard for religious freedom... that a high level of deference would be paid to prison administrators' judgment of what safety and discipline requires inside a prison.

Wouldn't that... wouldn't that carry over to the ADA, were it to apply?

Mr. Castanias: --You--

Justice Scalia: We could say that--

Mr. Castanias: --But you--

Justice Scalia: --in this opinion.

I mean, that would make it happen, wouldn't it?

Mr. Castanias: --You could... I mean, you could absolutely say it.

You... the Court can say anything it wants here.

But the problem is, is that this was... this was one of the fundamental problems with ADA Title I--

Justice Ginsburg: Do you think that the--

Mr. Castanias: --and with the ADEA--

Justice Ginsburg: --that if the prison explained what their practices were, in terms of the needs of security, that a lower court will then say,

"Well, never mind that. "

"The Supreme Court just said it. "

"We don't have to enforce it? "

I don't think there would be that kind of lawlessness.

Mr. Castanias: --Well, I'm... I... Justice Ginsburg, were... if this Court were to uphold the damages remedy in this case, this would be what the States would be left to argue.

And in... while it is true that you have said, in a couple of recent cases, that strict scrutiny is not quite as fatal, in fact, as usual, that strict-scrutiny case that you're referring to is the true exception in the prison context, where strict scrutiny was applied.

And it involved the very important, very core Fourteenth Amendment right against racial discrimination.

Here, we're talking about a statute that was framed by Congress as basically trying to change the Cleburne rule, trying to bring an added level of scrutiny to claims, equal-protection--

Justice Ginsburg: It's interesting--

Mr. Castanias: --type claims.

Justice Ginsburg: --that you cite that case, in terms of Justice Scalia's remark,

"Watch what we do, not what we say. "

Cleburne was a remarkable case in that respect.

It purported to apply rational-basis review, but the plaintiffs won.

Mr. Castanias: That's exactly right, Justice Ginsburg.

And, in fact, the reason that the plaintiffs won is that the State, in that case, the State defendants, offered four reasons, all of which were found to be not legitimate State reasons.

It was a straightforward application of the rational--

Justice Ginsburg: But if you think--

Mr. Castanias: --basis test.

Justice Ginsburg: --if you think of the... any conceivable basis... doesn't even have to be offered if the... if it's, indeed, the rational-basis test.

It has been suggested that something more is going on in Cleburne, and, I think, in all candor, one would have to say so.

Because if you looked at the rational-basis test that had gone before, this one looked no better, no worse.

Mr. Castanias: I think that the Tennessee Solicitor General Moore, at the end of the Lane argument, said,

"We have to take the Court as... for what it does say. "

And it said it was applying rational-basis scrutiny in that case.

Justice Scalia: Mr. Castanias, suppose the Court agrees with you that the response here is not proportionate, and, hence, that the prophylactic aspects of this statute are invalid.

There remains the fact that the statute covers actual constitutional violations for which you don't need any special proportionality.

Certainly, the Government can allow the States to be sued for constitutional violations.

And the plaintiff here claims that some of the acts he's seeking damages for do amount to constitutional violations.

How can we possibly say that that suit does not lie?

Mr. Castanias: Well, I think, Your Honor, there are two answers to that.

First of all is, Section 1983 already did that.

And the reason that that... that may not--

Justice Scalia: It doesn't lie damages here.

Can you get damages under 1983?

Mr. Castanias: --Absolutely.

Justice Scalia: Against the State?

Mr. Castanias: You can get it against State officers acting--

Justice Scalia: State officers don't have any money.

[Laughter]

We're talking about damages against the State.

Mr. Castanias: --Well, you cannot get damages against the State--

Justice Scalia: Under--

Mr. Castanias: --under Section--

Justice Scalia: --1983--

Mr. Castanias: --1983, that's--

Justice Scalia: --absolutely.

Mr. Castanias: --right.

That is exactly right.

But the other answer, Justice Scalia, is that to get to that result... and I think it's remarkable that both Petitioners' counsel stood up here, and the way they framed the question was,

"This is just remedial for these actual constitutional violations in prison. "

To get to that result, you would have to rewrite the ADA in a way that would make the reasonable-modification or reasonable accommodations provision basically an empty vessel to put whatever constitutional law you want in--

Justice Scalia: No, no, I mean the portions that go beyond constitutional violations are no good.

I'm not... I'm not going to read it unrealistically so that it only includes constitutional violations.

But, to the extent that it includes constitutional violations, why isn't that lawsuit perfectly okay?

Mr. Castanias: --Let me... let me... let me pause for a second and think about that.

The... I think the problem with that... my instinct is that there is a problem with that, and I think the problem with that... not just because, Your Honor, I represent the State... but I think the problem with that is that it is, in no way, congruent to the constitutional rights.

In other words, what it's doing is, it's giving, only to a limited class of prisoners, a particular set of rights.

In a way, this is the... this is the underbreadth argument that we made in our brief that the... that the Petitioners, in their replies, made fun of a little bit.

But, quite honestly, this is... this... it would be giving disabled inmates... making them into a special class for purposes of constitutional violations that don't apply just to disabled inmates at all.

Quite the--

Justice Breyer: Well, that's--

Mr. Castanias: --contrary--

Justice Breyer: --This is true.

This is exactly the point I had asked about before.

This is a better point.

Because I thought that bridge was... that... was crossed in Lane.

That is, I don't see how you can say that Lane was not giving... saying it's constitutional to have prophylactic rules.

And that's why I raised the reporter.

I've never heard of a First Amendment right of a paper to send a particular reporter.

I mean, if there's a disabled reporter who couldn't get into the courtroom, I guess they could send a different reporter.

Maybe that's a First Amendment right, but I have not heard of it.

So, I thought that, really, Lane is saying,

"You can sweep, within the prophylactic rules, a lot of things that are not, in fact, constitutional violations, but simply discrimination against disabled people. "

Mr. Castanias: --I think, Justice Breyer, with regard to Lane, the right that was at issue was not the right of the paper to send a reporter, it was the right of the reporter--

Justice Breyer: I think there is a First Amendment right for a newspaper, for example, to send a particular reporter to the courtroom.

That's an interesting question.

I never thought of that one.

I--

Mr. Castanias: --No, actually, Justice--

Justice Breyer: --you don't think Lane stands for the proposition of their prophylactic rules being perfectly legitimate under the Eleventh Amendment, where you have a set of constitutional violations?

Mr. Castanias: --Justice Breyer, I think... I think I either misstated my answer to you, because I was trying to--

Justice Breyer: No, I was asking--

Mr. Castanias: --I--

Justice Breyer: --I'm--

Mr. Castanias: --Let me try to answer that and--

Justice Breyer: --Yes.

Mr. Castanias: --say to you that I think, first of all, the First Amendment right that was at issue there was the general right that's possessed by the public to attend court proceedings, not just a right that was inherent in the newspaper or the... a right that was prophylactically being exercised there.

Justice Kennedy, you asked the Petitioner's counsel about alternative remedies here, and I think there's an important point to make with regard to Title III of the ADA, and that's the title of the ADA that applies, not to public entities, as we have here, like the State prison, but the title that applies to public accommodations, like restaurants and hotels.

And it's important to note, I think, that, in that title, Congress did not provide for money-damages remedies.

Quite the contrary, it provided for an Attorney General action, and it provided for injunctive relief.

And so, the notion that States somehow are special and should be the ones that get damages against them for violating the... violating access rights is, in words that the Court has used... in Boerne and the cases following it, that is a real indignity to the States.

And, beyond that, the standard that applies--

Chief Justice Roberts: Well, presumably, that's because the prisoners don't have a lot of choice as to which accommodations they're going to select from.

[Laughter]

Mr. Castanias: --I'm not sure, Mr. Chief Justice, that it follows that damage... that damages follow from that observation.

And I think, with regard to the choices that are available to prisons, much has been made in this case about the affirmative obligations of the State to provide the minimum standards of health and safety for prisoners.

And I'd point out that, in the Court's decision in DeShaney... specifically, footnote 7... the former Chief Justice wrote for the Court that, in determining both the scope and how to satisfy those, there is an enormous amount of discretion imposed in the State.

So, it's hard to say that that provision is allowing for... that minimal affirmative burden that's on the State is in any way congruent with the broad affirmative remedies that are at stake in this case.

Now, if I could just go through, very quickly, the various constitutional rights that are being addressed here by the... that are being claimed here by the Petitioner, you can see, in each case, why it's not a proportional and congruent remedy to use Title II of the ADA to enforce them.

First of all, with regard to the Equal Protection Clause, it's almost obvious, from the findings of Congress, that they meant to impose a higher degree of scrutiny.

By citing the words of Carolene Products, as well as Matthews against Lucas, that's... have justified heightened scrutiny to apply to the disabled, this is almost proof positive that Title II... and the ADA, in general... is changing the level of constitutional law.

It's not enforcing; it's changing the law.

Justice Scalia: Well, that just proves that they went too far.

It doesn't prove that, to the extent that it covers a constitutional violation, it's okay.

We will say the excess is bad.

Mr. Castanias: Well, Justice Scalia, I think the answer to that comes back to Kimel and Garrett.

The excessive change in the constitutional law was held to have crossed the line in that case.

And here, we have the same problems.

We have the changing of the burdens.

We have the changing of the level of scrutiny.

And we have the efforts, the same efforts that were used in Kimel and Garrett--

Justice Stevens: Do you think--

Mr. Castanias: --to make--

Justice Stevens: --the level of scrutiny applied in Cleburne was precisely the same rational-basis level that is applied in a lot of other rational-basis cases?

Mr. Castanias: --I think it was, Justice Stevens, because you can only talk about the conceivable remedies in the context of what the State puts forth.

And perhaps a creative judge could say,

"Aha, but that's the State... you didn't think about this one. "

And the fact that Justice White's opinion... I think it was Justice White's opinion for the court in Cleburne... didn't go on and think about four other conceivable bases, I don't think is a fault of the decisionmaking process at all.

With regard to the Petitioner's efforts to enforce the guarantee against cruel and unusual punishment, there is no intent standard in the ADA at all.

In fact, this would scrub out the deliberate-indifference standard entirely, and, in the... at least Goodman's reply brief, he admits that that basically would be what would happen.

He says that would be appropriate prophylaxis.

I think that is an astonishing claim in this case.

Justice Ginsburg: Can we go back, Mr. Castanias, to Justice Scalia's question about the core concerns?

And we have been told by Respondents that their core concerns are sanitation, mobility, protection from physical injury.

Now, that sounds to me like constitutional Eighth Amendment heartland.

Mr. Castanias: And in that case, Justice Ginsburg, if I could just briefly--

Chief Justice Roberts: Sure.

Mr. Castanias: --conclude?

In that case, Justice Ginsburg, the Constitution, through Section 1983, does provide a remedy.

It will provide a remedy that will get the prison to stop that.

If there are no other questions, we'd ask that the judgment be affirmed.

Argument of Gene C. Schaerr

Chief Justice Roberts: Thank you, Counsel.

Mr. Schaerr, we'll hear now from you.

Mr. Schaerr: Mr. Chief Justice, and may it please the Court:

Let me begin by attempting to answer Justice Scalia's questions... question about the Rehabilitation Act.

My understanding is that the key difference between the Rehabilitation Act and Title II is that... is that the Rehabilitation Act requires intentional conduct, which, obviously, is a much... a much higher standard.

Instead of dwelling on the record offered in support of Title II... and we agree with Georgia that the record was not sufficient... I'd like to focus on the congruence and proportionality requirements, which are quite separate from the record requirement, and which we believe are independently dispositive in this case, for two separate reasons.

But, first, I think it's important to recall the two key purposes that the congruence-and-proportionality analysis serves.

One of those, as the Court has reiterated, is to prevent Section 5 from becoming a kind of police power through which Congress can regulate the States and impose litigation and other burdens on them as though they were mere corporations.

The second purpose, of course, is ensuring that the specific remedies that Congress chooses, and especially the abrogation of sovereign immunity... sovereign immunity that this Court has held is within Congress's Section 5 power, are a measured response to Congress's legitimate goals.

And that's obviously important, because of the... of the... of the tension between the Section 5 power, on the one hand, and the Eleventh Amendment and other provisions of the Constitution that protect--

Justice Stevens: May I just--

Mr. Schaerr: --the State's sovereignty.

Justice Stevens: --be sure I understand this point?

Mr. Schaerr: Yes.

Justice Stevens: Are you, in fact, arguing that the statute might be... I know you don't agree with it... might be proportionate and congruent with respect to all of its prohibitions, but, to the extent it provides for a damage remedy, then it crosses the line?

Mr. Schaerr: I do believe that the statute could be invalidated on that ground alone, but I don't think the Court needs to do that, because I think it's clearly not congruent with constitutional requirements.

And let... and I believe there are--

Justice Stevens: But--

Mr. Schaerr: --four reasons for that.

Justice Stevens: --But is that... it... because it has a damage remedy, or would it be equally noncongruent without the damage remedy?

That's what I'm trying--

Mr. Schaerr: I--

Justice Stevens: --I'm following up on Justice Kennedy's question to your colleague.

Mr. Schaerr: --Well, the way... the way I would view it is that the damage remedy is disproportionate to Congress's legitimate goals in this case, for a couple of reasons.

Number one, as in... as in Florida Prepaid and some of this... some of this Court's other decisions, the abrogation of sovereign immunity is not limited to the specific areas that Congress and the courts have identified as the greatest concern, from a constitutional standpoint.

And, number two, the abrogation of sovereign immunity is not limited to the States, or categories of States, where there has been a finding of unconstitutional action.

So, we do think that that would be a sufficient basis to invalidate this statute's abrogation of sovereign immunity, but we also think that the statute is not at all congruent with the requirements of the Constitution.

And, as--

Justice Souter: Mr.--

Mr. Schaerr: --I said, I think there are four reasons for that.

Justice Souter: --Mr. Schaerr, before you go on, may I just ask you one question on the point that you made... and you made it in the brief... about the failure to establish a... some kind of a history of unconstitutional action in this particular State?

Do I understand you to claim that that is a... that a record of some sort must be made by Congress?

Or can a record of that sort be made in the courts, in the course of litigation, as a predicate for a particular lawsuit like this one?

Mr. Schaerr: Well, City of Boerne and other courts... other decisions of this Court say that, to be a valid exercise of Congress's Section 5 authority, it has to be a response to a record of constitutional violations.

Justice Souter: Right, but Congress--

Mr. Schaerr: And it's hard for me to--

Justice Souter: --but Congress normally operates on a... on a national scale--

Mr. Schaerr: --True.

Justice Souter: --so that, I mean, we... I guess, we would normally say,

"Well, you can show 40 States out of 50 were in trouble. "

"That's probably good enough to get you across the line, at least. "

But you're not saying that.

So, are you saying that Congress has got to make the record with respect to each individual State?

Mr. Schaerr: No, I'm not claiming that Congress necessarily has to make the record, but I believe the record has to have been created before Congress acts; otherwise, the--

Justice Souter: So, it could be done--

Mr. Schaerr: --legislation isn't--

Justice Souter: --it could be done--

Mr. Schaerr: --a response--

Justice Souter: --in the litigation of this case, then.

There could be a trial record of prior violations.

Mr. Schaerr: --No, I... I don't think the record in this case would satisfy it, because this... because--

Justice Souter: No, but my question is, Where does the record have to be made?

Does Congress have to make it, on a State-by-State basis, or may that record be made in the course of a trial in a particular State as a predicate for subjecting that State to liability in this instance?

Mr. Schaerr: --Well, this Court's decisions suggest that the record has to at least have been within Congress's awareness at the time the statute was passed.

Justice Souter: So that Congress could have known this, whether they specifically adverted to it, or not.

That would be sufficient.

Mr. Schaerr: I think that's correct.

Again, four reasons why Title II is not congruent with the... with the requirements of the Constitution.

First, as in Garrett, the substantive accommodation duty imposed by Title II far exceeds the requirements of the Constitution.

And to see why, we need look no further than Mr. Goodman's complaints that are in the Joint Appendix, the Government's Addendum C, and the Justice Department's implementing regulations, which are found at 28 C.F.R. Section 35.130(b).

And if you... if you look at Mr. Goodman's complaint, yes, there are some allegations there that obviously raise constitutional issues, but there are a lot of allegations that clearly state a claim under the Justice Department's interpretation of Title II, but, equally clearly, don't raise constitutional issues.

For example, on page 65, he has a claim seeking to make the TV lounge and other entertainment facilities wheelchair accessible.

Pages 53, 57, and 82, he makes a claim for better access to recreation facilities, rehabilitative exercises, and physical therapy.

At page 64 of the Joint Appendix, he makes a claim to force the State to install wheelchair-accessible bathrooms.

Justice Kennedy: And I'm saying this to help you.

I'd love to get reason 2.

I'm wondering--

[Laughter]

Mr. Schaerr: Okay.

Justice Scalia: Even if they're bad, why aren't the other ones good?

Mr. Schaerr: Well, in order to abrogate the State's sovereign immunity, there has to have been a valid exercise of Congress's power, and there has to be a statute that represents a valid exercise of that power; otherwise, there's no basis for subjecting the States to liability.

So, I don't think it's enough just to say,

"Maybe there... maybe there is an Eighth Amendment claim here that's legitimate, and maybe, therefore, in this case, the State's sovereign immunity can be abrogated. "

It has to be done pursuant to a legitimate exercise of Congress's power.

Reason number two, Justice Kennedy, is that, as in Boerne and Garrett, even where constitutional issues are implicated, Title II effectively imposes heightened scrutiny on many decisions that are subject to rational-basis review under the Constitution... for example, access to the law library, religious services, associational rights, those sorts of things.

And that, I think, is the key distinction between this case and Lane and Hibbs.

And so, as the Court put it in Garrett, even with the undue-burden exception, the statute makes unlawful a range of alternative responses that would be reasonable under the Constitution, but would fall short of imposing an undue burden on the employer.

Number three, as in Garrett, Title II prohibits standards and criteria that have a disparate impact on the disabled, even though that obviously wouldn't be enough to establish a constitutional violation if the disabled were a suspect class.

And, again, the Court need only look at the Justice Department's regulations to see how they impose a disparate-impact requirement.

And, fourth, again, as in Kimel and Garrett, Title II reverses the burden of proof.

As the Court held in Garrett, under the Constitution, classifications based on disability are prima facie--

Justice Breyer: Well, why isn't all that true of Lane?

Everything you've said is also true of the prophylactic part of Lane.

I mean, I've never heard that people took seriously... though maybe they should have... but, before the ADA, I have never heard there was a constitutional right of a disabled person to go to a courthouse on the second floor.

There were second-floor courthouses all over the country.

I don't know that was true of the bathrooms.

I don't know it was true of a lot of things in courthouses.

So, I think your argument could be made in schools, courthouses, all over the place.

And I take it that Lane said, "Prophylaxis"... whatever the word is... "of that sort"--

[Laughter]

"# is fine under Title II, given a core of constitutional violations. "

So, how do you distinguish them that?

Mr. Schaerr: --Well, I think it... one of the ways is the one... is the one I just mentioned a... mentioned a minute ago.

It's... Lane was certainly dealing with rights that have been considered by--

Justice Breyer: You mean--

Mr. Schaerr: --the Court--

Justice Breyer: --beyond a--

Mr. Schaerr: --to be--

Justice Breyer: --the average public, you had a constitutional right?

I mean, you might have.

I might be surprised.

But, interesting.

Mr. Schaerr: --Well, I--

Justice Breyer: The average person could have brought a lawsuit, a person in a wheelchair, and said,

"All the courthouses in this country, or in this county, are on the second floor, and moreover the bathrooms... I need a special bathroom. "

and they would have won without the ADA.

Why did we need the ADA, then?

Mr. Schaerr: --Well, I'm not sure the claim... I'm not sure, Justice Breyer, that the claim of the person who wanted access to the courthouse to serve as a reporter was necessary to the result in Lane in all of that.

Justice Breyer: Ah.

Ah, you're saying... I... what I just heard was, it's... the reporter just was a stand-in for the average person, that the average person had these constitutional rights, which may have been a--

Mr. Schaerr: I think that would be one way of understanding it, though not the only way.

Thank you.

Rebuttal of Paul D. Clement

Chief Justice Roberts: Thank you, Mr. Schaerr.

General Clement, you have four minutes remaining.

Mr. Clement: Thank you, Mr. Chief Justice.

Before I say anything else, I want to just clarify that the scope of the Rehab Act and Title II is really coextensive.

Mr. Schaerr made a reference to the fact that you need intentional conduct under the Rehab Act.

I think that was true for a while in the lower courts with respect to damages claims.

I think after this Court's decision in Gebser, in the context of damages claims, the lower courts have generally required deliberate indifference both in the Rehabilitation Act context and in the Title II Act context, to the extent they've reached the issue.

But with respect to the substantive obligations, they really are identical.

And I do think that's important, in a couple of ways.

In particular, I think it's worth remembering here that the damages remedy in Title II... and this is different than Title I, where there was a specific provision for back-pay... but in Title II, the damages remedy is just an incorporation of the damages remedy available under the Rehab Act, which, in turn, incorporates Title VI and Title IX remedies.

And those, of course, are entirely judge-made.

And so, one of the things this Court recognized in Gebser, in deciding there had to be deliberate indifference for a compensatory-damages claim, is, this Court said, the judge-made nature of those remedies gives the court a particularly free hand in making those remedies make sense, in terms of the statute, and, I would think, a fortiori, in terms of the Constitution.

So, if--

Chief Justice Roberts: General, when you... earlier, you told us that this doesn't add much to the Constitution, in Turner versus Safley, and then we hear about access to the TV lounge, which doesn't sound like a constitutional deliberate-indifference Eighth Amendment claim.

I mean, if it's important to us how much of this applies, how do we address that issue?

Mr. Clement: --Well, let me address the specter of all these claims for TV access, because I do think that that's something that can be taken care of in any number of respects.

One is, a sensible application of Turner-type principles to the reasonable-modification standard can certainly be done in a way to weed out those claims.

I also think... especially given Justice Kennedy's principal concern with damages, I think here's an area where the PLRA is particularly helpful, because I don't know what kind of physical injury you're going to be able to show to being denied access to the TV room.

And since that's what you need to show under the PLRA in order to recover any damages for mental and emotional suffering that I suppose you could try to bring a claim for emotional suffering for not seeing TV... I'm not sure which way that would cut... but, in any event--

[Laughter]

--I think, in those contexts, the PLRA is the gateway you need to some physical injury, so I think that's going to help weed these out as a matter of damages claims.

And so, I think that's going to have a helpfulness, too.

Also, I think, in some... in some sense, you can't lose sight of the fact that perhaps the reason that somebody's being denied access to the TV room is because they're in a wheelchair on the second floor, and the TV room and the law library and the religious services and everything else they need in the prison is on the first floor.

And, in those contexts, it may be an appropriate degree of prophylaxis.

But I guess what I would say is, I would think that this Court would want to interpret the PL... # I'm sorry, would want to interpret Title II in a way that avoids constitutional problems, rather than in a way that engenders it.

And so, to the extent the access to the TV room is critical to the constitutionality of the statute, I think the reasonable-modification standard provides plenty of tools to apply Turner-type principles and ameliorate the constitutional problems.

I mean, if you compared this case with Cutter against Wilkinson from last term, there you had a statutory strict-scrutiny standard that was specifically directed at the prisons in one other context.

And, nonetheless, this Court said,

"That can be applied with Turner deference-type principles. "

Here, you have a statute that applies broadly, and I would think it would be a very easy act of interpretation and constitutional avoidance to say that,

"In the prison context, we're going to interpret in a way that avoids constitutional difficulties. "

If I could try to address just one or two specific questions... Justice Souter, you asked about the practical experience of the Federal Government.

And, as we point out in our opening brief, at page 45, it's been less than 1 percent of our litigation, and less than 2 percent of our compliance cost.

Thank you, Mr. Chief Justice.

Chief Justice Roberts: Thank you, General. The case is submitted.

Attribution:

The Oyez Project

Featured:

Sabri v. United States - Oral Argument

Fri, 09 Jan 2009 14:49:09 +0000

Case:

Sabri v. United States

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03-44_20040303-argument.mp3

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Transcript:

Argument of Andrew Stuart Birrell

Chief Justice Rehnquist: We'll hear argument now in No. 03-44, Basim Omar Sabri v. the United States.

Mr. Birrell.

Mr. Birrell: Mr. Chief Justice, and may it please the Court:

Section 666(a)(2) of title 18 is unconstitutional on its face because it never requires the jury to find an element that the Constitution always requires.

The statute's unambiguous language allows a violation to be proved with entirely local conduct unrelated to Federal spending.

It thus intrudes deeply into an area the Court has recognized as one in which the States possess primary authority.

Chief Justice Rehnquist: Yet there's no doubt, Mr. Birrell, is there, that in some circumstances the statute could be constitutionally applied?

Mr. Birrell: There are no circumstances where 66(a)(2)... 666(a)(2) could be constitutionally applied, Your Honor, because the... because the statute never requires that the jury find a connection between the Federal spending and the offense conduct.

In the same way that there were possibly circumstances in Lopez where there might have been an adequate Federal connection, but because the jury is not required to find it, there are not any circumstances where the statute could be constitutional.

Justice Scalia: Why... why can't it be constitutional under the Commerce Clause?

I know the Government doesn't rely on that, but respondent can be supported here on any... any ground.

Why... why isn't this a commercial transaction as... as, you know, our... our Commerce Clause law is?

So long as the transaction is commercial, we will assume it's interstate commerce.

We'll accept Congress' judgment on that.

Why isn't a commercial transaction when you bribe somebody?

Money for... for whatever the favor he does.

Mr. Birrell: A couple things, Your Honor.

First of all, there is not a requirement that interstate commerce nexus be proved in the statute.

Justice Scalia: That's not necessary.

So long as it's commercial, our cases... our recent cases, say so long as it's commercial, we'll accept Congress' judgment that it's interstate.

Mr. Birrell: Well, if Congress could create commerce... Commerce Clause jurisdiction everywhere that it could spend money, then--

Justice Scalia: No, no, not everywhere it could spend money.

Everywhere there is a commercial transaction.

One of our cases, for example, held that loan-sharking could be covered under the Commerce Clause because it was a commercial transaction, just as illegal as... as the... the bribery here, but if that could be covered by the Commerce Clause, why can't this?

Mr. Birrell: --Because without... without a showing that in each case there was a connection between interstate commerce and the transaction--

Justice Scalia: That's not what our cases require.

Justice Breyer: Is that true of the drug statutes too?

Mr. Birrell: --I'm sorry, Your Honor?

Justice Breyer: I mean, is it true whenever the Feds prosecute a person for a drug transaction, a jury has to determine there was a connection between these drugs and interstate commerce?

I've never heard of that requirement that... that the... that the jury would have to determine whatever facts are necessary for the statute to be constitutional even... even though that's not an element of the offense.

Does that come out of a case or someplace?

Where does it come from?

Mr. Birrell: Well, unless... unless there was an understanding that in every instance there was an effect on interstate commerce, then--

Justice Breyer: I mean, there might be instances where there's no effect on interstate commerce, a home... you know, that... that will be an issue, homegrown marijuana.

So suppose there is some drug somewhere that has no effect.

It just didn't.

There could be such a thing.

We can imagine it.

But does that mean in all these other cases that Congress... that the statute is void because the jury hasn't found... I'd be repeating myself.

You answer.

Mr. Birrell: --I... I think that it is different because the Commerce Clause is... is a regulatory power that permits Congress to regulate.

The Spending Clause power is... is a different sort of power.

It does not make that--

Chief Justice Rehnquist: And you say here Congress does not rely on the Spending Clause because it... it makes conduct criminal against an individual.

Mr. Birrell: --I believe that Congress passed this law under the Spending Clause power.

I believe that's what they intended to do.

All the--

Justice Ginsburg: To spend for the general welfare was the basis in the court below and that combined with Necessary and Proper.

Mr. Birrell: --That's right, Your Honor.

Justice Ginsburg: And that's the position that was taken below, and I think most of the courts of appeals went on that same ground.

Mr. Birrell: It's my understanding that every court that has looked at this has said that Congress attempted to pass this... this particular statute under the Spending Clause.

Justice Scalia: Does... does it matter what they intended to pass it under?

I mean, if they have the power under another... under another head, would... would that not be enough?

Mr. Birrell: That is true, Your Honor.

They could... they could... the statute could be upheld if Congress has the power to do it on any basis.

Justice Ginsburg: The justification sounds like a Spending Clause justification, doesn't it, that the... that they could not by a lesser means safeguard these Federal funds?

They tried narrower statutes and they didn't work.

But what they were trying to do was to safeguard the integrity of the money that they were giving to these units by not having corrupt operations.

Isn't that the case?

Mr. Birrell: That... that's what they said they were trying to do.

They were trying to regulate the integrity of... or... or police the integrity of organizations, agencies, and local and State governments that receive Federal funds.

That's what they said they were trying to do.

Justice Ginsburg: And why is that not satisfactory?

Mr. Birrell: It's not satisfactory because the statute doesn't require any connection between the spending... Federal spending and the criminal conduct.

Justice Kennedy: Suppose that, just to use an analogy in the private sphere, a major corporation has a choice of two subcontractors and one subcontractor is known for engaging in lots of bribery and kickbacks, et cetera.

It's confident that it's got auditors that will be able to protect it in this instance.

But don't you think if you were the CEO of the corporation, you'd rather prefer... rather deal with the subcontractor that was always clean?

It's just a common sense business judgment, and that's all the Government is doing here.

Mr. Birrell: That's not what the Government is doing here, Your Honor.

What the Government is doing here is to criminalize purely local conduct.

They're criminalizing conduct that has no relation to any Federal spending.

Justice Kennedy: Well, it has relation because it wants to give its funds to those entities that it has confidence in with respect to all of their operations.

Mr. Birrell: Well, it can make a choice about giving money or not without criminalizing conduct.

Congress has a number of ways that it can protect its Federal money.

It can protect it under Commerce Clause, Property Clause, not giving money, relying on the States to do... to do what they need to do, False Claims Act, conditional spending.

There's--

Justice Breyer: They really say if we find a city council that takes money and... from us, the city council takes the money for us for some of its programs here.

There's a corrupt city councilman.

We want to prosecute that person.

Why?

Because we want council... members of councils to know that we're not going to tolerate corruption on behalf of the agency that's giving out our money, whether in the particular instance it involved our money or not.

Now... now, why isn't that sufficient connection?

Mr. Birrell: --Because, Your Honor, there is... it may be that what... that is what the Government wants to do, but the question is whether the Government has the power to do that.

Justice Breyer: That's true, but why doesn't it?

Mr. Birrell: It doesn't have the power to do that because there's not an element in the statute that requires there be a connection proved between the Federal spending and the wrongful conduct.

There may be one, but the jury is not required to find one.

Justice Scalia: Suppose the Federal Government had recast the statute and said no State can get... what's the limit... $10,000 or more from the Federal Government unless it agrees to criminalize and impose the same penalty set forth here for any State corruption.

Would that be constitutional under the spending power?

It's a condition to the grant.

Mr. Birrell: It might be if--

Justice Scalia: It unquestionably would be, wouldn't it?

It's take it or leave it.

It's--

Mr. Birrell: --Assuming it wasn't--

Justice Scalia: --it's connected to the grant.

It has some remote connection to it.

That ought to be enough.

It just seems very strange to me that the Federal Government would be able to compel the State to impose such criminal penalties, but it cannot itself do so in connection with its spending.

Mr. Birrell: --In... in Your Honor's hypothetical, it might be coercive, unduly coercive, but other than that, I don't see a problem with your hypothetical.

But there's a... the... the Court... this... the Court has said that Congress can attach conditions to money provided that the four Dole factors are met.

But that is not what's occurring here.

This Court has never said that Congress can use the Spending Clause power to create a criminal law statute.

And the danger with this is--

Justice O'Connor: Well, have we ever said it can't?

Mr. Birrell: --Well, only inferentially by Dole.

So the question is never square with--

Justice O'Connor: I think it's kind of hard to read Dole for that proposition.

I may have missed your response to an earlier question.

You... you bring a facial challenge.

Why should we entertain a facial challenge?

What if we treated it as an as-applied challenge?

Do you say the Government cannot prove the elements that you think are necessary and thereby obtain a conviction?

Mr. Birrell: --I... I say that we... we properly bring a facial challenge because the statute has no element requiring a connection between the Federal spending--

Justice O'Connor: I don't... we don't normally entertain facial challenges to statutes on a ground like that.

If it could be applied properly in an individual case, why would we entertain the broader challenge?

Mr. Birrell: --This statute cannot be properly applied in any case.

It's always unconstitutional because it lacks this connection element.

The statute is like--

Justice Scalia: You say because it lacks the requirement of a jury finding that there was the connection.

Mr. Birrell: --Yes.

Well, there are two concepts, both that there's not an element and that the jury doesn't need to find it.

This statute is... is like the statute in Lopez.

Chief Justice Rehnquist: Well, what if... what if Congress had found that interstate commerce is involved here and did not provide for an individual jury finding in every case, would your argument be the same?

Mr. Birrell: I don't know, Your Honor, but Congress didn't make that finding.

Chief Justice Rehnquist: It's a very candid answer.

Unknown Speaker: [Laughter]

Justice Breyer: Where... where does this... I mean, I've asked you this before, but I'm not sure.

Where does this jury finding thing come from?

It's quite interesting.

But... but where... I mean, suppose that Congress passed a statute under the Patent Clause criminalizing certain conduct in respect to patent, and at the border there might be an... a question of whether it does or does not fall within the Patent Clause, that particular criminal behavior.

But I wouldn't jump from that fact that you'd have a legal argument it's outside the Patent Clause to the conclusion that therefore a jury has to find in every patent crime... a jury has to find that it is within the clause.

I'd have thought that was a question for the judge, not the jury.

So you've been emphasizing the contrary idea, and where do you get it from?

Mr. Birrell: Well, in the... in the... in Your Honor's Patent Clause hypothetical, that is a case where the Court would... or the Congress would have a... an enumerated regulatory power.

This is... this is a different thing.

Now--

Justice Scalia: Well, it has the Commerce Clause power.

I... I don't understand your reliance on Lopez.

You just said just... just as Lopez was bad, whether or not there... Lopez was... was bad because it was not commerce, which is a judgment that this Court will make, whether it's commerce or not, but once it is commerce, you're in a different ball park.

Once it is commerce, we assume it's interstate commerce, and that explains, you know, a whole bunch of our cases, such as our loan-sharking cases.

So Lopez has nothing to do with this case.

Lopez was not commerce.

Now, you... you may argue that... that bribery is not commerce although loan-sharking is, but I'm not sure how strong an argument that is.

Mr. Birrell: --This case is like Lopez because the way I read Lopez... I mean, I understand your point about whether the conduct in Lopez was commerce conduct or not, but the way I'm reading Lopez is that the point is that when you're on the... the fringes of the power, commerce power in that case, that there needs to be a... an element where the jury would find in each case that there was a connection between the exercised power of Congress and the conduct.

So in our case--

Justice Scalia: You think there is such a... such a connection with loan-sharking, good, old, local, you know, break-your-knees loan-sharking.

It's not... not an interstate thing.

Mr. Birrell: --Well, you've... you've told me that... that the Court has said that there is, and I... I accept that.

Justice Kennedy: That's United States v. Perez.

We took a very expansive view of the Commerce Clause.

And it was pretty much of a local transaction in... in the case, but the Court pointed out, you know, the ripple effect that all commercial transactions have.

Mr. Birrell: Well, I would return to my point that I think that if the Congress can create Commerce Clause jurisdiction by spending money and Congress is entitled to spend money under the Constitution anywhere it deems it important for the general welfare, then what would naturally follow, it seems to me, is the general police power that the Constitution denies to the Federal Government.

It seems to me to be an inescapable chain of reasoning that will get us there.

Justice Ginsburg: Have any local law enforcement offices complained about the Federal presence?

Mr. Birrell: There... there's nothing in the record about it, and I don't have anything to offer outside the record of it.

But the... the question whether the local governments or government agents consent to an invasion of their area of authority is... is not dispositive.

Justice Ginsburg: Question whether they regard it as an invasion of their authority or rather a legitimate endeavor by the Federal Government to protect its money.

Mr. Birrell: Well, the... the statute doesn't require the Federal Government to be acting to protect its money.

There... there is not any requirement that this money be the Government's money.

For example, a private citizen offers a... a bribe to an agent.

It could be an agent of a... a corporation.

The offer is refused and 12 months later and for the first time more than $10,000 is given to an unrelated part of the agent's business, the business the agent works for.

Then we now have a Federal crime committed.

There's not any requirement in the statute that there be a connection between the Federal money and the offense conduct.

And furthermore, there's not any requirement that the jury find it.

Chief Justice Rehnquist: Would you like to reserve the balance of your time, Mr. Birrell?

Mr. Birrell: I will reserve the balance of my time, Your Honor.

Argument of Michael R. Dreeben

Chief Justice Rehnquist: Very well.

We'll hear from you, Mr. Dreeben.

Mr. Dreeben: Mr. Chief Justice, and may it please the Court:

The court of appeals correctly held that section 666 does not require proof of a Federal connection between the offense conduct and the federally funded program or Federal funds beyond that which the text of the statute itself requires.

Chief Justice Rehnquist: What... what is the basis, Mr. Dreeben?

Under what authority did Congress pass the statute?

Mr. Dreeben: Mr. Chief Justice, the Government has relied on Congress' Necessary and Proper Clause authority to protect its Spending Clause expenditures and programs in this case.

I recognize that the Commerce Clause could also provide a basis for Congress to reach transactions involving criminal activity that affect commerce, but this Court in Salinas v. United States, in describing why section 666 was constitutional, as applied to the facts of that case, discussed that there was a legitimate Federal interest in protecting the particular program that corruption had affected in that case.

And the outgrowth of section 666 historically is of an effort by Congress to improve on previously deficient methods of protecting federally funded programs.

There were--

Justice Scalia: How far does that go?

What if... what if the Federal Government gave the State $1?

Could it make... could it make it... it a crime for any person to bribe any State officer anywhere in any program at all?

You know, the... really is... is there no end to the... to the scope of Congress' purported protection of its funds?

Mr. Dreeben: --Justice Scalia, I think that this Court recognized, as recently as last terms in Jinks v. Richland County, that analysis under the Necessary and Proper Clause is deferential, tracing its roots back to M'Culloch v. Maryland, but there is an attenuation element to the analysis.

The law does need to be conducive and plainly adapted to the end that Congress is seeking to protect.

And in your example of $1 to a State and then protection through criminalizing the activities of hundreds of thousands of agents, there might be an attenuation problem.

Justice Scalia: Do you think $10,000 is... is clearly... what's... what's the... what's the annual budget of New York State, do you know, or California?

Mr. Dreeben: Okay.

The annual budget of California is... at least in 1999, was $242 billion.

Justice Scalia: 242 billion dollars.

Mr. Dreeben: And the Federal Government--

Justice Scalia: And because there's $10,000 of Federal money, a drop of Federal money in this sea of... of California funds, the... the Federal Government can control the whole thing.

Mr. Dreeben: --But there's not a drop.

There's a virtual flood.

There was--

Justice Scalia: No, no.

But for the statute to apply, it takes only $10,000.

Mr. Dreeben: --It does, Justice Scalia, but Congress was well aware that every State is the recipient of billion upon billions of dollars in Federal aid.

There is substantial Federal money flowing to all of the States, and Congress could have dispensed with any dollar limitation whatsoever with respect to State aid and simply made a per se finding that Federal money is so infused into the State's budgetary activities, Federal programs are so pervasive--

Justice Scalia: How much does it give California?

I just... just--

Unknown Speaker: [Laughter]

Justice Scalia: You say it's a big... a big figure.

I believe you, but--

Mr. Dreeben: --As of... as of 1999, California received $35,955,000,000.

Justice Stevens: --But why is California relevant?

This is Minnesota, isn't it?

Unknown Speaker: [Laughter]

Mr. Dreeben: Justice Stevens--

Justice Scalia: It was my fault.

I brought it up as a hypothetical.

Right?

Unknown Speaker: [Laughter]

Mr. Dreeben: --But I have Minnesota too.

[Laughter]

Minnesota received... Minnesota's budget was $36 billion, and it received 4,000,000,496 Federal dollars--

Justice Breyer: What about Massachusetts?

Unknown Speaker: [Laughter]

Mr. Dreeben: --Justice Breyer, I only have 30 minutes and there are 50 States.

[Laughter]

Justice O'Connor: Mr. Dreeben, I am concerned about the breadth of your reliance on the Necessary and Proper Clause and the Spending Clause power here.

It seems to me that Federal funding extends to a huge range of activities, and why, under your theory, couldn't Congress make... take over the entire criminal law scheme because it affects Federal taxpayers?

I mean, I don't see any limit to your theory, and I'm curious why you're so reluctant to rely on the Commerce Clause.

What's going on in this case?

Mr. Dreeben: Justice O'Connor--

Justice O'Connor: Are you trying to overcome the problems of Lopez somehow, get a new thread of analysis that gets you out from under that?

What's... what's happening in this case?

Mr. Dreeben: --No.

I think there are ample avenues for the Federal Government to legislate, when things involve interstate commerce, without worrying about Lopez.

I believe the Court could uphold the statute as a regulation of interstate commerce, but it was clearly not designed with that in mind, and this Court did not so regard it, or at least didn't articulate itself as regarding it that way in Salinas v. United States.

The problem that Congress was trying to solve was a very particularized problem, not the generalized problem of there is crime in America, therefore it will affect federally funded activities.

The problem that Congress was trying to solve was that it would give Federal money to particular entities to... to administer Federal programs, and there would be crime that had the potential to affect those Federal interests, but because of deficiencies or perceived deficiencies in prior statutory law, that crime could not be prosecuted.

In particular, with theft crimes there was a problem because once title had passed with the money to the local entity or State entity, some courts were saying that was no longer theft from the Federal Government and the theft statute didn't apply.

With respect to the Federal bribery statute, 18 U.S.C. 201, lower courts had divided on whether State and local officials who were administering Federal programs could be held accountable as Federal officials.

And to remedy those deficiencies of prior law, section 666, as the court of appeals I think aptly described it, changed the enforcement paradigm, and it said that what we want now is not to focus on particular Federal monies that we have difficulty tracing into federally funded entities or who is a Federal official.

We want to make sure that the entities that we fund to carry out Federal assistance programs are clean, and the way that we are going to do that is to draft a prophylactic statute that ensures that all agents who are involved in the authority to conduct business on behalf of the entity are not engaged in significant acts of theft, embezzlement, or bribery.

It, therefore, included various limitations in section 666 that prevent it from being an all-encompassing, all-devouring statute that sweeps in all related crimes to the entities that are funded.

There's a $5,000 limitation with respect to the transactions that are going to be influenced.

It's not every traffic ticket that is issued by any State agency.

And there is a... a condition, of course, that there be $10,000 of Federal money going into the entity.

Of course, there are going to be cases under this statute where it will be difficult to articulate a clear--

Justice Scalia: $10,000 annually or is it just a... could it be a one-shot deal?

Mr. Dreeben: --It's... could be a one-shot deal.

it's a $10,000 grant during a 12-month period that spans the offense conduct in question.

And as I was saying--

Justice Scalia: If... if the State got... I mean, the way you read it, just because you got $10,000 last year doesn't mean that next year you're still subject to the act.

It has to be--

Mr. Dreeben: --That's right.

Justice Scalia: --during the year.

Okay.

Mr. Dreeben: That's right.

The offense conduct has to be--

Justice Scalia: It says in any 1-year period, but I... I assume that that means--

Mr. Dreeben: --Any 1-year period, but there's another provision in the statute that makes clear that the period can include time before the offense conduct and time after the offense conduct, which is naturally read to mean that it has to span the offense conduct.

And that provision was designed to overcome the difficulty that State and local agents would be bribed for activities that they would have the power to engage in once the Federal money was awarded to their agency.

And in anticipation of Federal money coming into the entity, the officials could engaged in corrupt conduct.

Justice Scalia: --I assume this means that the Federal Government could also criminalize federally robbery or burglary committed against a private individual who has received Federal funds, who has received a Federal subsidy in one way or another.

Right?

Mr. Dreeben: Yes, Justice Scalia, within limits.

I think that there could be a... a point in time at which the Court might say that if the Federal Government passed a statute that said every robbery involves--

Justice Scalia: I mean, that's probably all of us, you know.

Justice O'Connor: All welfare recipients--

Mr. Dreeben: --All money--

Justice O'Connor: --all Medicare beneficiaries, and so forth?

Mr. Dreeben: --Well, the Court... the Court long ago upheld in United States v. Hall a statute that prevented fraud and embezzlement directed at funds going to veterans.

So it has already upheld statutes in which the Federal interest in protecting the beneficiary's use--

Justice Scalia: It was limited to the funds, though.

It didn't say anything you... anybody who gets any money from a veteran is... is... you know.

Mr. Dreeben: --That's--

Justice Scalia: And that's what this says.

Anybody who... who bribes any State official, whether the Federal funds are at issue or not.

Mr. Dreeben: --Well, this... this statute, though, I think rests on a generalization that is less attenuated and more reasonable than statutes that would take the form of the statute Your Honor has described.

This statute basically says if you have corrupt officials in the entity that's getting Federal money, we have reason to worry that you have poor internal controls, that you have a culture of corruption, that you have insufficient mechanisms to root it out, and that the officials that are engaged in corruption today with respect to State money may tomorrow be engaged in corruption with respect to Federal money.

Justice Breyer: So... so call... call this the clean funnel rationale.

The agencies are funnels funneling money to the... and say, look, we have a pretty strong rationale here.

We want clean funnels because a little bit of the money going through is Federal.

Take that as given.

If I were to say you're right, what's the standard where the Spending Clause is at issue?

What words would be used there?

And the reason that this is difficult at the moment for me is because this is not a condition imposed upon spending.

You're not saying to the State, we'll give you the transport money if you... this is really a Federal law protecting the... the spending.

You may be right in this case, but we're going to have to say some kind of standard.

Should we say it's just whatever would be necessary and proper to protect the object of the spending, which is quite far out because you can spend for things you don't have otherwise have the power to do?

Or should we say something else, or should we say we don't have to reach that here because if in fact the power would be there under the Commerce Clause anyway, that at least is good enough and isn't a stretch of the Spending Clause where there's a necessary and proper rationale?

What in your view is the proper way to write those words?

Mr. Dreeben: Justice Breyer, I think the most logical way to write this opinion is to rely on the test that this Court articulated in 1819 through Chief Justice Marshall with respect to the power under the Necessary and Proper Clause.

Here the enumerated power that's being protected is the spending power.

The Necessary and Proper Clause was long ago construed to give Congress substantial deference to past laws so long as they are conducive to the end that Congress is trying to achieve and its legitimate.

Justice Kennedy: The... the M'Culloch language?

Let the end be legitimate--

Mr. Dreeben: That's... that's correct.

That's correct, Justice Kennedy.

Justice Kennedy: --Suppose that... that to... to take the phrase, the clean funnel theory, we thought that that theory is best sustained under the Commerce Clause.

What would be the closest case that we could cite in support of our position if we were writing under the Commerce Clause?

Are there cases in which governmental entities and... and their... the integrity of the operations are protected under the Commerce Clause?

Have we ever talked about that?

Mr. Dreeben: I can't think, off the top of my head, Justice Kennedy, of a Commerce Clause case that was specifically directed at governmental activity.

Of course, this statute is not specifically directed at governmental activity.

It's directed at any fund recipient, be it private, Indian tribe, or governmental.

So the Court could rely on cases probably like Reno v. Condon in which the Court upheld a law that dealt with an item in commerce, be it in the hands of the Government or in hands of private parties.

And of course, United States v. Perez did uphold a very broad view of the Congress' power to regulate transactional conduct.

Justice Kennedy: No governmental entities in that case, as I recall.

Mr. Dreeben: No governmental entities in... in Perez, but of course, this case doesn't focus on governmental entities as such.

What it focuses on them is... it focuses on them in their capacity as administrators of funds that are paid out under Federal assistance programs.

It treats them identically to private entities that also receive Federal funds under Federal programs, which is strong evidence that what Congress had in mind here was ensuring that its purposes and goals under the Spending Clause aren't frustrated by corruption within whatever entity it is that happens to be taking the funds to administer the program.

Justice Stevens: I think some of our--

Justice Ginsburg: --Is the... is the Spending Clause... is it... is it something new or were the statutes that were inadequate, the predecessors of 666... what was the constitutional heading of authority that the predecessors of 666--

Mr. Dreeben: Justice Ginsburg, 18 U.S.C., section 641, which was the Federal theft statute, was really a protection of Federal property, and that probably could be justified under a variety of enumerated powers under Article I.

18 U.S.C., section 201 was the Federal bribery statute that primarily focuses on people who are Federal officials or who are designated to become Federal officials.

And this Court in United States v. Dixson interpreted the statute to cover State and local officials who were administering Federal programs because they were acting on behalf of the United States.

And with respect to that branch of section 201, although the Court did not address the constitutional question in Dixson, I think that the proper grant of authority to analyze it is the Necessary and Proper Clause as applied to the spending power because it, like section 666, criminalizes the activities of non-US persons because they are engaged in an activity that relates to federally funded programs.

So the theory of protecting through criminal law the misdeeds of agents that may impair Federal programs or impair Federal funds is not new.

What was new about section 666 was its removal of the impediments that Congress found in the prior law so that it could have an effective mechanism to ensure the integrity of its programs.

The case that is before the Court today is a facial challenge to section 666, arguing that it is always and everywhere unconstitutional.

That submission is impossible to reconcile with this Court's decision in Salinas v. United States which specifically said that as applied to the conduct in that case, where there was a connection to a Federal program, the statute was constitutional as applied.

What that means is that the court of appeals was clearly correct in holding that section 666 is not facially unconstitutional.

It leaves open whether there is an as-applied constitutional challenge to section 666.

No such challenge was brought in this case, and the United States made a proffer to the district court indicating how the particular bribery in this case would have had an effect on Federal funds and Federal programs, making clear that no such as-applied challenge would have succeeded.

So the only way that petitioner can prevail in this case if this Court is prepared to say that notwithstanding its prior decision in Salinas, holding that section 666 was constitutional as applied, it now turns out that section 666 is facially unconstitutional and can never be applied to anyone anywhere.

We submit that that is incorrect.

Justice Kennedy: --If there were a nexus requirement that we wrote into the statute... the hypothetical gets a little murky at this point... would... would juries have to find that there was a nexus or could the judge instruct--

Mr. Dreeben: Judging from the way that this Court resolved the Salinas decision, Justice Kennedy, it would be a constitutional as-applied challenge to be resolved by the Court.

This Court in Salinas said that the statute was constitutional as applied and there had been no jury finding on any nexus requirement.

Justice Kennedy: --But in subsequent trials, if we found a nexus requirement, would the juries have to determine the nexus?

Mr. Dreeben: I don't think that they would, Justice Kennedy.

Just as in a case like New York v. Ferber where the Court held that child pornography can be outlawed across the board, the statute is not--

Chief Justice Rehnquist: Well, but--

Mr. Dreeben: --It's not invalid on overbreadth grounds.

Chief Justice Rehnquist: --Yes.

Mr. Dreeben: But the Court left open the possibility that there would be as-applied challenges, and it didn't suggest that those as-applied constitutional challenges would raise jury issues.

They would instead raise issues of law for the--

Chief Justice Rehnquist: Well, but if Congress in its... in... in the statute says there must be some connection with interstate commerce, then certainly it's a jury issue.

And Justice Kennedy's question, as I understood it, was that supposing the Court were to read in a nexus requirement, just exactly what Congress might have put in.

You say that would not be a jury question then.

Mr. Dreeben: --I am judging, Chief Justice Rehnquist, by the way that this Court resolved the legal issue in the Salinas case.

The Court would have two options open to it if it decided, contrary to our arguments today, to read in some sort of a nexus requirement.

It could do what the Second and Third Circuits have done, which is, we think incorrectly, superimpose on the statute as an implicit element that has no textual foundation some sort of a Federal nexus.

Now, if the Court did construe section 666 to require a Federal nexus, that's clearly a jury issue under United States v. Gaudin.

Every element, be it implicit or explicit, has to be found by the jury.

But alternatively, I understood Justice Kennedy to be suggesting that there could be a constitutional overlay to ensure that there was no unconstitutional application of section 666, and if it's treated as a pure constitutional question, then I think the better reading of this Court's decisions is that it would be a question of law--

Chief Justice Rehnquist: Do you think this Court's decisions have been consistent on that question?

Unknown Speaker: [Laughter]

Mr. Dreeben: --I think they have been groping towards consistency.

[Laughter]

Justice Scalia: Let me write that down.

Groping towards--

Unknown Speaker: [Laughter]

Justice Scalia: I can... I can use that in--

Unknown Speaker: [Laughter]

Justice Ginsburg: Mr. Dreeben, what answer do you give to the dissenting judge in the Eighth Circuit who said it is now a Federal crime for an auto mechanic to induce a public high school principal to hire him to teach shop class by offering free car repair?

Mr. Dreeben: Well, so long, Justice Ginsburg, as the statutory valuation elements are met, that the transaction involves $5,000 or more, which it probably would, given teacher salaries, then it would be covered by section 666, and the Government would have discretion to prosecute it.

I think what that illustrates is that the broad prophylactic approach that section 666 takes leads easily to the manufacturing of hypotheticals that seem attenuated from core Federal interests.

And the choice that Congress had before it was to draft a statute that would go to that degree of breadth but eliminate impediments that had previously hobbled the enforcement of a law or draft a statute which Congress believed was both under-inclusive and would put to the jury perhaps difficult and murky issues of whether there really was a Federal connection that justified application of the statute.

And let me give an example because it's a very important, classic example of the way that we use section 666.

Suppose that there is a city council person or a mayor or some other official who has responsibilities for some respect... in some respects administering a Federal program or Federal funds, and he turns out to be engaged in corruption with respect to non-Federal monies and non-Federal programs.

The Government wants to prosecute him to ensure that he doesn't begin to widen his field of operation and harm the Federal program, but in the facts that can actually be proved, there's no connection between the Federal program and the offense conduct.

Conceivably could a statute be drafted that would allow the Government to say that's the kind of Federal nexus that's covered?

Certainly, but there are many, many hypotheticals where the potential injury to Federal interests is not necessarily going to be easy to articulate and prove to a jury.

As a matter of discretion, the United--

Justice Scalia: --Who... whose burden is it?

I mean, assume we accept your... your proposition that we should uphold it on its face, at least, and that future as-applied challenges will still be allowed.

Would it be the burden of the defendant to establish that... that this goes too far, that this is not reasonable protection of the Federal monetary interest?

Mr. Dreeben: Yes, Justice Scalia.

If it's a question of law, is the statute unconstitutional as applied, then the defendant should have the burden of establishing that.

But I understood Justice Ginsburg's hypothetical to raise the question what if Congress had drafted a narrower statute that had some sort of an offense nexus element.

Then we'd have to prove it up.

The United States Attorneys Manual does direct prosecutors to use 666 in cases where there's a substantial and identifiable Federal interest.

So what you have here is a combination of Congress saying we need a statute that's adequate to vindicate Federal interests and prior efforts to draft narrower ones have frustrated that goal.

We're going to draft a broader statute.

And then the Federal executive branch uses its discretion to prosecute cases that do, indeed, pose a real threat to Federal interests.

Now, that's as a matter of discretion.

It's not as a matter of constitutional law, and it's not as a matter of what the statute provides.

Chief Justice Rehnquist: Well, then why should we take that into consideration deciding the question before us?

Mr. Dreeben: It's not relevant, strictly speaking, to the constitutional question.

What it is relevant to is why it was rational for Congress to draft a somewhat broader statute without fearing that, by virtue of having given the executive branch this power, State criminal law would be thoroughly swamped, I believe as one of the dissenting opinions said.

Chief Justice Rehnquist: But what if you have a new executive coming in who is really hot on this subject and says we want to prosecute every case we can under it?

Mr. Dreeben: Then I'll have to withdraw this statement.

[Laughter]

Justice Scalia: Or an even more realistic hypothetical is the United States Attorney in Chicago or New York, who are not always, shall I say, responsive to the directives of central justice, bringing a prosecution against a political opponent that has really no connection with a Federal interest.

That might happen.

Mr. Dreeben: Justice Scalia, I often say that the only way that we get uniformity in Federal criminal law enforcement is from a decision by this Court.

If the Court has no further questions.

Chief Justice Rehnquist: Thank you, Mr. Dreeben.

Mr. Dreeben: Thank you.

Rebuttal of Andrew Stuart Birrell

Chief Justice Rehnquist: Mr. Birrell, you have 12 minutes remaining.

Mr. Birrell: Thank you, Your Honor.

Turning first to the discussion about Salinas, Salinas did not decide the issue presented in this case.

The constitutionality of the statute was not before the Court in Salinas.

Salinas was a question of statutory interpretation.

What the Court appeared to do was to conduct a harmless error review because the constitutionality had not been raised in the briefs, was not in the cert petition, and it does not impede our facial challenge.

I think that this... this--

Justice Scalia: You... you think Salinas, had the constitutional been raised, would have... should have come out the other way.

Mr. Birrell: --I think that if the constitutional issue had been raised in Salinas, it would have come out the other way, yes.

I think as well that if I could direct the Court to page 34 of our brief, that this will respond to the discussion about the element, that this is an analysis about the element in Lopez.

We would submit the same would apply here.

There are many noncommercial applications of this statute, for example, bribery regarding civil rights law.

So I don't think the Commerce Clause is... is the answer.

Furthermore, in... 666(a)(2) doesn't even require any actual recipient corruption because the third party to the funding contract under (a)(2) can... can offer a bribe to an absolutely incorruptible official and yet still be charged with a Federal crime.

The... the overreaching question in this case, Your Honors, is that Federal power must have judicially enforceable limits and this statute ignores them and is unconstitutional in every instance.

Thank you.

Chief Justice Rehnquist: Thank you, Mr. Birrell.

The case is submitted.

Attribution:

The Oyez Project

Featured:

Tennessee Student Assistance Corporation v. Hood - Oral Argument

Fri, 09 Jan 2009 14:49:06 +0000

Case:

Tennessee Student Assistance Corporation v. Hood

Media File:

02-1606_20040301-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Daryl J. Brand

Chief Justice Rehnquist: We'll hear argument now in No. 82... rather, 02-1606, Tennessee Student Assistance Corporation v. Pamela Hood.

Mr. Brand.

Mr. Brand: Mr. Chief Justice, and may it please the Court:

This Court's decisions recognize that even in subject areas where Article I grants Congress complete and exclusive authority to make laws, unconsenting States are still immune from suits by private parties.

Justice O'Connor: Well, let's talk a little bit about the notion that's raised in one or more of the amicus briefs, that a bankruptcy proceeding is akin to an in rem proceeding or is an in rem proceeding, such as might be the case in an admiralty suit where we would think the State would be bound.

Now, would you address that argument, which I found possibly persuasive?

Mr. Brand: Certainly, Your Honor.

We would submit that there... there is no authority from this Court supporting the view that there is an in rem exception from sovereign immunity in the bankruptcy context.

The argument instead is made by analogy, as Your Honor referred, to the... the admiralty case of Deep Sea Research, but the Deep Sea Research case is limited to the admiralty context.

It's limited to the special aspects of admiralty law that had developed over hundreds of years, certainly 200 years of... of our Nation's experience.

Justice O'Connor: Well, why doesn't it fit in the bankruptcy context too where the debtor's assets are assembled in kind of an in rem proceeding and the creditors share in it?

It could have very unfortunate consequences certainly if... if your position were upheld.

Mr. Brand: Well, Your Honor, although there certainly are in rem aspects to bankruptcy jurisdiction in the context of dealing with the property of the estate that is before the court and that is in the custody of the court, bankruptcy jurisdiction also embraces other... other aspects of in personam jurisdiction involving the parties and... and personal relationships.

Justice Kennedy: Well, could we just stick with the in rem for a moment?

Suppose there's a $100,000 on the usual free-for-all because there are more... the... the debts exceed that amount.

The State gets notice.

It decides it's not going to appear.

The bankrupt is... is discharged.

At the very least, if the State then later sues on the debt, is the... can the discharge be set up as a defense?

Mr. Brand: Well, Your Honor, there... there is authority from... from the lower courts that... that it could in fact, and that in... in that situation, the... the State might be bound by a general discharge order.

Chief Justice Rehnquist: Well, what... what happened here was something where... where a summons was issued to the State, wasn't it?

It was... the State didn't just remain outside and do nothing.

Mr. Brand: Well, that's... that's exactly right, Your Honor, and it also is a situation in which the State was not making a claim against the... the property of the bankrupt estate.

Justice Kennedy: Yes.

It's hard to think of a debt as part of a res.

I... I can't quite--

Mr. Brand: And that--

Justice Kennedy: --get that.

And I understand, but just on the basic point of whether or not just for a discharge of a debt, the State can be bound, you say you think it might be plausible, but the State would be bound by the judgment if it later sues on the debt.

Mr. Brand: --I don't want to concede that point, Your Honor.

I think there is authority certainly that would... that could support that, and there are decisions from the... from the circuit courts, particularly the Fourth, the Fifth, and the Ninth, which have held that a discharge order under those circumstances would be binding against the State.

But each of those courts has also upheld sovereign immunity as a bar to a suit against a State as the State asserts in this case.

Justice Stevens: But this is not a normal suit against the State.

This is a suit in which the debtor seeks authority to get a discharge, isn't it?

Mr. Brand: That's right, Your Honor, except that--

Justice Stevens: So the proceeding itself is to determine whether or not she's entitled to a discharge on the debt at issue.

Mr. Brand: --Yes.

She is... she has already received a bankruptcy discharge, a blanket discharge from debt.

This is a proceeding to determine if this particular debt qualifies under that.

And the way the statute is written, the way... the way Congress has set this up is that the debt is presumptively nondischargeable.

It is an exception from discharge until such point as the debtor establishes undue hardship, at which point the debt would be absolved and she would... she would, in effect, have a discharge.

But again, the... by... by the nature of the way the--

Justice Stevens: If she... if she prevails in that disputed factual matter, then it will be just like any other discharge case.

If... if the hearing goes forward and she prevails as a matter of fact, then it would be just like any other discharge case, wouldn't it?

Mr. Brand: --No, it wouldn't, Your Honor.

A normal discharge case would essentially not involve at all the adjudication of individual debts.

The discharge is--

Justice Stevens: No.

I'm saying if she prevails on the disputed issues of fact, thereafter it would be just like a normal discharge case.

Mr. Brand: --It... it... yes, if I'm understanding, Your Honor.

Yes, she would have, in effect, a discharge from that debt.

Yes.

Justice Scalia: Moreover, the... the fact that this proceeding had to be brought against the State was purely a result of congressional disposition.

Congress could have treated these debts to the State like all other debts, in which case they would have been automatically discharged.

Mr. Brand: That's exactly right, Your Honor.

Justice Scalia: So... so that the... the argument that the bankruptcy... the in rem nature of the bankruptcy procedure gives... gives her all the protection that the Constitution at least requires, vis-a-vis the State, it seems to me is a strong one.

It's only because of the statute that... that this action had to be brought.

If Congress really wants to discharge her from debts to the State, it could have done so by simply treating the State like all other debtors.

Mr. Brand: I think that's exactly right, Your Honor.

The debt could be treated as a discharged debt, in which case the State would certainly be bound by the operation of that law, but that is not--

Justice Ginsburg: Isn't it... isn't it odd that you are objecting to this proceeding where, if Congress then said, okay, we'll make it dischargeable, you will be worse off?

In other words, Congress is trying to ameliorate the ordinary effect of the bankruptcy law to give the State an advantage.

And your argument is to the effect of, Congress, you can treat us just like all the others, and we'll be worse off than we are now, but once you give us this favor, then you... the... the law is unconstitutional.

You can't give us a favor.

That seems to be the essence of your argument.

Mr. Brand: --No, Your Honor.

I... I would submit our argument... our argument is not that the State is immune from the effect of the statute that would allow discharge upon showing of undue hardship.

We would recognize that that is... that is an appropriate part of the... of the exercise of Congress' bankruptcy power.

Our issue is with the provisions which are there by virtue of the nature of the way that... that exception is written and also by virtue of the bankruptcy rules that require that it be raised in the form of an adversary proceeding in which the State could be summoned into court, in bankruptcy court, anywhere in the country.

Well, could it be adjudicated without an adversary proceeding, just say the debtor comes in and says, I'm giving notice to the State?

If they want to come in, they can, but it's not... it's... I'm not going to call it or the statute doesn't call it a summons and complaint, doesn't call it an adversary proceeding, just a proceeding to establish the status of this obligation.

Your Honor, I think as Justice Scalia suggested, Congress could write a statute that would make a student loan dischargeable, more or less by operation of law, but we would submit that the way this statute is written... and again, if we look--

Justice Ginsburg: I'm not asking about making it totally dischargeable, but Congress wants to achieve this result and sensitive to your concern.

So it says, fine, we're going to make it nondischargeable unless the student shows undue hardship, but because the State doesn't want to receive a summons and complaint, we're going to do it in a nonadversary proceeding.

The student will establish it to the satisfaction of the bankruptcy court or not, and the State will be given notice but not a summons and complaint.

Would that be satisfactory?

Mr. Brand: --Your Honor, I don't believe it would.

I think that in substance that would be essentially the same as the adversary complaint that... that we're talking about here.

And... and under... under Coeur d'Alene and... and the discussion in other similar cases, the question here can't turn on the mechanics of the pleading or on the... the style of the caption.

Justice Scalia: So you... you would have no problem with Congress' amending this statute so that it reads if the State chooses to waive its sovereign immunity, the debtor has to proceed in this manner.

However, if the State refuses to waive its sovereign immunity by appearing in the proceeding, the debt will be automatically discharged.

You... you would have no problem with that, I take it.

Mr. Brand: I'm not... I'm not certain that that would not be the same type of statute that I... I objected to a moment ago.

Justice Scalia: No. I thought you accepted that a moment ago.

I thought you accepted a moment ago that Congress didn't have to provide this special treatment of the States at all.

If Congress didn't have to provide it at all, certainly Congress could say if the State chooses not to... not to take it, not to appear in the proceeding, we'll dispense with it.

I... it seems to me the greater includes the lesser.

Mr. Brand: Well, I... I agreed, Your Honor, and I still agree that... that Congress could fashion a statute that would make student loans dischargeable in the same manner as... as any other debt.

And in... in that case, it... it would take place the same as any other debt.

And of course, if... if the State were to waive its sovereign immunity and enter into a bankruptcy proceeding and... and voluntarily participate, then... then it could do and... and the court could act accordingly without any special enabling legislation by Congress.

Justice Breyer: I... I don't understand what the statute has... how the statute is involved in this.

I mean, the statute just sets a standard for discharging a... a student who has an educational loan.

It says it has to be undue hardship.

What's wrong with that?

I mean, why can't... there are dozens of statutes... dozens of statutes that say... I guess dozens.

I'm not a bankruptcy expert, but statutes that say you get this kind of a discharge if there hasn't been a fraudulent conveyance, but if there has been, you don't get it, and if it's this, you don't get it, and if it's that, you do get it.

All these may involve debts owed to or... the State.

Are... are you saying... what has the statute to do with this?

The statute just sets a standard for getting a discharge.

Mr. Brand: Well, Your Honor, I... I believe that this statute... this particular subsection affecting student loan discharge is really unique within the exceptions to discharge.

Justice Breyer: All right. Let's assume it's unique.

Mr. Brand: There--

Justice Breyer: What is it in the Constitution or the Eleventh Amendment that says Congress cannot set a special standard for discharging a bankrupt from a certain kind of debt?

Mr. Brand: --Congress--

Justice Breyer: What... what in... what in the Constitution says that if that kind of debt happens to be one that is owed to the State, Congress is forbidden to do that?

I don't... I just don't understand it.

Mr. Brand: --Your Honor, we... we do not dispute that Congress has the power to set a separate standard for this type of debt--

Justice Breyer: I know and so why is the State, if it happens to be owed that kind of money, in any sort of a different position?

Mr. Brand: --Well, the... the question is not the effectiveness of the congressional determination regarding how to handle that debt, but rather the constitutionality of the means by which Congress--

Justice Breyer: Now, then what you're quarreling with is, of course, not the statute.

You are quarreling, as Justice Ginsburg pointed out, with a bankruptcy rule that happen to use the word adversary proceeding.

But suppose the rulemakers had simply said, this need not be done in an adversary proceeding.

It can be done in exactly the same kind of proceeding as discharging any other kind of debt.

I, the bankruptcy judge, will follow the congressional mandate as to when it is discharged.

You will notify all debtors, Mr. Bankrupt, including the State, and if they want to come in and protest it, they can.

Now, why... what would be unconstitutional about such a provision that never uses the word adversary proceeding?

Mr. Brand: --Well, Your Honor, our objection is not merely to the bankruptcy rules.

I would... I would repeat that... that--

Justice O'Connor: I read your position to be that the State isn't bound at all, for instance, that the bankruptcy court cannot discharge property liens held by the State.

I mean, I... I read your position as being that the State cannot be forced into any aspect of the bankruptcy proceeding.

Justice Breyer: And so did I.

Justice O'Connor: I guess... I guess the... you would say the State doesn't have to abide by the automatic stay.

Mr. Brand: --Oh, certainly not, Your Honor.

Certainly not.

And I thought that we were clear in our briefing that we... we recognize that the... the State would be bound by the automatic stay because it's automatic.

It is by operation of law and by operation of the Supremacy Clause--

Justice Breyer: I'd rather like to get the answer to the question which is I understand what position you took in the brief.

I want to know why.

I want to know what the logic is.

I can't find anything in the Constitution that says that Congress cannot impose the same standard in respect to discharging a debt owed to the State as it applies to a debt owed to anybody else.

Now, either you agree with that proposition or you don't.

And if you don't... and I think you don't... I'd like to know what the theory is.

Mr. Brand: --Your Honor, I agree that Congress can make those distinctions.

I--

Justice Breyer: Fine.

Once you agree with the proposition, then all your objecting to is the word adversary in the word adversary proceeding, and it takes 3 minutes or less for a good expert simply to get rid of that adversary proceeding and have the same thing done in an ordinary proceeding.

Now, I want to know the answer to what I say, not that you disagree with it.

I know you disagree with it.

I want to know why you disagree with it.

Mr. Brand: --I disagree with it because the... the legislative reports as to that subsection, section 5239(a)(8), strongly point out that the statute... that that subsection is intended to be self-executing and that the creditor, the lender, the guaranteer, the... the guarantee institution, are not required to initiate action but instead can rely on the nondischarge, on the exception from discharge.

So by... by structuring the... the exception that way, we would submit that Congress, as this Court has recognized in other situations, has given elevated status to that creditor's position, has recognized that creditors of those kinds of debts have interests in the payment of those debts that outweigh the normal fresh-start policy that... that underlies bankruptcy.

So our position is that it does turn on the nature of the statute and not merely those bankruptcy rules that require--

Justice Scalia: The statute... the statute doesn't... doesn't require, does it, that that preferred position be established in an adversary proceeding?

Mr. Brand: --Certainly not by express terms, Your Honor, but... but again, the rules... rules made consistent with that statute, together with that legislative purpose, would certainly indicate that... that--

Justice Scalia: And I suppose you're saying this is an adversary proceeding.

Regardless of whether--

Mr. Brand: --Oh--

Justice Scalia: --regardless of how... how it got to be so, whether it got to be so through rule or through anything else, it's an adversary proceeding and the State cannot be hailed in in this fashion.

Mr. Brand: --That's exactly right, Your Honor.

There's no dispute about that.

I mean, this--

Justice Breyer: No, but there is a dispute about whether you could, in fact, call this kind of adversary proceeding, given the underlying standard that all it is is a way of getting to the same result, really not an adversary proceeding for purposes of the Eleventh Amendment, since it has no functional difference whatsoever from a proceeding that isn't labeled adversary but simply gives the State notice of what's going on and permits the State to come in, just as if it worked, which is ordinary proceedings.

Mr. Brand: --Except that ordinary proceedings in bankruptcy, as I mentioned earlier, do not involve the individualized adjudication of debts.

They involve other issues.

They involve martialing the assets.

They involve assessing the--

Justice Breyer: That's a good answer.

Justice Stevens: Mr. Brand, can I ask you--

Justice Breyer: --Now, what about--

Justice Stevens: --May I ask one question?

Did I understand you correctly to say that you did not contest the fact that if... if... that if they had a blanket rule that all student loans are automatically dischargeable, that would be true even if the creditor was a State?

Mr. Brand: --Certainly, Your Honor, and the--

Justice Stevens: And does that mean you also would agree that any ordinary commercial obligation to the State such as paying rent for an... an office suite or something like that could also be dischargeable and there would be no sovereign immunity problem there?

Mr. Brand: --Yes, Your Honor, and the reason... the reason I agree to that is because that does not require an adjudication.

It... it would occur by operation of law by which--

Justice Stevens: Well, but there has to be... there has to be a final order in the bankruptcy proceeding discharging... you know, giving the... the debtor a discharge.

Mr. Brand: --But we would submit in a... in a very real sense that would be surplusage.

Justice Stevens: But the... but the net result is I thought your position in your brief was somewhat different from that.

That's why I wanted to be sure about it.

You do agree that... that the sovereign immunity is not a valid objection to a discharge of a bankrupt estate.

Mr. Brand: That's... that's right when the discharge is by operation of law.

And again, I would analogize to the... the situation of the automatic stay provision that... that Justice O'Connor raised.

Again, that operates automatically when the--

Justice Stevens: So, but the difference in the automatic stay if the... if the debtor had to go in and prove his name, serial number, and rank or something first, so it wasn't completely automatic, then you would say you have a sovereign immunity objection.

Mr. Brand: --Possibly, possibly not.

Again, I would submit that there's authority from lower courts that would... would possibly--

Justice Stevens: Well, I'm really not so much interested in the authority from the lower courts as I am curious about your position.

What exactly does the sovereign immunity defense protect for you?

Mr. Brand: --In this case the sovereign immunity defense protects the State from being made a defendant and from having compulsory process issued against it to appear in a bankruptcy court that could be in any State of the union in this case.

Now, the... the reason I was referring to authority from other courts is to... is to remind the Court that all of the courts that have... that have made the type of holding that Your Honor is referring to have also recognized the applicability of Eleventh Amendment immunity in adversary settings.

Justice Stevens: I know, but it seems to me somewhat anomalous to say that if you want to do it without giving us a hearing, you can go ahead and do it, but if you give us notice and a hearing and an opportunity to respond, then you're protected by the Eleventh Amendment.

Mr. Brand: Well, again--

Justice Stevens: A rather strange position.

Mr. Brand: --again, Your Honor, I think... I think we're talking about very different things there.

There is... there is quite a difference between the general discharge, which again occurs without individualized adjudication of... of debts... that is... that is a distinct thing under the bankruptcy laws from a situation in... in which there's a proceeding involving the dischargeability of a particular debt--

Justice Stevens: Well, you say--

Mr. Brand: --such as we have here.

Justice Stevens: --it could well be that the State filed a claim and proved up its claim and then there's not enough money to pay it, the claim, but there would be some kind of proceeding to establish the claim.

Would that be different then?

Mr. Brand: Well, in... in a case where the State had filed a claim, the State would have voluntarily appeared in the... in the proceeding as relates to the subject matter of that claim.

So there would not be any sovereign immunity situation there at all.

Justice Stevens: So that if the State voluntarily appears, it would automatically waive its sovereign immunity defense.

Mr. Brand: As to that claim, yes.

Chief Justice Rehnquist: Well, that's the Gardner case, isn't it?

The--

Mr. Brand: Yes, I believe so.

Yes, Gardner v. New Jersey.

Justice Kennedy: --Tell me how bankruptcy works.

Is the United States trustee potentially part of any proceeding that the trustee wants to be involved in?

Can the trustee have come into this proceeding voluntarily if... if he or she chose?

Mr. Brand: I... I believe so, Your Honor, but I'm not certain if that is applicable in every... in every district.

And I'm not... I apologize.

I'm not certain as to that.

I know the U.S. trustees have... have those powers and responsibilities in at least... at least a good number of bankruptcy--

Justice Kennedy: Because it does seem that if an action is brought by a U.S. trustee, that's an officer... that's the Federal Government.

Mr. Brand: --Well, certainly that would be a different situation and certainly the State--

Justice Kennedy: Which is another way of solving this problem.

Mr. Brand: --That's right, Your Honor.

That's... that's conceivable.

Certainly the State would have no sovereign immunity from... from an action by the United States.

Justice Ginsburg: In... in a world of limited resources, especially for the U.S. trustee... this is a no-asset bankruptcy.

If the U.S. trustee is going to come into each one of these proceedings, it might be rather impractical.

I was curious about the credit... the creditor class for these student loans.

It's not just States that are creditors when a student tries to get out from under the student's debts.

What... what other entities would be in this situation, not with respect to sovereign immunity, but as someone who has loaned money to a student?

Mr. Brand: Well, certainly any lending institution could... could be involved as a... as a creditor in a student loan.

The... the Federal and... and I guess there are State programs as well, but involve fairly complicated relationships between lending institutions and secondary holders and guarantors at... at various levels.

Justice Ginsburg: Do you know what part of the business the States have, to what extent, compared to other creditors, other lenders?

Mr. Brand: Well, the... I... I can speak for the State of Tennessee.

The State of Tennessee is involved as a guarantor, not as a lender, but merely as a guarantor in conjunction mainly with these... these Federal loan programs.

And the... the State of Tennessee is participating not as a... a business actor, but as a means of... of pursuing the public policy of making it simpler and easier for Tennessee residents to obtain a college education.

So the... the State as a guarantor is... is not in this... in the position at all of an ordinary creditor, really, as far as its... as far as its purpose and... and even as far as its... probably its financial calculations in... in how to deal with that.

Again, it's... it's a matter of pursuing the public policy of making it easier for... for the students, for these debtors to obtain their college education.

Justice Ginsburg: So for... for the primary lender, this procedure would be fine.

The... so the debt wouldn't be dischargeable to the initial creditor, the one who loans--

Mr. Brand: I... I believe... I believe, Your Honor, certainly the... the initial creditor could certainly be involved, would have no sovereign immunity defense.

There would still be the requirement of the undue hardship showing.

Justice Ginsburg: --But if you... if you... Congress was to say, well, too bad, we tried to give them a break, we can't do it, so we're going to make them dischargeable just like any other debt, that would have a very adverse effect on all the other creditors in the picture who are not State actors.

Mr. Brand: It certainly would, Your Honor, but it also could create complications as far as... as far as whether States would choose to participate in... in student loan programs.

Again, it's a policy determination made State by State.

There's no requirement that the States participate in... in such programs.

It... it's part of the balancing of those interests I think that has resulted in this statute and in this statute being written the way it is.

At one point in time not too long ago, student loans were discharged in an ordinary bankruptcy, and then it was... it was cut back to only loans that had been in... in payment more than... more than 5... more than 7 years and more than 5 years, and now, of course, it's cut back all the way to where it's only subject to discharge upon a showing of undue hardship.

So there's... there's definitely a policy of wanting to make student loan repayment more certain and make that a... a different relationship from other debtor/creditor relationships.

If there are no further questions from the Court at this time, I would like to reserve the remainder of our time.

I would ask that the judgment of the Sixth Circuit be reversed.

Argument of Leonard H. Gerson

Chief Justice Rehnquist: Very well, Mr. Brand.

Mr. Gerson, we'll hear from you.

Mr. Gerson: Mr. Chief Justice, and may it please the Court:

The questioning of the petitioner reflected the fact that there is an inherent conflict between the requirements of the operation of the bankruptcy system and the State's sovereign immunity.

This conflict has been recognized in this Court's past opinions.

For example, in Van Huffel v. Harkelrode, a 1931 decision of this Court, it was claimed that the sale of a debtor's property free and clear of... of the State's tax lien was not effective but the State lacked jurisdiction.

This--

Justice Breyer: The State lacked?

Mr. Gerson: --Jurisdiction over the--

Justice Breyer: The State lacked?

Unknown Speaker: The Supreme Court.

Mr. Gerson: --I'm... I'm sorry, Your Honor.

The Court lacked jurisdiction over the State.

And this Court denied that... the State's position.

Subsequent to that in Gardner/New Jersey, which is a case that... that which is noted for waiver, the State also took the position that not... that the property that was a part of the debtor's estate was limited to the debtor's equity and did not include that portion of the property of the debtor that was subject to the State's tax lien.

Again, this Court said, no, all property of the debtor is part of the estate, including that part that's subject to a State's tax lien.

Chief Justice Rehnquist: Of course, in that case the State had come into bankruptcy... the bankruptcy court voluntarily.

Mr. Gerson: That's correct, Your Honor.

But the opinion... that portion of the opinion in Gardner that addresses that issue does not rely upon the fact that the State filed a proof of claim.

Justice O'Connor: If... if we were to analogize bankruptcy proceedings to in rem proceedings in general, nevertheless this dischargeability proceeding is set up under the rules as an adversary one where a notice and a summons is filed on the State.

That's a product of how the rules are constructed.

Now, presumably in time they could be changed, but what about this case?

Mr. Gerson: To allow this case to be determined on the basis that an adversary proceeding had been filed would be elevating form over substance because the jurisdiction of the court with respect to the claim arises from the court's jurisdiction over the property of the estate and claims made against it and the... and the debtor.

They're all part of the res.

So the filing of an adversary proceeding was merely a manner... merely allowing the State to... to be provided with an elevated form of notice rather than being jurisdictional.

In addition, 28 U.S.C. 2075 states that the rules, bankruptcy rules, should not in any way abridge or modify the substantive rights that are granted under the code, and I believe in these circumstances to allow this decision to be based upon the fact that an adversary proceeding had been filed would have the effect of abridging Ms. Hood's rights--

Justice Scalia: Well--

Mr. Gerson: --by denying here an opportunity for hardship.

Justice Scalia: --What happens when you don't show up in an adversary proceeding?

Mr. Gerson: A default judgment is entered.

Justice Scalia: A default judgment.

Mr. Gerson: Yes.

Justice Scalia: So how can you say... I mean, had it not been set up this way, I would assume that the bankruptcy judge would have to make his or her own determination about whether the condition of the statute had been met, but once you have this adversary system set up, I assume the bankruptcy judge is entirely within his or her rights by just saying, hey, the State hasn't shown up, the State loses.

Mr. Gerson: I would... I'd like--

Justice Scalia: Now, that... that doesn't seem to me to be elevating form over substance.

That... that's a big difference.

Mr. Gerson: --Yes, and I... I believe I incorrectly stated what would happen, Your Honor.

It's... even... even in an adversary proceeding, the court would still have to find that Ms. Hood had demonstrated a right to a... to an undue hardship discharge.

Chief Justice Rehnquist: So it wouldn't just go by default then if the State didn't show up?

Mr. Gerson: That's correct, Your Honor.

Justice Scalia: Do you know any other adversary proceedings that work that way?

I mean, I suppose that depends on what the... what the rule means, but when the rule describes it as an adversary proceeding, I... I would take it to mean that if the other side doesn't show up, it loses.

Chief Justice Rehnquist: Well, in a... in a... in an ordinary suit for money judgment, if the defendant fails to show up, he can be defaulted as to liability, but he still has to show the money damages.

He just doesn't get the amount that he says in his complaint.

Mr. Gerson: That's correct, Mr. Chief Justice.

Justice Scalia: Well, is... is the amount at issue here?

Mr. Gerson: The amount is at issue only to the extent that in order to show undue hardship, Ms. Hood has to demonstrate that she can't repay it.

Justice Scalia: Yes, but the... but the... the amount, how much it is, is not... is not in controversy, is it?

Mr. Gerson: No, it's not.

Justice Ginsburg: I thought--

Justice Breyer: --So what is the situation there?

I mean, I don't want you just to drop this.

That is, is an adversary proceeding under the Bankruptcy Code... and there are quite a few.

You've said two opposite things now.

Your first time you said, well, if the other party doesn't show up, the bankruptcy judge can just say, debtor, you win.

Okay?

Without looking at the merits.

And the second time you said, no, that's not really so.

The bankruptcy judge has to satisfy himself that the statutory standard is met.

Now, I guess this isn't the only place where there's a adversary proceeding in the code.

So which is it?

Is it like an... and how do I find out?

If you're uncertain, what do I look up to try to find out the answer to that question?

Mr. Gerson: Well, Justice Breyer, very often adversary proceedings are commenced in bankruptcy court and they're necessary when the kind of action that dispute... in dispute is the equivalent of an action that could have been commenced prior to the establishment of the bankruptcy.

It's just--

Justice Breyer: Yes, I see--

Mr. Gerson: --prior, you know, action now brought into the bankruptcy court.

And then the bankruptcy court could issue a default judgment because--

Justice Breyer: --No, I got that.

Mr. Gerson: --it would be a traditional action.

Justice Breyer: So maybe there are no others.

Are there... are there any adversary proceedings, other than this, one which isn't like what you just described?

Chief Justice Rehnquist: Well, certainly an action by a trustee for... of voidable preference would be quite different, would it not?

Mr. Gerson: With respect to a voidable preference, if... if the defendant did not demonstrate it had any defense, a judgment would be issued in favor of the... the State because there is a presumption for a voidable preference once certain factors are met.

Chief Justice Rehnquist: And there you're getting money from outside the estate too.

You're getting a money judgment against somebody that would increase the assets of the estate.

Mr. Gerson: That's correct, Your Honor, but it is not Ms. Hood's position in this case that a preference action would fall within the traditional in rem jurisdiction of a bankruptcy court and thus the State sovereign immunity would be abrogated.

Chief Justice Rehnquist: So you would... you would say that if the... if there were a suit for a voidable preference against the State, the 11th Amendment rule would prevail?

Mr. Gerson: I... that issue is unclear, Your Honor.

It's certainly not Ms. Hood's position that the Eleventh Amendment would not prevail.

And there's actually a case pending before this Court right now, Massachusetts v. H.J. Wilson, where at issue is the debtor's demand for an income tax refund.

So the opportunity to visit the issue of affirmative money relief against a State and its... and the ramifications of the Eleventh Amendment can be addressed in that case.

It's--

Justice Breyer: We're trying to get... I'm trying to get the answer still to Justice Scalia's question.

Take the question the Chief Justice asked.

It's a preference action.

It's a kind of bankruptcy action.

It's in an adversary proceeding.

Is that right?

Mr. Gerson: --Yes.

Justice Breyer: Okay.

Now, the other side doesn't show up.

Okay, forget this Eleventh Amendment business.

I just want to know the normal thing in bankruptcy.

What's the answer?

If he doesn't show up, is he defaulted like a regular case outside the court, or does the trustee... I mean, does the judge, the bankruptcy judge, look at the matter and make up his own mind independently about whether it was a preference or not?

How does it work in bankruptcy?

Mr. Gerson: It would... it would not be a default judgment, Your Honor.

It would be a judgment on the merits.

Justice Breyer: I have one other technical question.

Suppose we were to say--

Justice Scalia: --Excuse me.

I didn't understand that answer.

It would not be a default judgment.

It would be a judgment on the merits.

Is there a distinction?

Mr. Gerson: It would be a judgment--

Justice Scalia: I thought default judgments are, for all purposes, considered judgments on the merits.

For what purpose is a default judgment not a judgment on the merits?

Mr. Gerson: --Oh, to... to the extent it is... there's greater flexibility of a defendant to come back and ask for reconsideration, I believe, under normal procedures.

Justice Ginsburg: That doesn't make it not a decision on the merits.

It may be subject to reopening, but a default judgment is a judgment.

Mr. Gerson: That's correct.

Justice Ginsburg: I thought that the question we... we were talking about before... that there was a clear and certain answer to the question, that... that if the claim is made that there's undue hardship, even if the State doesn't show up... well, let's take the... because this is written for all creditors and not particularly with States in mind.

If the creditor doesn't show up, the bankruptcy judge still has to find that there's undue hardship in order to make this dischargeable.

Mr. Gerson: That's correct, Justice Ginsburg.

Justice Ginsburg: And where does that come from?

I... that was my understanding about the way it works, but is that a statute, a rule?

Where does... where does that come from?

Mr. Gerson: I think it comes from the natural reading of the statute that such a finding has to be made that there would be an undue hardship for the debtor to have to repay that... that loan.

Justice Ginsburg: You... you could say the same about any default judgment in a case... in a tort action where the tort statute, you know, only imposes liability where the defendant has been negligent.

The defendant doesn't show up.

The court doesn't... doesn't enter into its own independent inquiry as to whether the defendant was negligent.

It enters default judgment.

And the statute, just as clearly, requires negligence there as this statute requires undue hardship here.

Mr. Gerson: The difference... the difference is... Your Honor, is that all of the property of a debtor and claims against that property... they're... they're all under the bankruptcy court's jurisdiction.

So a bankruptcy court has a special obligation to... to protect the interests of all creditors and the estate, and I believe because of that, it would have a heightened responsibility to determine whether there was a basis for an undue hardship discharge because the decision is not solely... is... is affecting everyone.

Justice Kennedy: In the voidable preference case, it's... it's as if we're... the suggestion is is that the bankruptcy court has the authority to order the res brought before it, commanding the State to deliver the res, i.e., the voidable preference.

Mr. Gerson: I... there is a question that--

Justice Kennedy: And... please.

Mr. Gerson: --with... with regard to a voidable preference action whether the funds the debtor would be seeking would be part of the res because it's not in the possession of the estate.

Justice Kennedy: Right.

Mr. Gerson: And certainly that distinction can be made as made in California v.... v. Deep Sea Research, that if the property is in the possession of the... of the State, rather than the debtor, a different result is required with respect to the Eleventh Amendment.

Chief Justice Rehnquist: Well, before the Bankruptcy Act in 1978, bankruptcy courts couldn't try voidable preferences.

That had to be in the district court I believe.

Mr. Gerson: That's correct, Justice Rehnquist.

Justice Breyer: If in fact we assume... let's suppose when we look into this... suppose I was to come to the conclusion that an adversary proceeding in bankruptcy is identical to a case that has nothing to do with bankruptcy in a court.

You say isn't, and maybe that's so and we'll find out.

All right.

Now, if that were so and if that meant under the Court's case law that this particular adversary proceeding were invalid under the Eleventh Amendment, would the bankruptcy judge under section 105 or some other section or would the Rules Committee have the power without going back to Congress to devise a different procedure that would get to exactly the same place, say, a procedure that had the bankruptcy judge adjudicate this under the same standard while notifying the State, like any other creditor, that it could intervene at is choice.

Mr. Gerson: Yes, it could, Your Honor.

And... and the basis for that would be to reconciling the requirements of 28 U.S.C. 2075 and the requirement for the bankruptcy rules because under 105, a court could rule that it would be inappropriate to enforce the requirement of Bankruptcy Rule 7001, which requires an adversary proceeding.

So 105 would give a bankruptcy court that power and I believe it would be an appropriate exercise of that power.

Justice Breyer: And even without 105, could the Rules Committee then devise a different rule?

Mr. Gerson: Certainly, Your Honor.

Justice Ginsburg: Mr. Gerson, you... your position depends heavily on the characterization of bankruptcy proceedings as in rem, and one can understand that about the bankrupt estate, it collects whatever assets there are and distributes them.

But this is a no-asset bankruptcy.

So how does the in rem characterization fit a case where there are no assets?

Mr. Gerson: Because the debtor itself, at least the pre-petition debtor, is also considered part of the res, part of the bankruptcy court's in rem jurisdiction.

That was reflected in Hanover National Bank v. Moyses where the creditor complained that its debt had been discharged, but it had never received... no summons or complaint had ever been filed.

In fact, it complained it had never received notice.

And this Court's response was, no, bankruptcy is a form of in rem jurisdiction, and on that basis the... the claim of that creditor could be discharged even though no adversary... no summons and complaint was filed.

Notice as a motion was sufficient, and it based--

Justice Ginsburg: So what you're saying is the... is the debtor is not a thing, is not a res, but a debtor... this is an adjudication over a status which traditionally is also in rem.

Mr. Gerson: --That's correct, Your Honor.

I know it doesn't entirely fit our traditional notions of what a res is, but it's consistent with how this Court has traditionally understood the in rem jurisdiction of a bankruptcy court and the needs of a bankruptcy court to satisfy its essential functions.

The kinds of contradictions that are being raised in the questioning are reflective of what's happened in the circuit courts of appeal where the Fourth Circuit, the Fifth Circuit, the Ninth Circuit all have recognized and have stated in... in earlier opinions that the Seminole Tribe doctrine applied in bankruptcy but later recognized an in rem exception to allow for the discharge of debts with respect to the Fifth Circuit and the Ninth Circuit and... and the Fourth Circuit, and the Fourth Circuit also recognized that principle with respect to the confirmation of a plan and its binding effect upon a State.

So right now bankruptcy law is in an inconsistent muddle with respect to the applicability of the Eleventh Amendment, and this case allows this Court an opportunity to reconcile that inconsistency as--

Justice Ginsburg: Only a small piece of it, according to what you told us earlier, because you said this doesn't involve the preference question.

Mr. Gerson: --That's... that's correct, Your Honor.

Of course, this Court could rule that given the traditional in rem nature of a bankruptcy and the fact that, particularly under the Bankruptcy Act a preference, as Chief Justice Rehnquist pointed out, was not part of the bankruptcy summary jurisdiction but required a plenary action, that in fact actions requiring any affirmative monetary relief against a State are not part of a debtor's... are not part of a bankruptcy court's in rem jurisdiction, if it chose.

If there are no more questions, thank you.

Rebuttal of Daryl J. Brand

Chief Justice Rehnquist: Thank you, Mr. Gerson.

Mr. Brand, you have 4 minutes remaining.

Mr. Brand: Thank you, Your Honor.

Mr. Chief Justice, and may it please the Court:

The State's position in this case is that a proceeding under the law which requires the State to make a choice between voluntarily entering the proceeding or sitting back and suffering a loss of its... of its rights is every bit as coercive whether it's styled as a motion or an adversary proceeding or... or anything else, is every bit as coercive as a lawsuit similar to the... the situation with the administrative proceedings in the Federal Maritime Commission case.

Justice Scalia: Is that loss of its right automatic?

What is your answer to the question of whether, if you don't show up, a default judgment is entered automatically against you, or does the bankruptcy judge have to make the assessment of whether there's an undue hardship?

Mr. Brand: I am not certain, Your Honor, but I believe that an undue hardship showing would still be necessary.

But in either... in either situation, the State would suffer the consequences of losing its rights subject to an adjudication, not subject to the mere operation of law as with the general discharge at the conclusion of a... of an ordinary bankruptcy proceeding.

As... as far as the preference actions go, this case... I'm sorry... this Court decided in Hoffman v. Connecticut which involved a preference action and even more than that, a turnover action where there actually was property of the estate that the... that the bankrupt trustee was... was entitled to recover, that in either of those types of situations, the Eleventh Amendment applied.

Now, of course, that case turned on whether Congress had... had made a clear statement in the statute, but in any event, the Court, having found that the... that the Congress did not make a clear statement of intent to override sovereign immunity, applied the Eleventh Amendment to that preference action, that turnover action in that case.

Now, in this case we have no property.

The... the debtor is not seeking to... to get property.

The... the creditor is not seeking to make a claim out of the property of the estate.

So we would submit that... that the Court can decide this case, which involves a simple adversary proceeding on its face, the issuance of compulsory process without even reaching the question of whether a similar effect would... would occur in... in a preference action or in any other type of bankruptcy action.

So I'd like to emphasize to the Court that this is an unusual statute, and the question in this case is, does the Eleventh Amendment apply in the bankruptcy context?

But the precise circumstances of this case can well limit a court's holding to the question of whether sovereign immunity protects the State in an adversary proceeding on this particular type of statute for a particular exception from discharge.

If there are no further questions--

Justice Stevens: I do have.

Would you tell me again, what... what's the cite to the case about the turnover that you just cited?

Mr. Brand: --It's--

Justice Stevens: What is the name of the case?

Mr. Brand: --It's Hoffman v. Connecticut.

Justice Stevens: Hoffman, thank you.

Mr. Brand: It's a 1989 case--

Justice Stevens: Right.

Mr. Brand: --in which... in which the... the plurality of the Court found that Congress had not made a clear statement of intent to override sovereign immunity, but in which two Justices found that in any event Congress had no constitutional authority to override Eleventh Amendment immunity in such a setting.

If there are no further questions, again we--

Justice Ginsburg: Yes, I had one.

And it was in... your brief said, well, it's not that the bankruptcy law doesn't find the States so that, for example, if the State as creditor would sue the student after she's been discharged in bankruptcy, she could then as a defense say, I'm not liable on this debt.

It's been discharged.

I got the undue hardship finding from the bankruptcy court.

That... you did say that in your brief that that would be... that... that she could have this as a defense.

Mr. Brand: --Well, we... we did not mean that she would have obtained the undue hardship finding from the... the bankruptcy court, but that she could raise the issue of undue hardship in whatever State proceeding was initiated by the State.

Justice Ginsburg: Why would the State ever initiate such a proceeding when it has much easier... it can garnish wages.

It can intercept tax refunds.

Mr. Brand: Your Honor, may I answer the question?

Chief Justice Rehnquist: Yes, briefly.

Mr. Brand: The answer is, as Your Honor suggests, the primary... the primary means under the student loan program would be through wage garnishments and through tax intercepts, but the Federal regulations and State law would afford the debtor opportunity for administrative proceedings to raise the undue hardship issue and prove that she should be absolved from the student loan debt.

So there are State remedies available in the context not of a State court--

Chief Justice Rehnquist: Thank... thank you, Mr. Brand.

Mr. Brand: --Thank you, Your Honor.

Chief Justice Rehnquist: The case is submitted.

Attribution:

The Oyez Project

Featured:

Tennessee v. Lane - Oral Argument

Fri, 09 Jan 2009 14:49:07 +0000

Case:

Tennessee v. Lane

Media File:

02-1667_20040113-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Michael E. Moore

Chief Justice Rehnquist: We'll hear argument now in No. 02-1667, Tennessee v. George Lane.

Mr. Moore.

Mr. Moore: Thank you, Mr. Chief Justice, and may it please the Court:

Whether the Court chooses to view Title II of the Americans with Disabilities Act in the entirety of its indiscriminate application through every facet of every state program, activity, and service, or in the alternative, as the private respondents urge, in the narrow courthouse access context, presented by the particular allegations of the complaint they have filed in this case, the Court should conclude that Title II exceeds Congress' enforcement authority under section 5 of the Fourteenth Amendment for essentially two reasons.

First, because there was no evidence before Congress that the states were involved in a widespread pattern of violations of the Fourteenth Amendment rights of disabled persons when the ADA was enacted in 1990.

And second, because Title II shares all of the incongruent and disproportionate features that proved fatal to Title I of the same statute in the Garrett case and then some.

Title II's lack of congruence and proportionality to any identified constitutional injury inflicted upon disabled persons by the states is apparent, we say, on the face of the statute.

Congress made no effort to tailor its provisions to those contexts which might conceivably pose a threat to the exercise of fundamental constitutional rights by individuals with disabilities.

Instead, Title II applies indiscriminately to every service, program, or activity of the states.

Justice Kennedy: Let's assume that the... that the state... and it's just an assumption... would concede that sovereign immunity could be abrogated insofar as access to courthouses for handicapped people, so that Congress could have drafted a congruent and proportional statute.

The fact that this injury comes within a statute which has a much larger coverage is grounds for striking the statute down, even though this case involves what we will assume to be a... an injury that could be remedied under the Fourteenth Amendment with money damages?

Mr. Moore: Your Honor's question focuses on a debate that we really haven't engaged in.

It's... it's one between the respondents and the United States, because in our view, whether the Court views the statute in its... in overall operation, or as focused narrowly on the courthouse access context, either analysis leads to the same conclusion.

Having said that, I would say that the prohibition of Title II is a single, unitary, very elegant one-sentence prohibition in section 12132 of Title 42.

It doesn't purport to subdivide the statute... the statute's prohibitions into particular subject matter areas.

And as the United States points out in its brief, this Court's prior congruence and proportionality cases in... in the abrogation context suggest that the Court looks usually at the overall operation of the statute.

If the Court chooses that perspective on this problem, we think yes indeed, even if the statute, assuming the statute, a narrowly-tailored statute could have been drafted that would validly abrogate sovereign immunity in the courthouse access context, Title II's flaw is that it is not so targeted.

In fact, of the myriad activities it covers, Your Honor, a very small percentage conceivably implicate the exercise of any constitutional right.

Justice O'Connor: Mr. Moore, does Tennessee provide any cause of action for the alleged violations here, the lack of access to the courthouse?

Mr. Moore: No private right of action under our State Public Buildings Act.

Our State Public Buildings Act, Your Honor, was enacted in 1970.

It applied to all buildings constructed on or after that date.

Justice O'Connor: So you're satisfied that under Tennessee law, there would be no monetary relief available?

Mr. Moore: I think that is... I think that is right.

Justice O'Connor: And would there be any enforcement action at all available to compel under Tennessee law the courthouses to be accessible?

Mr. Moore: No, Your Honor, because under Tennessee law, the... the injunction to build fully accessible buildings applies to buildings constructed after the enactment of the Public Buildings Act in 1970.

There is no provision in the Public Buildings Act requiring retrofitting.

But, of course, in this case, Tennessee does not dispute its obligation to comply with Title II, and we do not dispute that our state officials can be called to account for a failure to comply with the provisions of Title II in an Ex parte Young action.

Justice O'Connor: Well, do you take the position that Title II, even if this Court were to find monetary damages are not available, is there a way to enforce Title II by the Federal Government against the State of Tennessee?

Mr. Moore: Yes, Your Honor, there is, in an enforcement action by the United States, injunctive relief and monetary damages would be available against the state.

In addition--

Justice O'Connor: Under what power?

I guess... I guess you're arguing that there's no section 5 authority--

Mr. Moore: --Yes, Your Honor.

Justice O'Connor: --for enactment of this provision.

And that would leave what, the Commerce Clause?

Mr. Moore: Yes, Your Honor.

Justice O'Connor: And you think it would survive the Commerce Clause challenge, do you, as applied to states?

Mr. Moore: Your... Your Honor, of course, this... this case doesn't present that question.

Justice O'Connor: Right.

Mr. Moore: But--

Justice O'Connor: But I'm asking.

Mr. Moore: --But we have not challenged and do not question Congress'--

Justice O'Connor: Other states have though, have they not?

Mr. Moore: --I... it's my understanding that that claim has been raised in certain lower Federal courts, yes.

Chief Justice Rehnquist: How about an action under Ex parte Young--

Mr. Moore: Absolutely, Your Honor.

Chief Justice Rehnquist: --against a state official, not for money damages, but for compliance?

Mr. Moore: Absolutely, Your Honor.

Justice Souter: Well, I can understand that if the state official was standing at the door saying, no, you cannot bring a wheelchair in here.

But if the building itself simply does not allow for... for... for ready access, how would an Ex parte Young action be a source of remedy?

Mr. Moore: Well, of course, Your Honor, Title II doesn't really apply to buildings.

It applies to services, programs, and activities, and so long as they--

Justice Souter: Well, if the... if the activity... the... the conduct of... of the business of courts is taking place in a courthouse, I think that gets us to focus on the building, doesn't it?

Mr. Moore: --But so long as the... so long as the court in question offers the service in... in a... in another venue, for example, as occurred in this case, Mr.... at every step of Mr. Lane's interaction with the Polk County criminal court, an accommodation was offered to him, albeit it was rejected.

Justice Souter: So they're... they're saying, look, you... you could have an Ex parte order... Young order... saying hold court on the first floor.

That's... that's what you're getting at?

Okay.

Mr. Moore: Yes, Your Honor.

I mean, the... I... I should think a... a court could fashion whatever remedy is... is deemed appropriate to ensure that a... a person in Mr. Lane's circumstance enjoys the full panoply of his... of his constitutional rights in... in--

Justice Souter: But I... I take it your position would be that under Ex parte Young, a court could not say to a state official, build an elevator?

Mr. Moore: --Well, I think courts have wide discretion to fashion injunctive relief in Ex parte Young actions, and if, in a particular circumstance, that were the only reasonable way of delivering the service, I... I think that would be inappropriate.

Justice Souter: So you would as... as a last ditch, you would concede that?

Mr. Moore: Yes.

I think... I think in an Ex parte Young action, courts have enormous discretion to fashion equitable relief that is appropriate to... to whatever the particular facts and circumstances are presented--

Justice Ginsburg: But that would still be Commerce Clause-based, right?

Because you're excluding the Fourteenth Amendment altogether.

Mr. Moore: --That would be true, Your Honor, yes.

Justice Ginsburg: And there is something strange about that, given that it was Congress' purpose to enable people to exercise the rights... the full rights of citizenship.

I mean, it's a kind of a dignity right that Congress was recognizing, and it doesn't fit as comfortably under the Commerce Clause, does it, as it would under the Fourteenth Amendment?

Mr. Moore: I think it fits quite comfortably under... under the Commerce Clause, Your Honor.

But, of course, under this Court's case law, in order to invoke its Section 5 power, Congress had to have evidence before it or some reason to believe that the states were engaged in a widespread pattern of violating the constitutional rights of disabled or... or... of... of whatever group is involved, and here there was no such evidence, certainly not in the courthouse access context.

Justice Breyer: Well, what about the... that's what I want to get to.

I... I mean, to put the whole question to you, I'm assuming we're talking here to use the statute about judicial or courthouse-related services, programs, or activities.

So I was seeing this as a kind of as-applied challenge, and if it's constitutional in this area, maybe we leave the other areas for a later time.

Now, on that assumption, as you well know and I do, the majority criticized my appendix in Garrett--

Unknown Speaker: [Laughter]

Mr. Moore: Yes, Your Honor.

Justice Breyer: --for certain inadequacies.

And among those inadequacies which it highlighted was, one, the inadequacy that it talked about public employment instead of, says the majority, public accommodations and public services.

Here we're talking about public accommodations and public services.

Second, the majority criticized it... I'm, you know, aware of these criticisms, I read them carefully.

Unknown Speaker: [Laughter]

Justice Breyer: The... the... the... criticized it because the Senate reports hadn't said anything.

Well, here the committee report talks... says discrimination still persists in such critical areas as public accommodations and public services.

And third, the... the concurring opinion says there is no record of litigation on this point and the SG has filed a whole brief with loads of... and fourth, the majority made a major point of there being a relaxed, rational basis standard of judicial review, but here we have access to a courthouse, something that would seem to call for more strict scrutiny than that.

All right.

Those are the four things that I could see as distinguishing this case, and I think it's reasonable to ask you, why don't they?

Mr. Moore: They don't, Your Honor.

Let me take each one in turn.

First of all, in the appendix to the Solicitor General's brief, indeed, if the Court will look at all of the hundreds of pages of briefs filed in this case by respondents and their amici, the Court will not find a single case from a single jurisdiction that has held that anytime, anywhere in the United States, a person's fundamental constitutional rights of access to the courts has been denied as the result of architectural barriers at courthouses.

And if there's one context in which one would expect to find case law, it is in the courthouse access context, because after all, the business that takes place there is litigation.

We think that is a particularly telling point.

Similarly, in... we find in the Government's brief, who has... the Government has called from Your Honor's appendix the pertinent entries, and we find eight of them that have sufficient detail that would permit one to actually ask the question, was a constitutional violation involved?

And we say that under the... even the most creative interpretation of any of them, they don't make out a constitutional violation.

All of the other references to courthouses in appendix C to Your Honor's opinion, we've pulled every single of them, and they simply... they simply label courthouse facilities as inaccessible.

But, of course, under the ADA, inaccessible is a term of art.

It doesn't mean there's literally a wall around the building and no one can get in.

It means that they are inaccessible in the sense that the... the amenities required by the ADA are not present, so that there are not... there is no evidence before this Court, and there was no evidence before Congress, that anyone's constitutional rights, rights of access to the courts, were being violated as the result of the existence of these architectural barriers.

And for those reasons, we don't think the... the so-called task force report, which is summarized in the appendix to Your Honor's dissent in Garrett, helps the respondents.

There is no mention in the text of the act itself, of course, of courthouse access, and if one looks at the Senate and House reports on the legislation, one will discover that there is not a single mention of the subject anywhere and no other indication that Congress thought courthouse access was a matter of particular concern.

Justice Scalia: Mr. Moore, I'm sort of concerned about this.

Our prior cases dealing with this issue of... of the scope of Congress'... whether Congress' power under the Fourteenth Amendment has been properly exercised, none of our prior cases parse it out issue by issue.

Boerne, for example, doesn't... doesn't just limit it to, you know, to... to whether, given that there was no... no discrimination in this case, Congress could move.

You're... what you're... the State of Tennessee is entirely happy to have us change course and begin to rule upon congressional legislation of this sort, case by case--

Mr. Moore: No, Your Honor.

Justice Scalia: --whether there was enough evidence on courthouses, whether there was enough evidences... enough evidence on each of the other innumerable state functions that... that were covered by this bill.

But, I mean, that's the argument you're making.

You... you just want us to... to say there's not enough evidence about courthouses, and therefore, in this case, they can't do it.

And we'll hear... we'll hear another case further down the line about, you know, any of the other innumerable state functions that are impinged upon by this law.

Mr. Moore: I would agree with Your Honor that... that the Court's prior abrogation cases, each one of them looks at the overall operation of the statutory scheme and does not look at its application in a context-by-contact... context basis.

And we would agree that if the Court chooses to continue that practice and... and for many of the reasons discussed in the United States brief, we think that is probably the better view of it, this statute clearly falls, because under no circumstances can... can one say that it... it... it is congruent and proportional to a valid, remedial objective.

Justice Breyer: How... how do you do that?

Because if I think of the antitrust laws, for example, or other congressional statutes in olden days when the Court, you know, was worried about the scope of the Commerce Clause, what would happen is they would say, of course the antitrust law is valid, the statute's valid, but it's not valid to apply it to baseball, because baseball's not an interstate commerce, or it's not valid to apply it to insurance.

Well, why wouldn't the Court take the same approach here, that this statute may be valid as applied to X, Y, and Z, where they did have enough evidence, but not A, B, and C, where they didn't?

Mr. Moore: I... because I think the abrogation inquiry is fundamentally different.

The abrogation inquiry focuses on whether Congress invoked its power under Section 5 in a fashion that is congruent and proportional with a valid, remedial objective, that being a... a... an identified pattern of unconstitutional behavior.

Chief Justice Rehnquist: In City of--

Mr. Moore: And in order to... excuse me, Mr. Chief Justice.

Chief Justice Rehnquist: --In City of Boerne, we certainly did not go in and analyze whether the church has a claim under the Constitution or not.

Mr. Moore: That's true.

That's true, and... and the same can be said of the Kimel case.

The Court didn't focus on the peculiar allegations of the complaint in that case.

Justice Scalia: Justice Breyer's question, how can you do that, reminds me of, you know, there's a story about the Baptist minister who was asked whether he believed in total immersion baptism, and he said, believe in it, I've seen it done.

Unknown Speaker: [Laughter]

Justice Scalia: And that... that is surely the situation here.

We've done it before in... in each of the other cases involving this area.

Mr. Moore: Yes, Your Honor.

The statute lacks congruence and proportionality also, not just because of its sheer breadth, which Justice Scalia's question highlights, but also because in the myriad contexts to which it applies, it imposes obligations on the state that go far beyond what the Constitution itself commands.

It really does so in two ways generally.

First, most of the rules under Title II promulgated by the Justice Department to enforce its provisions require states to modify otherwise disability-neutral policies and practices in order to eliminate adverse, disparate effects those policies may have on the interests of disabled persons, whereas, as this Court noted in the Garrett case itself, under the Fourteenth Amendment, disparate... disparate effects of that... those sorts, without more, do not make out any sort of constitutional violation.

Second... yes, Your Honor?

Justice Stevens: I was going to ask you to get out of the courthouse area of the case for a minute.

The Government's brief contains a statement that in 1975, approximately one million disabled students were excluded entirely from the public school system.

If that were true, and if... because of their disability, if that were true, would that constitute a constitutional violation?

Mr. Moore: I don't think we have enough facts to draw any conclusion.

Justice Stevens: And then my next question is, there's nothing in the record... suppose you had several Congressmen who said, I'm going to vote for this statute because I'm convinced that this fact is true, but there's nothing in the hearings, but... but it definitely motivated the voting of people who voted for this statute, could... would it be valid in that fact, that situation?

Or do we have to have evidence in a... in a congressional hearing in order to justify a congressional decision?

Mr. Moore: I think there must be evidence of a pattern of constitutional violations, and merely saying that a particular class of persons is excluded from public schools, for example--

Justice Stevens: Is it... is it--

Mr. Moore: --without more information doesn't permit a conclusion necessarily that a constitutional violation is going on.

Justice Stevens: --Is it true then that in a case like this, we must examine legislative history in order to determine the validity of the statute?

Mr. Moore: Unless... I mean, there are certain contexts where... where the... the history of discrimination is so well known and has been documented in this Court's own opinions, that perhaps that's unnecessary.

Justice Stevens: Well, it hasn't been... I'm assuming it hasn't, but it's just clear that the Congressmen who voted for the statute thought it was true.

They got letters from their constituents and acted on that sort of information, and that... but that can never be sufficient under your understanding of our cases?

It must be something in the congressional record?

Mr. Moore: I think there must be something in the... in the record that establishes a state... state participation in a widespread pattern of unconstitutional behavior, yes, Your Honor.

Justice Scalia: Mr. Moore, you... you don't concede, I assume, that the Constitution is violated by not... not providing educational... public educational facilities that will be accessible to all handicapped persons?

You don't concede that that's a constitutional violation, do you?

Mr. Moore: No, I do not.

No, I do not.

Justice Scalia: I didn't think it was.

Mr. Moore: The... the... and in fact--

Justice Scalia: I mean, you... you need a rational basis.

Mr. Moore: --That's right.

Justice Scalia: And... and if... if the... the additional expense for constructing the buildings in... in a manner that would render them accessible to all handicapped persons is excessive, it's not a constitutional violation.

Now, it may be a very bad idea, but we've never held that that's a constitutional violation.

Mr. Moore: I... I think that's right, Your Honor.

The only--

Justice Scalia: So saying that so many handicapped persons couldn't get into public schools would prove nothing at all, would it?

Mr. Moore: --I think you're absolutely right, Your Honor.

The only context in which this Court has applied heightened scrutiny in... in the education context is where there was a... a... a punitive class-based exclusion, and... and there only in the K through 12 context, and so merely reciting that a certain number of students were being excluded without more information, Your Honor, I think would not make out a constitutional violation.

Justice Breyer: Just out of curiosity, in your view, is the requirement that Congress have a kind of legislative... I've called it an administrative or court record... to document the evidence of unconstitutionality of practices applicable only in Section 5 of the... of the Fourteenth Amendment, or is something... is it a constitutional requirement that applies to all the provisions of Article I, including the Commerce Clause and other provisions?

Mr. Moore: Quite frankly, I focused only on this Court's cases construing Section 5 requirements in this context.

But I... I think... I think Congress... when Congress invokes one of its powers in a way that intrudes upon the sovereignty of the states, it must document that it has an adequate basis in fact for concluding that that power exists.

Justice Breyer: It's like... it's like a mean question, because if you... if you answered the question that they had to be different, I'd said why, and if you answered the question they'd have to be the same, each of us can cast our minds over dozens of pieces of important legislation where, let's say, the underpinning... let's take the Copyright Clause or let's take any one of a dozen where there isn't really much of a legislative record.

I mean, that's... do you want to say anything about that?

I mean, that's the problem I see there.

Mr. Moore: Well, of course, here, this case deals with a specific context, the... the... the invocation of Congress' power to... to abrogate the state's sovereign immunity, and it seems entirely reasonable for the Court to construe section 5 as requiring that before the Congress alters the Federal-state balance in such a grave way, that it document very carefully its basis for doing so.

Justice Scalia: Of course, the... the commerce power exists whether or not other... other facts are... are established.

It is a power that Congress always and everywhere possesses.

Congress does not always and everywhere possess the power to subject the states to... to... to lawsuits.

Justice Stevens: Yes, but--

Justice Scalia: --That power exists only... only when, as... as we... we found was not well-enough established in Boerne, only when there has been a constitutional violation by the states, so why isn't that an adequate reason for the difference?

Justice Stevens: But is that quite correct?

Isn't it true that under section 5 they prohibited the poll tax and literacy tests, even though they'd been held permissible?

They were not unconstitutional, they were prophylactic measures.

Mr. Moore: But that was, Your Honor, only after a... a well-documented history of discrimination and discriminatory application of those--

Justice Stevens: But you would agree that it's not essential that there be a constitutional violation?

Mr. Moore: --I... I think there must be evidence of a pattern of a unconstitutional behavior.

Justice Scalia: The answer is no.

The answer is no.

Unknown Speaker: [Laughter]

Justice Scalia: You don't agree with that.

There has to be a constitutional violation.

Mr. Moore: There has to be--

Justice Scalia: The remedy may go beyond the constitutional violation, but there has to be a constitutional violation, does there not?

Mr. Moore: --I agree with you, Your Honor, 100 percent, and I would like, Mr. Chief Justice, to reserve the rest of my time for rebuttal.

Argument of William J. Brown

Chief Justice Rehnquist: Very well, Mr. Moore.

Mr. Brown, we'll hear from you.

Mr. Brown: Mr. Chief Justice, and may it please the Court:

Unlike Garrett and Kimel, and entirely consistent with this Court's opinion in Hibbs, Title II as applied to the case that is before the Court today presents a constitutional application of the powers of Congress under section 5 of the Fourteenth Amendment.

Chief Justice Rehnquist: When you say, Mr. Brown, as applied to the case that's before the Court, you're suggesting that it can be kind of sliced up and just, say, address courthouses?

Mr. Brown: Your Honor, please, I think the history that this Court has used in the past is to focus on the case and the circumstance and the issue that's before the Court.

The case that's before the Court involves the fundamental right of access to the court.

Chief Justice Rehnquist: Well, but in... in our other cases dealing with Congress' section 5 power, I don't think we've taken that position.

We have said, particularly in the City of Boerne, the Government response must be congruent and proportional, which suggests that there may be constitutional violations, but they're simply not sufficient to justify what Congress did.

That's the meaning of... I understood... of the term, congruence proportionality.

Now, if you... if you simply focus down narrowly enough and say, was there a constitutional violation in denying the church the zoning, the... that really eliminates the idea of proportionality entirely.

Mr. Brown: Respectfully, Chief Justice, the way that I took Boerne was that this Court made a direct statement to Congress that they had overstepped their bounds in interpreting the First Amendment and the Fourteenth Amendment and its applications.

The Court looked directly at Congress and said not that in these particular circumstances, but on this particular constitutional issue, you went too far.

Now, what we're talking about in this case today is not about whether or not Congress dealt with a fundamental right.

That's unquestionable.

Today what we're talking about here is what I would suggest to the Court is the quintessential element of the Fourteenth Amendment, and that is the right of each of us as individuals to due process of law, to life, liberty, and property.

Justice Scalia: The legislation doesn't deal with that constitutional right.

It doesn't... doesn't mention, you know, due process and... and... and courthouses specifically.

It... it embraces innumerable things.

And what you're saying is, because one of the innumerable things that it embraces happens to involve a constitutional right, the legislation is a valid exercise of... of section 5 power as to that particular constitutional right.

And I... that doesn't strike me as... as accurate.

If Congress wants to enact such a sweeping statute, a statute that... that, in effect, as we said in Boerne... what was going on in Boerne was that Congress was rewriting the First Amendment, and here Congress is rewriting the Equal Protection Clause essentially, saying that... that... that there must be constitutionally or by virtue of this... of this supposedly constitutionally remedially statute, there must be equal treatment of... of handicapped people.

And it... it seems to me it's exactly parallel to what was going on in... in Boerne, rewriting the First Amendment versus rewriting the Equal Protection Clause, and we looked at the whole sweep of... of Congress' action, not just at the particular First Amendment claim.

Mr. Brown: Justice Scalia, respectfully, Congress does not have a real good record of writing memorandum opinions.

What it said specifically was, this law deals with the Fourteenth Amendment, and what the statute says is that citizens, qualified citizens for programs and services and activities of the state, have a right to participate in those activities without having the onerous issue of their disability come into play.

Justice Ginsburg: Mr. Brown, are you saying that these... what fits within this statute would independently violate the Constitution, and all that the statute does is provide, in this case, a damage remedy?

Mr. Brown: I think it does.

Justice Ginsburg: So that in... in all the cases that would fit under this legislation, someone could come in, say, and seek injunctive relief--

Mr. Brown: Well, absolutely.

Justice Ginsburg: --for a violation of a constitutional right?

Mr. Brown: Well, the beauty of Title II is that we don't have to chase all those rapids.

I mean, Title II gave me the benefit of a trial lawyer in Tennessee whose sole purpose and interest was, one, to make sure that our courthouses in Tennessee were accessible, and two, that individuals that were harmed, that suffered pain, embarrassment, humiliation, as they individually, on their own, by virtue of their right under the Fourteenth Amendment to represent themselves had to crawl up the stairs of one of our courthouses--

Justice Ginsburg: But let's take, say, it's a... it's a seat in... in a public stadium, which is also covered, or a theater, and it's inaccessible to certain people with disabilities, would that be a violation of the Constitution, for which this statute provides a remedy?

Mr. Brown: --It may not provide or deal with a constitutional violation, but it certainly deals with a prophylaxis issue.

And... and let me give you this example.

Suppose there was a political rally in that stadium, suppose the President came to address a large audience of individuals in that particular stadium, and those individuals who have mobility disabilities decided that they wanted to go and hold up a sign that says, Mr. President, make our buildings accessible.

Is that not really a fundamental First Amendment right, and the fact that they can't get there implicates their right to petition their government?

The concept that we as individuals have a right under the Fourteenth Amendment to be citizens in all of its aspects, not just simply in one context that may or might... may not ever come, surely today in the year 2004, Congress has the power to ensure that we as individuals have all the rights of citizenship without reference to any individual context.

Justice Souter: Then... then would you--

Mr. Brown: That doesn't make any sense.

Justice Souter: --Would you explain to me the difference between your position and the Government's position then?

Because you've... you've gone beyond... at least, as I understand your answer, you've gone beyond a... a kind of a strict, as-applied argument, and... and I'm not sure where you and the... and the Government part company at this point, if you do.

Mr. Brown: Your Honor, I represent six people in Tennessee who are trying to get access to the courts of our state.

If I can win their cause, then I will be satisfied with the results that I initiated in 1998 when I filed this lawsuit.

If I have a responsibility to go broader and to defend all the other aspects of Title II, but lose my clients' case, then I have not done them a service, nor have I done a service to other individuals who are seeking access.

Justice Souter: Is... is your argument still that what you are complaining of would independently be a constitutional violation, so that the virtue of this act, in effect, is to provide a remedy, and that's all we need to consider?

Mr. Brown: Absolutely, Your Honor.

Justice Souter: Okay.

Justice Breyer: You... we don't have to just say this one individual, do we?

I mean, there is a pretty good record here.

I... well, I better not characterize it, because I come from a certain point of view on this, but there's a pretty good record, and I felt the Chief Justice's question was getting to this.

I mean, are you arguing that if this... this statute could constitutionally be written giving you constitutionally this lawsuit as a remedy, in respect to your client that's good enough, that is a harder argument possibly than to say, well, if it's valid in respect to the general problem of providing judicial services, which is a big category, one whole branch of the state.

I mean, that category might be valid.

Mr. Brown: Let me say, Your Honor, respectfully, I think we do have to establish a category.

I don't think that Title II nor this Court would ever suggest that literally every person who comes in with a Title II claim has to state a constitutional violation, because then it takes away from the prophylaxis benefits of Title II.

What is says, what Title II fundamentally says, and literally adopts what I think is the fundamental purpose of the Fourteenth Amendment, is back to what I said before.

We as individuals have a right to be there where our government works and where it operates.

And George Lane is a classic example of that.

George Lane confronted as an individual with a misdemeanor charge, a driving on a revoked license case, the proposition that the only way he could get to the courtroom where his liberty was at stake was by crawling.

The state suggests there were alternatives.

Where were the people offering to carry him up the stairs the first time?

Where were they?

Justice Scalia: There has to be an affirmative offer?

He could not have asked for assistance getting up the stairs?

Mr. Brown: Your Honor--

Justice Scalia: It's a constitutional violation not to offer it as opposed to refuse it when he asks for it?

Mr. Brown: --Your Honor, please.

Justice Scalia: I mean, he appears downstairs and... and he sees one of the constables there and says, you know, I can't make it upstairs in my wheelchair, could I have assistance get... getting upstairs?

Now, is that a... is that a constitutional violation not to have an elevator for him, but to say, you know, we'll... we'll see that you are carried up by... by constables?

Is that a constitutional violation?

Mr. Brown: I think that it is, Your Honor, because the presumption is that somebody would be there to carry him.

Justice Scalia: I... I don't understand that.

It is because the presumption is that somebody--

Mr. Brown: There is no constitutional right... if he doesn't have a constitutional right generally to get there, what gives him the constitutional right to have somebody carry him up there?

You're asking what George Lane to rely on--

Justice Scalia: --He has a constitutional right for the state to provide him the means of being present at his trial.

Now, does the means have to be an elevator or could it be someone assisting up the stairs?

Now, there... it... it may be less dignified in the latter... in the latter situation, and that's a proper subject for statutory activity, but is it a constitutional violation, so long as the state assures that he can... he can be present at his trial?

Mr. Brown: --His safety, Your Honor, is a critical issue.

Ralph Ramsey, who is one of my clients, weighs 350 pounds.

To say that he has a constitutional expectation that one or two or five or the whole battalion of deputy sheriffs in Cocke County would and could carry him up those stairs, I mean, what's he going to do, file a Federal lawsuit to make sure that somebody will carry him up there?

I don't think he has that right.

What he has is the prophylaxis benefit of a law that says we're going to create buildings where people can gain access to their rights as citizens.

That is as important to say as it is to say that we all have a right, no matter what our circumstances, our background, our class, to get to the civic center of life, public life in our communities, and that should be done, Your Honor, and I don't know that you all have ever said that, but that should be done with dignity and respect that the Fourteenth Amendment speaks about all of us as individuals.

And today I think that is what is so important and at stake.

This case is not just about individuals with disabilities.

Justice Breyer: Probably this is universally accepted what you're saying, and what I wonder is, is why, if you could explain it, what your opponent is saying is that to give people a remedy for the violation of that principle, it is adequate to have the Federal Government bring a lawsuit or they bring an Ex parte Young, et cetera, action.

Now, why isn't that sufficient?

Mr. Brown: Your Honor, please, the Federal Government was not there the day George Lane confronted those stairs.

George Lane could not call upon the Federal Government that day to ensure that he didn't go to jail because he refused to crawl those stairs.

Justice Scalia: Neither was a Federal judge who could hear his lawsuit.

Mr. Brown: And that's why the--

Justice Scalia: I mean, the Federal Government brings a lawsuit or he brings a lawsuit.

Mr. Brown: --That's--

Justice Scalia: Neither one of them is there instanter.

Mr. Brown: --Respectfully, Your Honor, that is why Title II is there, to make the State of Tennessee anticipate that problem, solve that problem, so our citizens don't have to confront those obstacles and face pain, suffering, and public humiliation as a condition of citizenship.

Respectfully, Your Honor, please, this deals again, as I have said, not just with the rights of disability individuals, but the rights of all of us to go, to petition our government, to have a right to represent ourselves in a court of law.

Justice Ginsburg: There is a difference, though, if you talk about non-discrimination, say, with respect to race or religion, you... you use the word dignity to say the state has to respect the dignity of every human being, but to respect the dignity of certain people with disability, the state has to do more than not harm them, not discriminate against them.

It has to have a kind of affirmative action that's permanent, isn't that so?

Mr. Brown: Respectfully, Justice Ginsburg, an elevator to an individual with disabilities is no different than stairs are to me as a person without disabilities.

It's the way I get there.

The fact that I happen to have an opportunity to walk upstairs doesn't make those accommodations any different to me than it is with an individual with disabilities.

The point of the matter is, suppose as in Meigs County, where you've got a stairway getting to the second floor that barely one person can climb up, it's creaky, I mean, are we going to say if they shut down those stairs, we can haul people up with a pulley and a rope?

Justice Ginsburg: That's not the point that I'm making.

Mr. Brown: I'm sorry, Your Honor.

Justice Ginsburg: The point is that sometimes to respect the equal dignity of a person, we have to treat them specially, and I think that that's what the elevator is.

It is special for a class.

It isn't the same as everybody else has.

Mr. Brown: Your Honor, I think the word special accommodation is something that is a problem.

I... I hope the Court will understand that--

Chief Justice Rehnquist: Thank you, Mr. Brown.

Mr. Brown: --I'm sorry, Your Honor.

Argument of Paul D. Clement

Chief Justice Rehnquist: Mr. Clement, we'll hear from you.

Mr. Clement: Thank you, Mr. Chief Justice, and may it please the Court:

Unlike Title I of the ADA, which regulates states as employers and treats public and private employers alike, Title II of the ADA focuses on states and state governments as governments in their distinct role as providers of public services.

As a result, Congress focused specifically on the conduct of state and local officials rather than simply extrapolating from the experience of private employers.

Equally important, Congress in the statutory findings and legislative reports, the same reports this Court found lacking in the Garrett case because they did not include specific findings of public sector discrimination in employment, those same findings and reports found persistent discrimination in such critical areas as access to public services and voting.

Moreover, as this Court--

Justice Scalia: That... that... that's persuasive or not, depending on what was meant by the term discrimination.

If it simply meant that... that the handicapped were not accommodated by special provisions, such as elevators, that might be quite true, but it would also not be a constitutional violation, would it?

Mr. Clement: --Well, Justice Scalia, I think that brings us to the second important distinction between Title I and Title II, which is because--

Justice Scalia: Well, let... let's stay on your first one.

I'm... I'm... I'm waiting to hear what... what findings Congress made that has anything to do with constitutional violations by the states--

Mr. Clement: --Well, and... and--

Justice Scalia: --which is the premise for this legislation.

Mr. Clement: --And again, Justice Scalia, I think the problem in Garrett, when this Court saw findings of discrimination in an area like employment discrimination, that's governed by rational basis review, then there's very little reason to think that the small "d", if you will, discrimination Congress found resulted in unconstitutional discrimination.

But because Title II focuses on government services, many of which implicate fundamental rights, there's every reason to believe that when government... when... when the Congress found... take voting for example... discrimination in voting, that they were actually finding unconstitutional discrimination in voting, because voting and access to polling places triggers fundamental rights and heightened scrutiny.

And as this Court recognized in--

Chief Justice Rehnquist: Well--

Mr. Clement: --in the Hibbs case, when--

Justice Scalia: --These two sections... these... these two things were debated and... and passed simultaneously, or at very different times?

Mr. Clement: --Title I and Title II?

Justice Scalia: Right.

Mr. Clement: They... they passed at the same time.

Justice Scalia: And... and they're... they're using discrimination to use one thing in... in one half and another thing in the other half?

That's... that's what you want to argue to the Court?

Mr. Clement: I think whatever way they were using discrimination, I think that that finding of discrimination is going to be much more likely to be correlated with actual constitutional violations in an area that implicates fundamental rights.

And I think when there's a specific finding in the text of the legislation itself of discrimination in voting, I think it's very likely, given the heightened scrutiny that applies to voting--

Chief Justice Rehnquist: Okay.

You said... but now what... what does it mean to say discrimination in voting?

Does that mean that a person was actually not allowed to vote?

Mr. Clement: --In... in some cases, Mr. Chief--

Chief Justice Rehnquist: How... how many cases do they... do you have where the person was not actually allowed to vote instead of not being facilitated in the ability to vote?

Mr. Clement: --Well, Mr. Chief Justice, let me say the... the relevant congressional committee heard testimony of individuals that were turned away from the voting place on... on election day, so there is that kind of evidence.

Now, I can't articulate for you how many instances of that there were.

Justice Scalia: What... what do you mean by turned away?

Turned away because there was no elevator?

Mr. Clement: Turned away because there was no elevator, turned away because--

Justice Scalia: Is... is that a constitutional violation?

Mr. Clement: --If... if the voting official tells the individual, we... you can't vote here, because this--

Justice Scalia: He tells them--

Mr. Clement: --this is not accessible--

Justice Scalia: --we... we don't have an... we don't have an elevator.

Mr. Clement: --Right.

If he tells them--

Justice Scalia: So if you want to get up to vote, you have to find assistance to get up there.

It's very bad, and this legislation is directed against it, and can remedy it upon a suit by the United States, but is it a constitutional violation?

Mr. Clement: --With respect, I think maybe you'd need to know more, but if the individual in the polling place is turning people away because of their disability and they're not offering, don't worry, we have a school down the road that is accessible, that's not the facts.

They're saying, you can't vote, I'm sorry, we don't have the facilities.

I think that would state a constitutional violation.

Chief Justice Rehnquist: How... how many of these instances did Congress find of people who were actually refused the right to vote?

Mr. Clement: Well, Mr. Chief Justice, there was testimony of individuals, I don't have the exact number, and--

Chief Justice Rehnquist: What... what order of magnitude?

Mr. Clement: --I... I think it was anecdotal evidence, and I would say... I mean, to give you a feel for the... the... the sort of order of magnitude, in the state task force reports that Congress authorized, there were 35 instances of inaccessible voting places.

Now, I can't tell you the breakdown of how many of those involved people refused at the door and how many of those involved simply physical barriers.

But I do think it shows that there was a significant problem in this area.

Justice Scalia: I don't think it does at all.

Inaccessible voting place proves nothing at all.

It just proves that the state did not go out of its way to make it easy for the handicapped to vote, as it should, but as it is not constitutionally required to do.

To simply say many voting places are inaccessible proves nothing at all.

Mr. Clement: And again, Justice Scalia, I think that when you couple an inaccessible voting place with local officials who are saying, you can't vote today, we don't have any facilities for you, that does violate the Constitution.

Justice Scalia: They're not saying you can't vote, they're saying we don't have facilities for you to get to the voting place.

Mr. Clement: I... I guess I fail to understand the difference in that in a practical way.

Justice Scalia: I do too.

Mr. Clement: And I think this Court has said on a number of occasions, in areas of fundamental rights, it is simply not true that only intentional discrimination of the kind you have in mind would violate the Constitution.

In the access to court context, in particular, this Court's decision in M.L.B. against S.L.J. suggests that in many instances in order to avoid unconstitutional discrimination, the courts have to waive filing fees of indigent defendants or indigent individuals trying to provide their constitutional right.

If that's true in areas of fundamental rights, it's not clear why... why state officials don't have some obligations under the Constitution itself to make accommodations for individuals with disabilities.

Justice Stevens: I'm not under... I really don't understand one... one argument that's going on.

I don't know why one violation wouldn't be enough to justify congressional action.

It often is that one... one incident triggers a legislative response.

Why wouldn't one... one example be enough?

Mr. Clement: Justice Stevens, I think one example might be enough, especially when coupled by other evidence in the record that is reinforcing and suggestive of the problem, especially when coupled with judicial decisions that we provide in appendix A of our brief.

If you put all that evidence together, it's clear that Congress was reacting to a real problem in this context.

Justice Scalia: And solve that problem by requiring access to... to state-owned hockey rinks or any state-owned buildings, whether it's a courthouse or anything else.

I mean, you're... you're talking about it as though all Congress was directing this legislation at was... was the problem of people getting to the voting place or the problem of people getting to... to courthouses.

That's not how the legislation reads.

It's all public facilities run by the state, hockey rinks, whatever.

Mr. Clement: That's true, Justice Scalia.

And let me say two things in response.

First of all, I think Congress was entitled, once it found a problem in areas of fundamental rights, to say that it's permissible prophylaxis to... to provide a remedy for a broader array of government services.

Justice O'Connor: Well, there... do--

Justice Scalia: --Where there are no conceivable constitutional rights involved.

Mr. Clement: Well, if I could respond to that, I don't think it's that there's no conceivable constitutional rights involved.

Even in areas that don't implicate fundamental rights, this Court itself has found a constitutional violation in the disability context in a case like Cleburne.

And I think if Congress finds that states are engaging in unconstitutional discrimination in areas implicating fundamental rights, that may lead to an inference that they're simply not turning off the switch when they get into other areas.

Chief Justice Rehnquist: Well, would it... would it be a violation... a constitutional violation to refuse to afford special access to a hockey rink?

Mr. Clement: I... I don't think standing alone, Mr. Chief Justice, it would, and I think I would defend that in part as part of the permissible prophylaxis of the statute.

If I could say--

Justice O'Connor: This is what I'd like to get at.

I... I have the impression from your brief that you were suggesting that we could just address the fundamental rights aspect of this case and forget about the rest, but you seem to be saying now that we should consider the whole thing and consider it all valid as a prophylaxis proposition.

Which is it--

Mr. Clement: --Well, I guess--

Justice O'Connor: --that you're proposing?

Mr. Clement: --In fairness, Justice O'Connor, it's both.

I mean, I'm here defending the constitutionality of the statute as a whole, but I also think it would be fair for this Court to follow the practice that I think was suggested in a case it decided called United States against Raines, and focus in on the aspect of the statute that is constitutional, that is valid, and that would be fundamental rights.

Justice O'Connor: Well, we haven't really done that in other cases of this type, of the sovereign immunity of the states, have we?

Mr. Clement: You have not, Justice O'Connor.

Justice O'Connor: No.

Mr. Clement: And we pointed that out, and I think there is some tension between the proportionality and congruence test in this as-applied mode of analysis.

But I do think the Raines case points out--

Chief Justice Rehnquist: It was decided maybe 50 years ago, before any of the more recent cases.

Mr. Clement: --I think that's fair, Mr. Chief Justice.

I simply point to Raines because Raines shows that there's nothing inherently inconsistent between analyzing a section 2 of the Fifteenth Amendment or section 5 of the Fourteenth Amendment piece of legislation, an as-applied analysis.

Chief Justice Rehnquist: And I think there's an important relationship between this Court and Raines, because in Raines, this Court in a sense identified a fault line in a statute that was broadly applicable.

Mr. Clement: It applied both to state actors and private individuals.

And in a case in which it applied to state actors, they said, we may have some concerns about whether it can validly apply to private actors, but we're going to uphold the statute as applied to state actors.

And in the same way, I think if this Court thinks that the statute is constitutional as applied to fundamental rights, but has concerns in its applications to non-fundamental rights, that it could, in effect, decide the case along the same lines.

And, of course, the narrowest ground this Court could decide the case on would be to simply focus on access to the courts.

Justice Kennedy: Suppose the state is building a new stadium, a new hockey rink.

Does it have a constitutional obligation to make it accessible to the handicapped?

Mr. Clement: I'm not sure that it does, Justice Kennedy.

I think that if you isolate the example of the non-fundamental right and ask the question of whether or not that standing alone violates the Constitution--

Justice Kennedy: So... so the Government... the Government's position is citizens don't have some rights of access to public facilities as a matter of the Constitution?

Mr. Clement: --I think they have... they might have some access under the Constitution and some right.

I'm not sure though that I'd be able to make an argument that that constitutional right is protected by something more than that rational basis review.

I think that--

Justice Souter: You're... you're saying that if the only public facility without a ramp was a hockey rink, you'd have a tough row to hoe, but if every public facility, courthouses, schools, et cetera, have no ramps, then you've got a broader context and you've got a different argument?

Mr. Clement: --That's exactly right, Justice Souter.

And one other thing I think that's worth bearing in mind is that--

Justice Kennedy: And what is... what is the constitutional right?

Freedom of movement?

Mr. Clement: --In... in... in the hockey ring context?

Justice Kennedy: What is the... what is the basis for the constitutional right that you accepted in your response to your question... in response to Justice Souter's question?

Mr. Clement: Well, I think it would depend on the facility in particular.

I think in the access to the... in... in trying to get access to a court, it would be access to the courts.

In trying to get access to a polling place, it would be the right to vote.

I think one thing I'd like to emphasize though is that the... that Title II--

Justice Kennedy: There's... there's no... there's no greater right to freedom of movement or general... on the part of citizens, freedom of access to all governmental facilities?

Mr. Clement: --I... I'm not sure that... that this Court has said that yet.

If it's interested in--

Justice Kennedy: I'm asking your position whether or not in your view there is such a right.

Mr. Clement: --It's certainly not one that this Court has ever articulated, and... and... what I would say though is that--

Justice Kennedy: So you don't have a position on the point?

Mr. Clement: --I have... it's not... it's not a matter I've really given any thought, Justice Kennedy.

I apologize for that.

I think the one thing I would like to emphasize is that Title II does not just give an access to buildings, it doesn't give an access to hockey rinks.

It gives an access to programs, services, and activities, and in many cases, it's going to be the same municipal building that has the courthouse in it as well as other non-fundamental rights, and that's exactly a good illustration of why Title II is appropriate prophylaxis, because by making the municipal building accessible, even for something like a kiddie concert that might not implicate fundamental rights, you're also making the courtroom in the same building accessible to individuals who have a constitutional right to access to that building.

One other point I'd like to make is with respect to the damages remedy, which is precisely what seems to be the gravamen of the concern of the state here.

As Justice O'Connor pointed out, this is not a situation like other cases, where, if the Court strikes this down as inappropriate section 5 legislation, there's going to be lots of other remedies.

The state provides none and people are raising constitutional challenges to the Commerce Clause legislation.

The damages remedy that's particularly provided in Title II of the ADA is provided by double cross-reference.

Title II incorporates the remedies available under the Rehabilitation Act, which in turn incorporates the remedies available under Title VI.

Those remedies are entirely judge-made, and as the Thornburgh amicus briefs points out, to the extent that those remedies are the gravamen of the constitutional concern, their judge-made origins gives this Court unique flexibility to interpret the compensatory damages remedy in a way that renders the statute as a whole constitutional.

Broadly speaking, Congress, in passing this statute, found a real problem with the individuals and the entities that are responsible for protecting the civil rights of everyone, denying the rights of individuals with disabilities.

One element of its solution was the element of compensatory damages.

Those compensatory damages are an appropriate response, but it would be very sad if that one element of the statute was used to bring down the entirety of Title II, given that it remains vitally necessary to make the promise of the Fourteenth Amendment a reality for individuals with disabilities.

Justice Ginsburg: Is there a reason why there's a damage remedy in Title II and not in Title III?

Mr. Clement: I think there is, Justice Ginsburg.

I think that one thing, I think, is that Congress... the difference in remedies between Title II and Title III reflects two things.

One, it reflects a judgment that... that unconstitutional action by a state is worse than unconstitutional action by a private entity.

Rebuttal of Michael E. Moore

Chief Justice Rehnquist: Thank you, Mr. Clement.

Mr. Moore, you have four minutes remaining.

Mr. Moore: Thank you, Mr. Chief Justice.

Very briefly, the type of discrimination Congress was referring to in the statement of findings of... and purpose of the act itself is made clear if the Court examines the fifth finding, which... which tells us what sort... what... what concept of discrimination was in Congress' mind when they used the term throughout those findings.

And it talks about not just outright intentional exclusion, but it talks about discriminatory effects of architectural, transportation, and communication barriers.

It talks about overprotective rules and policies and their effects.

It talks about failures to make modifications to existing facilities and practices, and exclusionary standards that screen people out, in other words, an another disparate impact sort of conception of discrimination.

And I think for that reason one can reliably conclude that... that... that Congress was not using discrimination in the sense of completely arbitrary and irrational discrimination of the sort that's prohibited by section 1 of the Fourteenth Amendment with respect to disabled persons, but rather, in the findings and purpose, Congress makes clear that it is addressing a very real social problem, one that needs addressing, but one that does not arise to the level of a... a widespread pattern of constitutional violations on the part of the state.

Justice Breyer: But it begins section 5 by saying, individuals with disabilities continually encounter various forms of discrimination, including outright intentional exclusion.

So it seems to want to deal with it all.

Mr. Moore: Right, but out... of course, outright intentional exclusion is not necessarily unconstitutional either if it is rationally based, with respect to disabled persons.

So one... the use of the term discrimination--

Justice Kennedy: What... what's your authority for that proposition?

Mr. Moore: --The City of Cleburne case, Your Honor.

Action by the state that intentionally and expressly classifies on the basis of disability is subject to minimum rational basis scrutiny, and in the examples discussed during the Solicitor General's argument, for example, the hockey rink example, I mean, one impact of a lack of ramps or... or--

Justice Stevens: May I ask you about the hockey example?

Supposing building a new hockey example, the architect said you could do it with equal cost, providing access and not providing access.

Would it be constitutional assuming there's no extra expense to provide no access?

Mr. Moore: --I... I think so, depending upon if there were other reasons for doing it.

If... cost isn't the only factor that dictates the design of a building.

It might be that the site--

Justice Stevens: Well, supposing the general manager of the hockey team doesn't like handicapped people.

Would that be a sufficient reason?

Mr. Moore: --Your... your hypothetical is that the architect expressly designs the building to spite disabled people?

Justice Stevens: No, the... he has two... two plans, one lets them in and one doesn't, and the manager says, oh, we don't want these people, they're too much trouble to handle for the ushers when they get them in their seats and so forth.

Mr. Moore: Your Honor's question posits a rational basis for that decision.

Justice Stevens: And that would be a sufficient rational basis in your view?

Mr. Moore: That... under this Court's minimum rational basis jurisprudence, yes, it would.

Justice Stevens: Do you think the Cleburne case was a minimal rational basis case?

Mr. Moore: I... I know, Your Honor, there... there has been a lot of scholarly debate about that, but as a lawyer for a state, we must take what the Court said at face value.

Thank you very much.

Chief Justice Rehnquist: Thank you, Mr. Moore.

The case is submitted.

Attribution:

The Oyez Project

Featured:

Frew v. Hawkins - Oral Argument

Fri, 09 Jan 2009 14:49:07 +0000

Case:

Frew v. Hawkins

Media File:

02-628_20031007-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Susan F. Zinn

Chief Justice Rehnquist: We'll hear argument now in No. 02-628, Linda Frew v. Albert Hawkins.

Ms. Zinn.

Mr. Zinn: Thank you, Mr. Chief Justice, and may it please the Court:

Sovereign immunity should not bar enforcement of the consent decree in this case for two reasons.

First, when State officials ask a district court to enter a consent decree, they submit their rights concerning the decree for judicial determination, thereby waiving any possible claim for objection on the basis of immunity.

Second, the decree in this case provides prospective relief to protect the supremacy of Federal law, exactly as envisioned by Ex Parte Young.

Justice Scalia: May I ask on... on the first point?

You say when State officials submit to... to a decree.

It's... it's immaterial, as far as you're concerned, whether the State Attorney General defended the... the suit or represented these officials.

Justice Kennedy: Is that right?

Mr. Zinn: No, it's not immaterial.

The... Texas' Attorney General is authorized by the legislature to represent the State and its employees...

Justice Scalia: No.

I understand that, but suppose he hadn't been and suppose it is just the State officials who appeared in an Ex Parte Young suit.

They're... they're sued.

There's no other State official who takes part in the proceedings.

Nonetheless, they enter into a consent decree.

Is it your submission that even without any other participation by anybody else in the State, that consent decree binds not just them, but I gather you say future officials in... in their offices?

Right?

Mr. Zinn: Unrepresented by the State Attorney General.

Justice Scalia: Unrepresented.

Justice O'Connor: You would...

Justice Souter: Well, but wouldn't... wouldn't there be a question of fact in that case?

I mean, it would be odd, I... I would suppose not to have the State Attorney General there, and... and wouldn't the... if I were a trial judge, I'd say, well, is this the State that is submitting this... this settlement?

I mean, wouldn't... wouldn't there be, theoretically at least, a fact question in Justice Scalia's circumstances?

Mr. Zinn: Fact and a matter of law, Your Honor.

The question under this Court's decision recently in Lapides would be whether those officials are authorized to represent the State in court, even absent their attorney.

That would be so unusual in Texas I can't imagine it even happening, but...

Justice Scalia: No, but that... but that's a waiver theory.

I mean, if you're proceeding on a waiver theory, you... you need the State there.

But let's assume you're not proceeding on the waiver theory.

You have the second ground, which is just if you have authority to enter the decree, you have authority to enforce the decree.

Now, for purpose of that argument, does it make any difference to you whether the State Attorney General is there or whether these officials have the power to represent the State?

Mr. Zinn: Under our second argument, our position is that since the decree is a remedy ordered in a valid Ex Parte Young case, it provides prospective relief only from alleged ongoing violations of Federal law.

The... the remedy is proper.

Chief Justice Rehnquist: And therefore it's consistent with the Eleventh Amendment without any waiver.

Mr. Zinn: Correct.

The Eleventh Amendment is not engaged for that... for that...

Justice Kennedy: Can you tell us how it worked?

The representative of the Attorney General was in court and he stands up and he says, we insist on sovereign immunity, and the judge say, all right, that's act one.

It's closed.

And then did the same officials stay and they say, well, now we're here on the Eleventh Amendment?

I mean, how... how did this work?

And...

Mr. Zinn: In... in this case...

Justice Kennedy: And let... let me just say also there's no excerpt of record or docket entry.

The only thing I have is the consent decree.

Was there any order saying the consent decree dated so and so is hereby entered as the judgment of the court?

I mean, can I find that anywhere?

Mr. Zinn: Yes, Your Honor.

The... the lodging has the... as its last page, the order to correct the consent decree which states that the... the order was... the unopposed motion to... to correct the consent decree has merit and should be granted.

The decree was entered as the court's order in February of 1996.

Justice Scalia: And...

Justice Kennedy: There was no separate order.

It was just this consent decree that's in the lodging.

Justice O'Connor: That's...

Mr. Zinn: That's correct.

Justice Scalia: that's it.

Mr. Zinn: That's correct.

Justice Stevens: Okay.

Justice Kennedy: Now maybe we can go back and you can tell me who the... was there an act one and an act two, act one being the State asserts immunity, act two being the Eleventh Amendment, or... or were the same parties before the court at all times?

Mr. Zinn: The same parties...

Justice Kennedy: Wearing different... wearing different hats or proceeding under some different theory.

Mr. Zinn: The same parties were before the Court for the entire case with the exception of two State agencies which were dismissed early on.

Justice Kennedy: Right.

Justice Ginsburg: That's the puzzle in this case.

The State as State was dismissed at the threshold, and then we have an Ex Parte Young case.

And now we're talking about Eleventh Amendment immunity again.

So the State is out of the case.

It's proceeding as an Ex Parte Young case.

How did it then become converted back into a case against the State so that we're talking about whether the State waived its immunity?

Mr. Zinn: Yes, Justice Ginsburg.

Our position, as well recognized apparently, is that this is an Ex Parte Young case.

However, the State officials in their briefing have urged that that is not correct and that this... this, at least in part, is not a valid order under Ex Parte Young.

Justice Ginsburg: The State, if... if I remember correctly, came before the judge and urged the approval of this consent decree.

Mr. Zinn: Correct.

Chief Justice Rehnquist: Did it not?

Justice Ginsburg: And there were... there were several representatives of the State who so testified.

Mr. Zinn: Correct, and they were unanimous.

The... all of the State officials and their lawyer were unanimous in requesting the district court to enter the consent decree.

Justice Scalia: That... that's your waiver.

That's the waiver side of your argument.

Mr. Zinn: Correct.

Justice Scalia: I frankly am reluctant to... to decide the case on that ground if another ground is available simply because that would require a case-by-case investigation as to... to what extent the participation by... by other State officials existed, whether they were authorized to participate and so forth and so on.

Whereas, your other ground doesn't require that... that case-by-case investigation, and wouldn't that be a... a much clearer line to... to establish?

Mr. Zinn: In our... in our view both positions are clear in this case.

The... the...

Justice Scalia: You have to make sure that the State Attorney General was authorized to represent the State in this case or whatever other official you say committed the waiver.

That would... that would be a factual investigation in every case, wouldn't it?

Mr. Zinn: No.

In Lapides, it appeared to... to be a question of law.

The issue...

Justice Souter: No, but Justice Scalia's question didn't go to waiver.

It went to representation.

And Lapides says, if you can represent, you can waive.

But there would be a question of representation, wouldn't there?

Mr. Zinn: But in Lapides, it appeared to me that that was resolved fairly simply based on the application of Federal law to the State...

Justice Souter: Once... once it was understood that he could represent.

Mr. Zinn: Yes, which was determined by an examination of the State statutes involved.

And the Texas law on that point is almost word for word the same as the... the Georgia constitutional provisions...

Justice Souter: Oh, sure.

Easy.

I mean, I'm... I'm not saying that this would be a difficult case, but you would have to, I suppose, make that inquiry.

Mr. Zinn: But...

Justice Scalia: This case might not be difficult, but I... I don't like going rummaging around in State law.

I find Federal law hard enough.

Unidentified Justice: [Laughter]

Mr. Zinn: I do too, Your Honor.

Justice Ginsburg: Ms. Zinn, I thought that you said in response to my question that this... this waiver... that's not your preferred ground.

You said you're arguing it because the State insisted that this was Eleventh Amendment and it wasn't waived.

But your... you brought an Ex Parte Young suit.

You've got a consent decree under that heading, and... and that argument, if it prevails, would be... one would not need to reach the question of the Eleventh Amendment in the... .

Mr. Zinn: That's correct.

The... one way to look at this is that given the Texas Attorney General's argument that this is not an Ex Parte Young case, not a valid order under Ex Parte Young, to the extent that the Court agrees with that, those points have been waived because by asking the district court to enter the consent decree, the State officials submitted their rights concerning the decree for judicial determination.

And by doing that...

Justice Kennedy: Let's put... put it this way.

Are you saying that if the State officials negotiate a consent decree that goes beyond the Eleventh Amendment... or that goes beyond... pardon me... that goes beyond Ex Parte Young's...

Mr. Zinn: Yes.

Justice Kennedy: rules, that then there must be a waiver?

Mr. Zinn: No.

Justice Kennedy: All right.

How can they do that without a waiver?

Mr. Zinn: Well...

Justice Kennedy: Especially if they've asserted their immunity at the beginning.

Mr. Zinn: Because under this Court's traditional rules concerning equitable decrees, even a disputed injunction need not be specifically tied to the provisions of law for the...

Justice Kennedy: So you want us to write an opinion that says after the State has specifically asserted its Eleventh Amendment immunity, its officials may negotiate a consent decree which goes beyond the boundaries of jurisdiction set forth in... in Ex Parte Young without waiver.

Mr. Zinn: The question of the scope of remedy is a different question from the Eleventh Amendment/ Ex Parte Young question.

The Ex Parte Young question is a jurisdictional question, but the question of the scope of proper remedy...

Justice Kennedy: Well... well, you introduced the point of remedy.

That wasn't part of my question.

My... my question was whether or not, having asserted the immunity in a... in... under the assumption that the immunity has not been waived, the State officials can negotiate a consent decree that goes beyond the usual rules of Ex Parte Young, it goes beyond the authority granted to the courts under Ex Parte Young, without relying on the theory of waiver.

Mr. Zinn: For example, damages?

Would that fit within your hypothetical?

Because in that case without waiver, no.

Chief Justice Rehnquist: You... you really can't tell until the decree is entered whether or not it complied with Ex Parte Young, I would think, because it isn't necessarily fought out on the... in the... in the trial of the case exactly what the remedy will be.

Mr. Zinn: The... the validity of consent decree should be... as in an Ex Parte Young case, should be measured under this... this Court's decision, for example, in Milliken and Rufo.

Milliken says that the remedy must tend to or to remedy the violation proven.

And Rufo says that when you have a consent decree, it may aim even higher than that.

Because in the course of...

Justice Scalia: But maybe... maybe there should be a special rule for Ex Parte Young cases.

In the ordinary case, going beyond the mere violation does not offend any other provision of the Constitution, but the argument here is, oh, once you go beyond holding the officer to compliance with Federal law, once you go beyond that, you're out of Ex Parte Young and you're moving against the State and the Eleventh Amendment is a bar.

So maybe there's a special rule with regard to remediation in... in Ex Parte Young cases.

Mr. Zinn: Milliken involved a State official, and it's one of the key cases about the scope of disputed injunctions.

And it says that remedial orders may go beyond the exact scope, the precise scope of the violation at issue.

Justice Breyer: Is this outside of Ex Parte Young?

I... I mean, the way I was thinking about it, which might not be right, is that what you were saying in the second part of your argument is that Ex Parte Young permits, without the consent of a State, an individual to sue a State official in his official capacity, asking for an injunction on the ground that the official has violated Federal law.

That's what Ex Parte Young says.

Mr. Zinn: Correct.

Justice Breyer: And now you get that injunction, and that injunction contains provisions that aren't all about Federal law.

Some of them are about related State law.

And I thought perhaps the way to look at it was, and that injunction does not violate the Eighth... the Eleventh Amendment.

You don't need a State to give consent because it's all part of an effort to cure the Federal violation with related matters thrown in.

Mr. Zinn: Correct.

Justice Breyer: Ex Parte Young authorizes such a thing.

Mr. Zinn: Correct.

Justice Breyer: Now, is that last statement right?

Mr. Zinn: Yes.

Justice Breyer: So then it's not outside Ex Parte Young.

You're giving us an interpretation of what Ex Parte Young means.

Mr. Zinn: Yes.

Chief Justice Rehnquist: And what is your authority for saying that Ex Parte Young validates the going beyond the Federal issues involved?

You mentioned Milliken.

Is that... is that authority for that?

Mr. Zinn: Milliken.

Hutto v. Finney would be another example.

A district court need not sit back and hope that the State officials will comply with its proper remedial order.

It can enforce that order.

Chief Justice Rehnquist: Well, I'm not talking so much about enforcement as about entering it in the first place consistently with Ex Parte Young.

Mr. Zinn: Well, this Court's decision in Firefighters generally sets out standards for entry of a consent decree, and a decree is properly entered, as this one was found to be, if it furthers... if it serves to resolve a dispute within the court's subject matter jurisdiction, which is the case here... this is a Federal question about the Medicaid Act... if it is generally within the scope of the pleadings, which is true in this case, and if the remedy in the decree serves to further the objectives of the... in this case, the Medicaid Act, which is true about all of the provisions of the decree in this case.

Justice Souter: So you're really saying that it doesn't go beyond Ex Parte Young.

I mean, the... the premises of some of the arguments here that it does go beyond it, in your judgment, is... is in fact a false premise.

Mr. Zinn: That's correct.

Our position is that the district court could have entered this... this decree as a disputed injunction if the State officials had not decided to consent.

Justice Breyer: When you had...

Justice Scalia: Would you help... excuse me.

May I ask one more question?

Justice Souter: Would you help me on one thing?

My understanding was... and I... I may simply be wrong on this.

My understanding was that the claim that this went beyond Young was not a claim that it... it mandated State law... or mandated the performance of State law obligations, but that it went further than it had to to enjoin the Federal violation by getting into details about what the State officers had to do or had to refrain from do... from doing.

Am I correct that it's... it's not... the claim is not that it got into State law but that it simply went beyond the scope of a proper remedial order under the Federal law?

Is that correct?

Mr. Zinn: Well, I'd hate to put words into Mr. Cruz's mouth.

Justice Breyer: I know.

Justice Ginsburg: I should be asking...

Mr. Zinn: But I believe that is part of their claim.

Justice O'Connor: Okay.

Mr. Zinn: May I reserve the rest of my time?

Argument of Irving L. Gornstein

Chief Justice Rehnquist: Very well, Ms. Zinn.

Mr. Gornstein, we'll hear from you.

Mr. Gornstein: Mr. Chief Justice, and may it please the Court:

Enforcement of the decree in this case does not violate the Eleventh Amendment for two reasons.

First, any Eleventh Amendment objection was waived, and second, enforcement is permissible under Ex Parte Young.

Now, the waiver issue arises in this case because the State officials are arguing that the relief in the consent decree that is directed to them violates the Eleventh Amendment, and it is that Eleventh Amendment objection that those same officials, together with the Attorney General, waived when they asked the district court to enter the very relief that they are now objecting to on Eleventh Amendment grounds.

And the reason that there is waiver is that under this Court's cases, when the Attorney General on the... of the State on behalf of the State invokes a Federal court's jurisdiction, Eleventh Amendment immunity is waived.

Now, when the Attorney General in this case entered into a consent decree on behalf of State officials in their official capacity and then asked the district court to enter that decree, he clearly invoked that court's jurisdiction and waived any Eleventh Amendment objection to the entry of that judgment against those State officials.

Justice Scalia: Suppose the Attorney General had not been involved and simply the State officials on their own entered into this consent decree.

Mr. Gornstein: First of all, you would have the question of waiver, and that is answered by the inquiry that Lapides and other waiver cases have... have instructed, which is do those... are those officials authorized by State law to conduct litigation on behalf of the State.

Justice Scalia: So that would be a factual inquiry in every case whether the particular official...

Mr. Gornstein: Well, I would say... I would say it's a legal question...

Justice Scalia: I understand.

Mr. Gornstein: that typically in almost every State, Justice Scalia, it would be the Attorney General who is authorized to represent the State in litigation.

Justice Kennedy: Well, Justice Scalia can preserve his own hypothetical.

Mr. Gornstein: Right.

Justice Kennedy: But suppose that there was... that the officials did not have the authority to waive the Eleventh Amendment, but they did enter into a consent decree.

Mr. Gornstein: Yes.

Then you get to the second argument in this case which is an Ex Parte Young argument, and the Ex Parte Young issue is that the consent decree in this case is permissible under Ex Parte Young because it provides prospective relief against State officials based on the Federal Medicaid statute.

And those are the three requirements of an Ex Parte Young suit, that it be...

Justice Scalia: This... this carries you so far beyond the theory of Ex Parte Young, and the theory of Ex Parte Young is you're not impinging upon State sovereign immunity when you are simply requiring State officials to adhere to State law.

They are acting ultra vires when they're... when they're violating Federal law, and therefore, you're not impinging upon the State's sovereign immunity.

But now with the theory that you're expounding, you're not only holding them to compliance with Federal law, but you're saying even when you're not acting ultra vires, when you have a lot of perfectly legal options of how to comply with Federal law, you will... you will choose this option.

And that... that is, it seems to me, impinging upon State sovereign immunity in... in a way that... that the mere theory of Ex Parte Young does not justify.

Mr. Gornstein: In an Ex Parte Young action, State officials like all other Federal litigants are free to enter into consent decrees that go beyond what is strictly required by Federal law on one or more issues because there is a tradeoff.

They then get less relief or no relief on other issues that they may care about.

So this is a system that benefits Federal court litigants generally, and it is also one that benefits the State and its State officials.

Justice Scalia: I'm not worried about the officials.

Yes, the officials get a good deal.

They... they get of the suit.

They get a... a decree.

But what about the State who on our... on our current hypothesis, the State is out of the proceeding.

The Attorney General is not there and here are these State officers who are giving away a whole lot of... of options that the State has, and they're... they're saying, yes, bind the State even though the suit is just against me.

Mr. Gornstein: First of all, we... we presume... this Court presumes that State officials, when they act in their official capacity, are acting in good faith to implement the best interests of the State.

Second of all, the State does benefit when its officials can enter into decrees that...

Justice Ginsburg: Mr. Gornstein, is... is taking the Attorney General out of it kind of a hypothetical question?

Do you know of any institutional decree, whether it involves schools, prisons, the Medicaid program which the State Attorney General isn't there?

Mr. Gornstein: I don't know of any such case, and as I was telling Justice Scalia before, all the Court's waiver cases up until now have been ones in which the Attorney General has represented the State and has waived the... has... has been authorized by the State to represent the State's interests in litigation.

Justice Scalia: Might be improper for... for the... for the trial court to go beyond strict compliance with Federal law, to... to approve a consent decree that goes beyond that without the presence of the... I mean, maybe waiver is a necessary concomitant of... of the theory of Ex Parte Young that you're giving us.

Mr. Gornstein: No, I don't think it... it is a necessary... waiver is not a necessary concomitant because it is a component of an Ex Parte Young case.

This Court said, for example, in the Rufo case that State... it had no doubt that State and local officials, in order to resolve litigation, could agree to relief that goes beyond what's required by Federal law.

Justice Souter: Mr. Gornstein, I want to clarify what you mean in your argument when you say go beyond.

There are... and here are two possibilities.

One, you throw in an entirely new obligation, and you say, you know, by the way, we'll... we'll also agree to a program of pediatric podiatry, which isn't covered by the statute.

We'll do that too just to show you how good our faith is.

A second possibility is we'll show you how we will implement our agreement to abide by what we understand to be Federal Court law.

We will throw in a how-to-do-it or a how-we-are-going-to-do-it clause.

I understand your argument, when you refer to going beyond the letter of Federal law and agreeing to that in a settlement, to refer to a how-to-do-it kind of agreement as opposed to a new substantive obligation agreement.

I assume.

Is that correct?

Mr. Gornstein: Yes, but let... let me explain further.

Justice Souter: I guess my question is...

Mr. Gornstein: Yes.

Justice Souter: why do you acquiesce in this phrase, going beyond Ex Parte Young?

Have you ever...

Mr. Gornstein: No, I...

Justice Souter: Has anybody seen a consent decree that simply said, we'll obey the law?

Mr. Gornstein: No.

I didn't say it went beyond Ex Parte Young.

I said it went beyond what was strictly required by Federal law.

And as this Court said in the Rufo case, every Federal court remedial order that's entered by a Federal court goes beyond what's strictly required by Federal law.

Justice Breyer: That's all...

Mr. Gornstein: And Milliken permits that as long as it's aimed at remedying a violation.

But there's one step beyond Milliken here, and that Rufo says that you can even agree to relief that goes beyond what a court would order after a trial as long as the relief furthers the objectives of the underlying law because there you are operating with the consent of the State officials in... in selecting that relief.

Justice Scalia: You should have given a different answer to Justice Souter then because certainly pediatric podiatry would further the objectives of the law to provide the medical care to... to children.

Mr. Gornstein: Well, at some point it has to resolve a bona fide dispute within the subject matter jurisdiction of the court as well, and if there's no arguable violation of Federal law that the relief relates to, then it falls outside of what a court should enter as a decree under Rufo.

Justice Scalia: Well, you really haven't saved us a whole lot of trouble then.

I... I frankly thought that one of the attractive features of your position was that once you have an order, that's the end of it.

You don't have to try the order when... when you seek enforcement to parse out which parts of it go too far and which parts don't go too far.

You tell me there are some... some that can go too far.

We have to look to whether this is pediatric podiatry or... or not.

Mr. Gornstein: In general, once a decree has been entered, there's no objection that can be made at the enforcement stage other than subject matter jurisdiction.

But subject matter jurisdiction would include an inquiry into whether what was at issue in the case was... if it was an arguable Federal claim or sought to further the objectives underlying an arguable Federal claim.

That's going to be rare that it won't do that, but if it doesn't do that, the State has a right to object to that on subject matter jurisdiction grounds.

By the way, the State also has the right always to move for modification of provisions under this Court's decision in Rufo that are not arguably related to... that are not related to any arguable violation of Federal law.

If it's just a frivolous underpinning to the suit, the... the State could always move for modification and get that provision eliminated under Rufo.

Justice Scalia: The Attorney General was involved in the case in Rufo.

You said in all of the cases that you know...

Mr. Gornstein: No, no.

I... no.

Rufo itself was a suit against local officials, but what Rufo said is that State and local officials can enter into these... these kinds of agreements and that State officials and local officials could obtain modifications based on changes in circumstances.

Argument of R. Edward Cruz

Chief Justice Rehnquist: Thank you, Mr. Gornstein.

Mr. Cruz, we'll hear from you.

Mr. Cruz: Mr. Chief Justice, and may it please the Court:

This case presents the basic question whether Federal district courts are immune from the strictures of sovereign immunity and Ex Parte Young when administering Federal consent decrees.

In this case, it is clear what Federal law requires.

The Medicaid statute is very clear and everything that Federal law requires, the State of Texas is doing.

The dispute that the parties are having here is not simply a theoretical dispute about whether... what degree of connection there should be between a remedy and... and an ongoing violation of Federal law.

There is no violation of Federal law, and that fundamentally is the problem.

Justice Stevens: But can I ask you this question?

You say there's no violation of Federal law now.

Does that mean there was no violation of Federal law when the lawsuit began?

Mr. Cruz: It does not necessarily mean that and no court has determined that.

Justice Stevens: No, but isn't it... isn't the... in order to determine the court's power to act, don't you have to look at the facts at the time litigation started?

Mr. Cruz: Well, under Ex Parte Young, the question is not retrospectively was there a violation of Federal law, but... but...

Justice Stevens: No.

I understand that, but still it seems to me your... your jurisdictional inquiry would focus on the situation at the time the litigation commenced.

Mr. Cruz: There is a strong argument that there was not a violation of Federal law at the time the litigation commenced, but that matter was never adjudicated one way or the other.

Justice Stevens: That's right because the State, in effect, waived its right to adjudicate that.

Mr. Cruz: What the State did is pursue an option to settle the... the matter and avoid an adjudication.

Justice Stevens: But doesn't that mean there was at least a potential violation of law that would give the court jurisdiction to enter a remedy, which might go beyond merely saying, don't violate the law in the future, that because you may have violated the law in the past, I have the power to order you to do some things that may not in themselves be illegal?

Mr. Cruz: We would agree that this case was initially properly brought under Ex Parte Young in that the complaint, under the terms of the Verizon decision, alleged a violation of Federal law.

However, Ex Parte Young is not simply a formulistic pleading requirement.

It also is... is, under this Court's decision in, among other things, Green v. Mansour, a restriction on the Federal court's jurisdiction that... that what there would have to be for your hypothetical, Justice Stevens, to carry through is not simply a determination that there might be a violation of Federal law.

Justice Stevens: Well, do you think in order to enter a consent decree, the judge had to adjudicate that there was a violation of Federal law?

Mr. Cruz: No, Your Honor.

But in order for the court now to exercise the coercive authority of the Federal court and to order the State officials to engage in a very detailed course of conduct, the predicate that justifies the Young fiction in the first place is an ongoing violation of Federal law.

Justice Scalia: So you're... you're telling us that the effect of this consent decree, what Texas achieved by it, is it comes into court and says, oh, let's... let's not fight about whether there was a violation or not, we'll accept a consent decree, and the effect of this consent decree is simply we'll fight about this same question later.

Right?

Mr. Cruz: If the agreement was...

Justice Scalia: And you haven't given up anything else.

You've just said, let's... let's not fight about this.

Why would the other side ever accept such a consent decree?

It's crazy.

Mr. Cruz: Well...

Justice Scalia: You're just telling them, you know, just dismiss this case, and if you want to get us, bring the same case later.

Why would I enter into such a consent decree?

Mr. Cruz: The consent decree offered the other side a great deal.

For one thing, the State, as a voluntary agreement, agreed to carry out an extensive course of conduct.

And if you look at the actual record...

Justice Ginsburg: Only so long as the State chose to do it because on your theory, you... you create this oddity.

They had power... the court had power to enter the decree but not to enforce it.

Would you take the same position if this had been a litigated judgment and the exact same decree came out at the end of the line?

And then the State says, well, this was an Ex Parte Young suit and even though we litigated and lost, we can still say all bets are off because at the enforcement stage, you have to prove the case all over again.

Now, are you making a distinction between a consent decree and a litigated judgment, or do you accept that this... if this case had been litigated and that decree entered, it could be enforced?

Mr. Cruz: Justice Ginsburg, we're... we're making both distinctions.

This would be a more difficult case if there had been... it had been litigated and there had been a determination of a violation of Federal law, but...

Justice Breyer: Why?

Justice Kennedy: Why would it be more difficult?

It seems to me this is more difficult.

You agreed to it.

Mr. Cruz: It would be more difficult because you at least had the predicate for Ex Parte Young in the first place.

You had a violation of Federal law.

Justice Kennedy: Well, but it seems to me that when matters are in doubt and a consent decree is entered, obviously with the consent of both parties... that's what it means... that it is a question of Federal law.

It's a Federal judgment.

Mr. Cruz: It... it is absolutely a Federal judgment, but on the terms of the consent decree, there was no concession of liability.

No court at any time has ever found the State of Texas was violating Federal law.

Justice Scalia: No.

Justice Souter: But your argument, as I understood it a moment ago, is that you can't go beyond Federal law because there's no violation of Federal law now.

And that would be exactly the same whether the predicate was a... a litigated judgment or a consent decree.

Mr. Cruz: In essence...

Justice Souter: So we're in... it seems to me you're in the same boat under Justice Ginsburg's hypothetical.

Mr. Cruz: The second part of Justice Ginsburg's hypothetical about whether even if this were fully adjudicated, would this content... consent decree be proper, the answer is plainly no because this consent decree does not enjoin ongoing violations of Federal law.

There are a number of provisions in this consent decree...

Justice Souter: So in other... I take that to mean, yes, we would be making exactly the same argument...

Mr. Cruz: Absolutely.

Justice Souter: if this had been a litigated decree.

We would... we would say that...

Mr. Cruz: Absolutely.

Justice Souter: that the order saying, A, you did something wrong, you violated Federal law, and B, in the future to avoid that, you've got to do the following things, A, B, C... you would say so long as at the moment of enforcement we are not then violating Federal law in the sense found in the judgment, they cannot order A, B, C, and D.

Mr. Cruz: Under Milliken, the question would be the relation...

Justice Souter: No.

I want to know under you.

Unidentified Justice: [Laughter]

Justice Souter: On your theory, isn't that going to be your answer?

Mr. Cruz: Our answer is going to be that the... the jurisdiction that this Court has created under Ex Parte Young and its progeny exists for one purpose, to vindicate the Supremacy Clause.

Justice Souter: No, but you're... you're getting into... into a general answer, and I want a specific answer.

As I understand it, you would say that in... that following the litigated case with an A, B, C, D order, you would say that if... if the State... if the... if the other side tried to enforce A, B, C, and D, you could come into court and say, we are not now violating Federal law in the sense originally alleged.

Therefore, A, B, C, D, and E cannot be enforced.

Isn't that correct, that that would be your position?

Mr. Cruz: If C and D were necessary to ensure compliance with Federal law, then they would be permissible remedies once there was a finding under Federal law.

Justice Souter: Well, all right.

Let's... let's compromise on an answer to the question.

Your answer would be we can always object to A, B, C, and D.

Unidentified Justice: We may or may not succeed, but we can always object to it, even though we haven't appealed it.

Mr. Cruz: If there's an ongoing injunction...

Justice Souter: We didn't... we didn't appeal saying, look, Supreme Court, they... you know, they... they nailed us to the wall on liability, but they do not have jurisdiction to order A, B, C, and D and E because they don't have jurisdiction to enforce it.

You didn't take that appeal and yet you feel you can raise that later.

Mr. Cruz: If the injunction is ongoing, then the State officials could come in at any point and say, C, D, and E are not necessary...

Justice Breyer: Can I ask you what is the purpose of doing this?

I mean, let's think of the Medicare provisions or the Social Security provisions, the regulations, the statutes.

They cover volumes.

Think of consent decrees.

Yours is only 80 pages.

I guess others might be hundreds of pages.

And so what you're saying is that after these have been entered, they've been entered because there was a violation of Federal law in the view of the plaintiff and the defendant agreed.

Okay?

Now, what you're saying is at any time, we go through these hundreds of pages and we try to figure out whether each word in these hundreds of pages actually in itself reflects the Federal law violation, of which, remember, there were 3,000 volumes, or the State law violation, of which there were 10,000 more volumes, and once we figured that out, then you're going to say you can do paragraph 867 but you can't do paragraph 868.

Now, I just wonder what is the purpose of this exercise?

Mr. Cruz: Justice Breyer, two responses.

First of all, there was not an agreement that there was a violation of Federal law.

It's certainly true the plaintiffs...

Justice Breyer: No.

I... I don't... that's not...

Mr. Cruz: consent decree explicitly...

Justice Breyer: That's not answering my question at all.

So would you please direct yourself to my question?

Mr. Cruz: The second response... your... your question refers to volumes of Federal law and State law that may or may not have been violated.

This case is very simple.

It's one short section of Federal law.

Justice Breyer: I'm not asking about this case.

I'm asking about the purpose of the exercise that you are suggesting that the Constitution requires us to undertake.

My suggestion was that it is... I was trying to make it look absurd to go through that exercise because it would put everybody to a lot of work for no real reason.

That was what I was trying to suggest.

Now, I suggested it so you would respond to it because I'm sure you don't agree with that, and therefore, I'd like you to present the response.

Mr. Cruz: Justice Breyer, the exercise of requiring a... a violation of Federal law derives from this Court's cases beginning with Ex Parte Young and moving on.

Justice Breyer: You're saying the cases require it.

Now, if that's so, that's the end of it.

You're right.

But I had the impression a different case had a much better solution to the problem that you raise, which is that there's some provisions in this thing that really have nothing to do with Federal law at all.

And that's called Rufo.

And what the... what... what you're supposed to do in that situation is you can make your argument.

You go to court.

You say rule 60(b).

You say, judge, you see this provision over here?

This has nothing to do with anything.

And if the judge is right, you win.

Now, why isn't that a much more practical approach for the problem that you're raising?

Mr. Cruz: Justice Breyer, under the Fifth Circuit precedent, the means to challenge this sort of decree is precisely what we did, to challenge it.

Under the Lelsz v. Kavanagh case, the means to challenge it is to challenge the enforcement and...

Justice Souter: You mean you can never move for modification prior to an enforcement action?

Mr. Cruz: Well, you can, and that's the second part which is the Fifth Circuit treated what we did as a motion to modify or vacate the decree.

That's how the Fifth Circuit interpreted what we did.

The... the plaintiffs came at a year and a half...

Justice Ginsburg: The Fifth Circuit... excuse me.

The Fifth Circuit said you had to... you had to segment this decree into bites, and plaintiff had to prove each one of them as a violation of Federal law.

That's worlds different from saying, here's a decree, time has shown that it's not... that it's too onerous, so court, please modify it.

60(b)(5) accepts the decree as valid and enforceable, but says that it should be modified in light of our experience under it.

Now, that's quite different from saying you can't enforce it.

You have to prove the case all over again at the enforcement stage.

Mr. Cruz: It is true that treating our... our argument as a motion to modify is not purely based upon changed facts and law.

It is in part because you have the 2 years of compliance and the tremendous record the State has, but another fundamental element of it was a challenge that the terms of the consent decree go far beyond what Federal law requires.

And let me focus just for a moment...

Justice Scalia: Why don't you make a virtue of a necessity and say that that is precisely your response to Justice Breyer, that you cannot do what you want to do under rule 60(b)?

Mr. Cruz: That...

Justice Kennedy: Why not?

Justice Breyer: That's...

Justice Scalia: For the reason that Justice Ginsburg stated, that all 60(b) enables you to do is to eliminate provisions that... that have been found too onerous, not to eliminate provisions that are not indeed terribly onerous but go beyond what... what the court had jurisdiction to impose.

Justice Breyer: It's a totally different question.

Mr. Cruz: My... my...

Chief Justice Rehnquist: Right?

Mr. Cruz: My hope...

Justice Scalia: So that's your answer to Justice Breyer.

Mr. Cruz: My... my hope would be...

Justice Scalia: But that... that leaves you with Justice Ginsburg's problem.

Unidentified Justice: [Laughter]

Mr. Cruz: My hope would be to make virtues out of either approach and to say that it could either be done on... under an effort to modify or a challenge of enforcement, that either avenue is available.

And the Fifth Circuit treated it as both.

I mean, that's precisely what the Fifth Circuit did.

The... the...

Justice Stevens: Modification doesn't depend on changed circumstances, does it, under that theory?

You're saying we want to modify it because we shouldn't have agreed to it in the first place.

Mr. Cruz: Well, we don't know what the circumstances were when... when this matter was entered because there was no adjudication on the merits.

But we do know now...

Justice Stevens: Well, but there are allegations of fact that would have... the allegations did allege a... a violation of Federal law, did they not?

Mr. Cruz: If those... they did, and if those allegations were true, then there are changed circumstances because the district court was very clear that there is absolutely no evidence that even a single class member has ever requested services and been denied.

And that really is the nub of the dispute because petitioner...

Justice Stevens: Yes, but that's not an answer to all... the statute requires more than waiting for requests to be made.

Mr. Cruz: But... but that really is the critical dispute because the statute, the Medicaid statute...

Justice Stevens: As I understand the record, you've made marvelous and extensive changes in your practices, and that's why you're in such wonderful shape now.

But maybe you wouldn't have been if the lawsuit had never been filed.

Mr. Cruz: That's possible, and so this could be fairly characterized as a motion to modify because there is not an ongoing violation of Federal law now.

What the Federal law requires is that whenever an eligible member requests screening, they receive it.

Petitioners don't like that reading and what the petitioners convinced the Federal district court to do in this case is read the words where they are requested out of the statute.

And all of this fight about what the proper baseline is, is it Federal law or is it the consent...

Justice Breyer: Well, but I want to know if you could go... could you go through 60(b)?

That's interesting.

Now, imagine... I'll give a silly example to make it clear... that there's a requirement in the consent decree you have to give every child a hair cut.

And Federal law doesn't require that, but there's a provision in State law that the barbers' union got in.

All right?

Unidentified Justice: [Laughter]

Justice Breyer: So every child has to have a hair cut.

So you find the decree and you go say, judge, I want this modified.

Look what it is over here.

They give every child a hair cut.

That has nothing to do with Federal law whatsoever.

We don't want to give every child a hair cut.

Can you get the decree modified under 60(b)?

Mr. Cruz: Yes.

Justice Breyer: Yes.

All right.

Well, then if you could get it modified under 60(b), this isn't really a solution.

You don't need your solution.

You can go in under 60(b).

Mr. Cruz: And that's what the Fifth Circuit treated what we did.

So we...

Justice Breyer: All right.

So then there's no problem.

Justice Scalia: We're all in agreement.

Mr. Cruz: We will prevail either way.

Justice Breyer: So if we think you have a right to go in under 60(b), is that the end of the case?

Mr. Cruz: If... if what we did is deemed that, because...

Justice Ginsburg: Mr. Cruz...

Justice Scalia: You have to assume that it's too onerous, that everything that goes... goes a bit beyond what Federal law demands is, quote, too onerous.

Is that... is that your theory of 60(b)?

Mr. Cruz: It's not a bit beyond and... and one important caveat of 60(b) is most of this Court's 60(b) cases are in a context where the State or a State official is not a defendant.

Chief Justice Rehnquist: Well, 60(b) is basically changed circumstances or changed law, isn't it?

Mr. Cruz: It is.

And...

Justice Ginsburg: But beyond that, Rufo said that when you're dealing with a State or a municipality, that the 60(b) is more flexible than it would be if you were dealing with a private party.

Mr. Cruz: It... it did.

Rufo was easing the standards for modification, and Rufo did not address the Eleventh Amendment.

That was not an issue that was litigated, and the Court...

Justice Ginsburg: Yes, but we're talking about 60(b).

And I think the... the... you're saying, well, this is essentially the same thing.

It isn't because what you've confronted us with is you said, yes, the court had jurisdiction to enter this decree, but it had no jurisdiction to enforce it.

That was your plain position, and that's not a 60(b) position.

60(b) is the court can enforce it unless and until you show grounds for modification.

Mr. Cruz: We don't necessarily concede that the court should have entered this decree, but the point at which we litigated it is the point at which the Federal court began to exercise coercive authority of a Federal court over the State.

And at that point...

Justice Ginsburg: It didn't exercise authority till the plaintiffs came in and said, look, they're violating the decree.

They're not carrying out all their promises.

Mr. Cruz: But...

Justice Ginsburg: You could have said, yes, we are.

Mr. Cruz: But what...

Justice Ginsburg: You didn't say that.

Mr. Cruz: We did say that.

We argued extensively that we were carrying out our promises.

And that actually highlights a point.

One thing petitioners argue a great deal is the unfairness, and that was a motivating factor in this Court's Lapides decision.

But I would point out petitioners did not give anything up when they signed this agreement.

It's not as if we could sign an agreement with them and agree we're going to comply with 80 percent of Federal law.

Justice Scalia: They gave up their lawsuit, and you're... you're... and you know, packed up and went home, and you're telling them that they... that they accomplished nothing by doing that.

They got to re-initiate the whole... the whole legal process to get you to do what they want you to do.

Mr. Cruz: Justice Scalia, they accomplished a number of things.

One, the State voluntarily engaged in a number of changes as a result of that agreement.

Two...

Justice Stevens: Well, you can't say it was voluntarily.

They did it because the decree required them to do it.

That's coercive.

I mean, you say it's voluntary, but then why didn't you do it before the lawsuit started?

Mr. Cruz: The State officials endeavored to improve the program...

Justice Stevens: To comply with the decree.

Mr. Cruz: But the decree was drafted as an effort to end this... this litigation.

Justice Stevens: Yes, but it imposed obligations on the defendants which they had to perform in... to avoid being held in contempt of court.

Mr. Cruz: Your Honor, that actually opens the door to yet another reason why we do not believe this Court should hold that Ex Parte Young defendants can engage in commitments that extend far beyond Federal law because that open... opens a Pandora's box to separation of powers problems.

Justice Kennedy: It's... it's maybe far beyond.

I'm... I'm not sure that it is but it's permissible.

Rufo was concerned with requirements that were not permissible under Federal law.

And that's... that's not this case.

And you have the obligation, even under 60(b), to show that compliance is burdensome and there's changed circumstances, and you haven't shown that.

Mr. Cruz: Justice Kennedy, no body of law, Federal or State law, requires virtually everything that's in the consent decree.

The consent decree requires data collection, and there's no reference to that in Federal law.

The consent decree requires the State officials...

Justice Kennedy: These are just necessary procedures to implement the program and to make it work well.

Mr. Cruz: I mean, the consent decree...

Justice Kennedy: And they were agreed to you by your client.

Mr. Cruz: The consent decree requires that the State officials train private health care workers in cultural sensitivity.

Now, that's not required by Federal law.

That's not necessarily to ensure compliance with Federal law.

It is something quite simply...

Justice Kennedy: Well, suppose it were shown that the failure to do this caused serious flaws in the implementation of the program.

Mr. Cruz: The Federal law requires...

Justice Kennedy: The court surely has the authority... and the parties certainly have the right... to stipulate to provisions that will make the consent decree effective.

Mr. Cruz: A State official does not have the right to bargain away his or her constitutional authority or the legislature's.

If one might imagine a hypothetical.

The legislature...

Justice Kennedy: But that's... that's the issue.

Justice Scalia: Well, excuse me.

Certainly the State Attorney General has... and by the way, I would like you to say a few words about the other... the other basis and that is the waiver basis.

Certainly the State Attorney General does have the power to bargain away the State's sovereign immunity if... if you consider that bargaining it away.

Mr. Cruz: Justice Scalia...

Justice Scalia: Why... assuming everything you said is true, that this goes beyond what could have been imposed under Ex Parte Young, nonetheless, you had the State Attorney General who agreed to all of this.

It was not just these individual officers.

The State Attorney General who had power to waive sovereign immunity signed this consent decree.

Why shouldn't that be the end of the case?

Mr. Cruz: Justice Scalia, the premise of the question that the Attorney General had power to waive sovereign immunity is not correct under Texas law.

Now, it is admittedly a question of Federal law, but Federal law looks to State law.

In answer to your question about waiver, we have seven reasons why we believe the Court should not find that there was a waiver.

First, that this was waived below.

Secondly, there's no clear and unambiguous waiver, as this Court's decisions require.

Thirdly, there has been no waiver by the legislature of immunity from liability in State court, a critical predicate for Lapides, and in fact, the United States in Lapides argued that all the Attorney General could waive was forum immunity, not immunity from liability... immunity from suit at all.

Justice Ginsburg: May I stop you at that point?

Could a State then simply say... every State say our Attorney General has no authority to waive our sovereign immunity, and then you would have the highest legal officer appearing in Federal court on behalf of the State and representations that that person makes count for nothing?

Is that...

Mr. Cruz: Justice Ginsburg, your... your hypothetical is in fact the law in the Texas, in that the legislature has explicitly said the Attorney General may not waive sovereign immunity in Government Code 402.004.

Justice Ginsburg: Then what was the attorney... then the Attorney General was really deceiving the Federal court when the Attorney General said, this is a consent decree that we worked out, we urge the court to adopt it.

Now, if the Attorney General had no authority to enter that consent decree, he should have told that to the Federal court, but there was no... no such representation.

Mr. Cruz: Justice Ginsburg, the Attorney General didn't deceive the court because the Attorney General never represented that this was a waiver of sovereign immunity.

Those words are not found in the consent decree.

The consent decree says the defendants' defenses are all preserved.

This was an effort, unlike all of the voluntary invocation of jurisdiction cases, where the State makes an affirmative decision, we want to be in Federal court.

In this case the State was hailed involuntarily...

Justice Ginsburg: But nothing required the State to agree to this consent decree.

I know you distinguished the case... Lapides was... you said that they... the State made the move to get the case into the Federal court.

But here, yes, the State is a defendant.

Nothing in the world compelled it to enter the consent decree, to urge the court to accept its consent.

So when a State Attorney General says to the Federal judge, Federal judge, we think this is a sound decree, we want you to enter it, that's hardly being hauled before the court.

That's a voluntary decision.

Mr. Cruz: The State acted in an attempt to avoid a long, protracted litigation.

We were hailed involuntarily before the Federal court.

Chief Justice Rehnquist: In Gunter, the State was also hailed involuntarily before the Federal court.

Mr. Cruz: Yes, Mr. Chief Justice, but Gunter was an adjudication on the merits and found an ongoing violation of Federal law and then enjoined that ongoing violation.

Had that happened, we wouldn't have a dispute.

We don't...

Chief Justice Rehnquist: Well, you prevented it from happening by entering into the consent decree.

Mr. Cruz: But that could have happened at the stage of enforcement.

Before a Federal court orders a State to do something, this Court has said that Ex Parte Young is a fiction, that... that the courts will pretend the State official, who is not really a State official, is acting ultra vires for the limited purpose of vindicating the Supremacy Clause.

That limited purpose is not served when no court has ever found a violation of Federal law, and when there is in fact not a violation of Federal law.

The reasons petitioners are litigating today is because if they had to demonstrate a violation of Federal law, they could not do so.

So what they would, instead, like is for the baseline to be the consent decree.

Justice Stevens: Are you suggesting they filed a lawsuit they didn't think they could win?

Mr. Cruz: They filed a lawsuit that was filed before Judge William Wayne Justice...

Justice Stevens: It was filed in good faith alleging violations of Federal law, was it not?

Mr. Cruz: It was... it... we presume it was filed in good faith and it alleged violations of Federal law.

We don't believe they could have demonstrated then and we... we absolutely don't believe they can demonstrate now any violations of Federal law.

Both the district court and...

Justice O'Connor: Then why enter a consent decree?

It just doesn't make sense.

I assume that whatever counsel was representing the State at that time thought there was sufficient grounds to justify entering into a consent decree, unless you want to take the position that the attorney was acting totally ultra vires.

Mr. Cruz: It was an effort to end the litigation.

It was an effort that ultimately failed.

I mean, there... there are two additional key reasons why there's not waiver.

Justice Kennedy: No.

Justice Souter: But you're saying then that the consent decree is basically a continuance.

Mr. Cruz: It is a voluntary agreement and it allows... it agrees that the district court is available, it's familiar with the law and facts and can... the case can be brought back to it if there's ongoing dispute.

Justice Souter: Right.

We'll see... a consent decree means we'll see you later.

Mr. Cruz: Or we'll agree to this and that will resolve the matter.

I will point out if signing a consent decree is a waiver of Eleventh Amendment immunity or sovereign immunity, then plaintiffs' argument proves too much.

It means every consent decree is utterly immune from Ex Parte Young.

It means once a consent decree is there, the requirements of Federal law don't matter.

Justice Scalia: Only with the State Attorney General.

Unidentified Justice: [Laughter]

Justice Scalia: You haven't made another argument that... that I thought you... you would make, and that is not applicable to the waiver argument, which requires that the State Attorney General or someone authorized to act for the State is there.

What... what troubles me about... about the non-waiver argument made by the petitioner is that some of these consent decrees are imposed upon... upon absolutely willing State officers who want to be thrown into the briar patch.

A suit is brought against a... a secretary of health and human services in the State who absolutely wants to do these wonderful things for pediatric care that are not required by Federal law.

And if the State Attorney General were not in the situation, I am very reluctant to think that this official can go in and say, yes, require me to do these wonderful things that State law does not require, that Federal law does not require, but that I would like to do, signs the consent decree, and then we're stuck.

Mr. Cruz: That...

Justice Scalia: But that's not this situation.

Your Attorney General appeared and said, this is okay as far as we're concerned.

Mr. Cruz: But... but that is a fundamental problem with these cases.

It was a prior Attorney General, a prior head of the health department, and those prior officers under petitioners' theory had bargained away the legislature's authority.

It's clear the legislature couldn't pass a statute that said, we're going to allow the Federal District Court for the Eastern District of Texas to run our Medicaid program.

That would be a fundamental violation of federalism and separation of powers.

Nor could the Attorney General sign a contract to do that.

Therefore, they should not be able to sign a consent decree to do that unless it is necessitated by an ongoing violation of Federal law.

It is only the Supremacy Clause that justifies that.

In addition, this course's voluntary... this Court's voluntary invocation of Federal jurisdiction cases have, by and large, not been Ex Parte Young cases.

In Lapides, in Gardner, in Clark, they were suits against the State.

They were not Ex Parte Young cases, and this Court would be breaking new ground by saying an Ex Parte Young defendant who, under the legal fiction, is not the State, is simultaneously the State for purpose of being able to waive sovereign immunity by litigating.

And as was pointed out in the earlier colloquy, the State was a defendant, raised the Eleventh Amendment, was dismissed on Eleventh Amendment sovereign immunity.

And to say now that ambiguous and conflicting provisions of the consent decree, signed by the State officials as Ex Parte Young defendants, can waive the sovereign immunity is to extend the Ex Parte Young fiction beyond...

Chief Justice Rehnquist: Well, surely they had attorneys, State attorneys, representing them, did they not?

Mr. Cruz: They... they did, Mr. Chief Justice.

But those attorneys, just like the State officials, are temporary officeholders, and temporary officeholders are in effect, as this Court recognized in Alden v. Maine and also in Justice Thomas' and Justice O'Connor's opinions in Missouri v. Jenkins, there are serious separation of powers issues that are raised when one official bargains away the authority of another.

Rebuttal of Susan F. Zinn

Chief Justice Rehnquist: Thank you, Mr. Cruz.

Ms. Zinn, you have 4 minutes remaining.

Mr. Zinn: Some of the arguments made are not tethered in... tethered or tied to the record in this case.

The district court, before enforcing the consent decree, found violations of... ongoing violations of Federal law.

That finding is found at pages... at the bottom of page 272 and 273 in the appendix to the cert petition.

And it... it refers and relies on the Court's earlier extensive findings of fact.

Second, there has been no contested motion to modify filed in this case.

There was no contested motion to modify pending before the district court or pending before the court of appeals, and this is an important matter for this Court to consider.

Of course, a motion to modify would allow State officials to present legitimate concerns, if they have any, concerning the consent decree to the district court so that the district... with them having the burden of proof, so that they could have their best shot to show the district court what's wrong with the consent decree under this Court's decision in Rufo.

That... that burden of proof gives the district court a full record to base its decision on about whether or not to modify the decree and it also creates an adequate record for appellate review of those questions, which is not present at the moment.

Indeed...

Justice Scalia: Would a change in administrations be a change of circumstances that... that justifies 60(b) being invoked?

Mr. Zinn: No.

Indeed...

Justice Breyer: Is there then a way to deal with the problem that Justice Scalia raised, which is a serious problem I think?

Mr. Zinn: If a change in... in administrations results in...

Justice Breyer: Well, what they do is they go examine this decree and there all kinds of things in the decree that may be very nice and really helpful to people, but actually the legislature would never pass them, and they have nothing to do with Federal law.

Now, what he's looking for is a remedy for that situation.

I'm not saying your decree has that problem.

Mr. Zinn: Yes.

Justice Breyer: But it's a known problem, and what's your solution to it?

Mr. Zinn: As has been pointed out, Rufo does create a more flexible standard for modification when consent decrees are involved in institutional reform litigation of this type.

That flexibility, though, does not sink down to the level of mere inconvenience.

So just because it becomes inconvenient for a successor administration to comply with the consent decree is not justification for modification.

But if the... the new State officials can bring legitimate concerns to the district court's attention, modification may be appropriate.

Unless there are further questions, there's no further reply.

Chief Justice Rehnquist: Thank you, Ms. Zinn.

The case is submitted.

Attribution:

The Oyez Project

Featured:

Nevada Dept. of Human Resources v. Hibbs - Oral Argument

Fri, 09 Jan 2009 14:50:41 +0000

Case:

Nevada Dept. of Human Resources v. Hibbs

Media File:

01-1368_20030115-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Paul G. Taggart

Chief Justice Rehnquist: We'll hear argument next in Number 01-1368, the Nevada Department of Human Resources versus William Hibbs.

Mr. Taggart.

Mr. Taggart: Mr. Chief Justice, and may it please the Court:

There are three reasons Congress did not validly abrogate State immunity when it adopted the Family Medical Leave Act's family leave provision.

First, the FMLA is everyday economic legislation, a national labor standard, not antidiscrimination legislation, second, Congress was not responding to a discernible pattern of unconstitutional behavior, and third, even if such a pattern were discernible, the 12-week family leave mandate enforced by abrogating State immunity is not a proportional and congruent response.

The Family Medical Leave Act is no different than the minimum wage and other national labor standards.

It is, in its operation and effect, it is simply Commerce Clause legislation.

Chief Justice Rehnquist: Well, but now in the statute, the findings, or the beginning, they refer to the Equal... the Equal Protection Clause.

They say it's consistent with the Equal Protection Clause of the Fourteenth Amendment, don't they?

Mr. Taggart: Yes, they do, but they do not... Congress did not invoke Section 5 of the Fourteenth Amendment, as it did in the ADA and the ADEA statutes.

It told us exactly why, in the House and Senate reports, it was mentioning the Fourteenth Amendment in the text of the statute.

Justice O'Connor: Well, as applied to private employers, I suppose Congress had to rely on Commerce Clause powers, but as applied to States, there is specific reference in the statute, of course, to section 5... to equal protection.

Mr. Taggart: Yes, there is specific reference to equal protection--

Justice O'Connor: Yes, right.

Mr. Taggart: --but Congress told us why they mentioned equal protection in the House and the Senate report, where Congress stated that if--

Justice Scalia: Why do you need the House and Senate report?

I mean, the very text of the statute doesn't say, in order to assure equal protection of the laws in the States.

That's not what it says.

It says that what we're doing, what we're requiring, the leave that we're requiring, we are requiring in a manner that, consistent with the Equal Protection Clause, minimizes the protection, the potential for employment discrimination.

I read that as saying what we're doing here is being done with an eye to being sure that it's in conformance with the Equal Protection Clause.

That's quite different from saying that we're doing it in order to enforce the Equal Protection Clause, which is being violated by the States.

Mr. Taggart: --We agree with that position, Justice Scalia.

Justice Ginsburg: But Mr. Taggart, we--

Justice Scalia: --But the statement in the text goes to the manner, goes to the manner, not to the purpose at all.

Justice Ginsburg: The first rule of statutory construction is to read on, and if you read on with me--

Unknown Speaker: [Laughter]

Justice Ginsburg: --you will find it said, to promote the role of equal employment opportunity for women and men pursuant to such clause, to promote the goal of equal opportunity for women and men.

Justice O'Connor: Throughout your opening brief, you never referred to that statute.

You told us there was only the (4), the one that Justice Scalia referred to, and it wasn't until your reply brief that you even acknowledged that Congress has said, we're doing this to promote the goal of equal opportunity for men and women.

Justice Ginsburg: Why didn't you mention (5) in your opening brief?

Mr. Taggart: Well, why we didn't mention (5), I... I apologize if we did not... if we did not mention it, but the... the Senate report and the House report describe exactly why Congress was talking about equal protection.

Justice Ginsburg: Well, one would look to the statute before one looks to the House or the Senate report.

Mr. Taggart: Yes, that is correct, but the operation of the statute clearly shows that it is just everyday Commerce Clause legislation.

Congress was deeply concerned that the Family Medical Leave Act itself would be challenged on equal protection grounds, and that's why it said it was promoting the goal of equal employment opportunity.

Everything else about the statute, the way it operates, the economic benefit that it provides, the fact that it doesn't prohibit discrimination at all, show that this is nothing different from the minimum wage, and that... that is what... that is what this... this was adopted in the tradition of.

Justice Scalia: Mr. Taggart, I... I thought the reason you didn't refer to the reference to equal opportunity for men and women is that that is not a reference to the Equal Protection Clause.

Justice Ginsburg: Pursuant to such clause--

Justice Scalia: --People... people... people... individuals could fail to provide equal... equal opportunity for men and women without violating the Equal Protection Clause.

Mr. Taggart: That's true, but the--

Justice O'Connor: The... the statute says, pursuant to the Equal Protection Clause.

Mr. Taggart: --Well, it does say that, but in our view, it is more important to look at the operation and the text of the amendment, and how... how the... or of the act, and how the act works.

Justice Breyer: Why?

If you're looking at the text, then just a few lines above, in the text, where it talks about findings, it says that, due to the nature of the roles of men and women, primary responsibility for family care-taking often falls on women, and then it says employment standards that apply to just one gender have serious potential for encouraging employers to discriminate against people of that gender.

So what I take that to mean is that, without this, State employers as well as others tend to say to the woman, You go take care of your sick mother, and because employers know that, they won't hire women.

That's what it says in (5) and (6), and I would have thought that sounded like equal protection of the laws, as if this statute is designed to help remove one of the major reasons why employers discriminate against women.

That's what (5) and (6) says, and then the... 10 lines down it says, pursuant to the Fourteenth Amendment.

Mr. Taggart: Well, Justice Breyer, the statement here, in our view, indicates why Congress adopted a gender-neutral statute.

If it adopted a gender-specific statute, the statute itself would have been subject to challenge under the Equal Protection Clause.

Our... our concern here is that any everyday economic legislation that may have a disparate benefit to one suspect classification or another will all of a sudden be... have the power to abrogate Eleventh Amendment immunity, and then State immunity will be subject to abrogation at... at any expense where Congress deems that Commerce Clause legislation is appropriate.

Congress should not be allowed to do indirectly what it's prohibited from doing directly.

Justice Souter: Mr. Taggart, would you comment on this argument, which I think is really an elaboration on the findings in the purpose statement that Justice Breyer was referring to.

I think you can distill those statements down to something like this.

We know for a fact historically that, whenever burdens of family responsibility are allocated, they are allocated to the woman, not to the man.

If we do not have an employment standard that expressly says you have got to treat them exactly alike, the women will always get the short end, and that will be reflected in hiring decisions, among others.

Secondly, in order to make this determination a practical one, we can't simply leave it that whatever you do for men you should do for women, or vice versa.

Justice Stevens: We've got to put some kind of a threshold there that will mean something, and so we've come up with a particular period, a particular number of weeks.

Justice Souter: That's the only way to make this work.

I think that is the argument that is based, in effect, on these two sections.

That doesn't sound to me like simply an end run, a phony Commerce Clause argument.

Would you comment on that argument?

Mr. Taggart: Well, even if that were true, even if that effect occurred from the statute, the failure, the utter failure of the statute to satisfy this Court's City of Boerne test shows that it is purely economic legislation.

There were absolutely no findings by Congress regarding State conduct, or whether State conduct was unconstitutional, and it's difficult to discern from the record before this Court or--

Justice Souter: Well, given the fact that we have accepted in prior cases the pervasiveness of the phenomenon that seems to be quite clearly reflected in the findings and purpose, is that necessary here to say, well, yeah, it... we've already said, the Supreme Court has already accepted its pervasiveness, but we've got to go a step further and say, well, yeah, that pervasiveness even goes to States.

Isn't there a point at which the point has been made?

Mr. Taggart: --Well, first of all, if that were true, then any law that Congress passes that has any arguable fact on discrimination based on gender would be sufficient for satisfying an abrogation of State immunity.

In 1993--

Justice O'Connor: Well, we can't... what about the Fitzpatrick v. Bitzer decision, where the Court unanimously found Title VII was a valid abrogation of the Eleventh Amendment immunity, and there was no inquiry into the history of gender discrimination, it was just accepted?

Do you think that that case would stand up under your analysis?

Mr. Taggart: --Yes, it would.

There... or we would take the position that it would.

There is--

Justice O'Connor: Because this is rather similar.

Mr. Taggart: --Well, there is no requirement, and we are not urging the Court to adopt a requirement that Congress make findings.

Congress simply helps the Court when it makes findings about what it is... whether there is unconstitutional State behavior that would justify a 12-week family leave benefit that's abrogated by State sovereign immunity.

But Title VII is closely hewed to this Court's section 1 jurisprudence, and there's every reason to believe that Title VII would stand up to the City of Boerne test.

So the difference with this statute is that there is absolutely--

Justice Ginsburg: Mr. Taggart, I thought that part of your argument was, if the discrimination doesn't exist anymore in the State, even if it did at one time, then the provision would have to sunset, and as far as Title VII is concerned, many States, the vast majority of States have their own Title VII laws, so at this point in time I guess, under your reasoning, Fitzpatrick and Bitzer would have to go.

Mr. Taggart: --Well, we are not arguing that position and, in fact, in our view Title VII is so closely hewed to this Court's section (1) jurisprudence that it... it... there's every reason to believe that it would satisfy this Court's test.

In... in... in this case, though, the question is, in 1993 was there a pattern and practice of State behavior that would justify a 12-week mandatory family leave benefit for all State employees that's... that's enforced through abrogating State immunity, and the standard--

Justice Ginsburg: What was the... in the title of Title VII what was the pattern and practice that justified that result, because when the original Title VII was passed this Court had never declared any law that differentiated on the basis of gender unconstitutional, and when it was extended to public employees... was it in '72 +/?

this Court had just begun to address the issue.

Mr. Taggart: --Yes, that--

Justice Ginsburg: And yet the Court said Congress could do that in '72 with no special record of any kind.

The record, to the extent it existed, was made for race, not sex.

Mr. Taggart: --Well, we're not challenging Title VII in this case.

We're challenging that in 1993, when the--

Justice Scalia: But she's asking you to distinguish Title VII from this.

We know you're not challenging it.

Mr. Taggart: --Well, in our view--

Justice Souter: What about the fact that Title VII goes to discrimination on the basis of sex in general, and there was no doubt that States have engaged in that and were engaging in it at the time.

Justice Scalia: You could have said it was... it was general knowledge.

But the statute we're construing here doesn't go to sex discrimination in general, it goes to a very particular type of sex discrimination, and that is in the granting of leave, and on that, at least I can't say as a matter of general knowledge that the States were in violation of provisions of leave.

I've no idea what the state... what the state was.

Certainly you... you need evidence to show that they were violating that particular aspect of... of... of equal protection.

Mr. Taggart: --Well, in order to show a pattern and practice in 1993 it's this Court's section (1) jurisprudence on violations of the Equal Protection Clause that governs, and Washington v. Davis, incorporated into the gender cases through State Administrators v. Feeney, is a test which requires purposeful and invidious discrimination.

There's no showing that there was a pattern and practice of State managers in 1993 of using a gender stereotype when they granted leave.

Justice Breyer: Whoa, whoa, whoa, wait, because if you accept, I take it, you accept the proposition that Congress has sufficiently shown, as far as anyone need do, that State employers discriminated in their hiring against women, the gener... you accept that, is that right?

That's your... your... your... your, for... because if that's not so, I guess goodbye to Title VII, a whole bunch of things, but is... do you accept that?

Mr. Taggart: Well, Title VII, and the circuits have said this already, is that Title VII is so closely hewed to this Court's section (1)--

Justice Breyer: No, I'm not asking you to distinguish Title VII.

I'm asking you if, for purposes of this case, you accept the proposition that it is adequately shown that State employers, like a lot of other employers, did discriminate against women in hiring people, in general.

Mr. Taggart: --If--

Justice Breyer: I'd like a yes answer or a no answer, if I could.

Mr. Taggart: --Well, a qualified yes if you're talking about 1972, when--

Justice Breyer: Okay, so at the time of this statute?

Mr. Taggart: --Not at the time of this statute.

Justice Breyer: Oh, okay.

You do not accept the proposition that it is adequately shown that State employers discriminated against women when they passed this law?

Mr. Taggart: No, and even if there was a--

Justice Breyer: Okay.

No, then, I don't see the distinction with Title VII.

It's goodbye if I accept that argument, I think.

It's just that it was earlier?

Mr. Taggart: --No, it's that title... it's unclear whether Title VII even prohibits things that this Court's section (1) jurisprudence wouldn't also prohibit.

Title VII basically codifies what this Court said in Washington v. Davis.

It allows a give-and-take in the courtroom of the evidence to... to flesh out the totality of facts that surround an employment activity, and at the end of the day in the Title VII lawsuit an inference can be made of whether purposeful discrimination actually occurred.

It allows a defense not based upon heightened scrutiny or strict scrutiny.

It allows just a simple defense by the employer.

Unlike the Family Medical Leave Act, which just takes away any defense at all for States to defend the policies that they have, that it doesn't even elevate State policies to a heightened scrutiny standard, but in 1993 State policies were gender neutral, and under this Court's section (1) jurisprudence those policies should be subject to a rational basis review.

But instead, the FMLA just makes all of those policies unlawful.

Any policy that doesn't have 12 weeks of leave is simply unlawful.

It doesn't give the State the ability to come in and prove that that policy was... was applied--

Justice Kennedy: Suppose you have two statutes, one is a congressional statute that says, all States must have employment and pay policies that do not differentiate on the basis of gender, and the second is the FMLA.

It seems to me that the FMLA is much more limited.

It's just 12 weeks, the damages are capped, it's simple to operate--

Mr. Taggart: --But--

Justice Kennedy: --I would think that that is much more proportional and congruent than the other statute that I described.

Mr. Taggart: --Well, the... this statute, in our... our position is is not proportionally concurrent, because first, there's no pattern of State behavior that would justify a 12-week leave benefit.

But to completely make unlawful any act, any State policy that's less than 12 weeks would require a substantial showing that States were engaged in discrimination in the employment, in employment practices.

Justice Breyer: Why?

Why?

Because if you imagined, and you won't concede this, but I think, take it as a hypothetical, then, if you imagined that State employers had been shown to discriminate against women in hiring, wouldn't Congress have quite a lot of leeway in choosing the remedy for that discrimination, and wouldn't this statute be part of the remedy?

Mr. Taggart: Absolutely.

If your hypothetical--

Justice Breyer: So in other words, if it's absolutely, then the answer as far as you see it in this case is whether there has been an adequate showing that at the time of this statute State employers discriminated against women in hiring, and if the answer to that question in your view is, there was an adequate showing, this is an appropriate remedy, but if the answer in your view is, it wasn't an adequate showing, then, of course, you would win.

That's how you're basically seeing the case.

Mr. Taggart: --Well, I don't want to agree with you 100 percent, but... but the--

[Laughter]

Justice Scalia: I would think your... your brief... your brief agreed with him zero percent.

Mr. Taggart: Well--

[Laughter]

Justice Scalia: Your... your--

Mr. Taggart: We didn't--

Justice Scalia: --Under your brief, the answer is quite clearly no, you don't think it's proportionate even if there had been a violation shown.

Isn't that what your brief said?

Mr. Taggart: --Well, the hypothetical was, if there was enough of a showing, and I think that's the question.

We argue there was no showing, which would justify no remedy, but even if there was a showing, the remedy has to be proportional, and this 12-week leave benefit just goes far out of proportion of any discernible pattern of conduct by States which would justify it.

Justice Ginsburg: Mr. Taggart, there have been scores of Title VII cases where there's a nice, neutral standard, and then there's a decision maker, and the decision maker is exercising discretion under these general standards.

And time after the time, the decision maker is duplicating himself, whether race, sex, and the people who don't look like the decision maker say, gee, we suspect discrimination.

There have been countless Title VII suits that have prevailed on that, that the standards are nice and neutral, but the discretion whether to hire is made by someone who is coming up with results that exclude these people.

Now, do you think that State employers, that the people who do hiring and promotions for States are so nonbiased, so unprejudiced that that doesn't affect the decision makers on the State level, as opposed to the municipal level, and in private employment?

Mr. Taggart: Our position is that the presumption has to be that States act in a constitutional manner, and I'm not going to stand here before the Court and say that States are perfect, but there's certainly no pattern which would justify a 12-week mandatory family leave benefit enforced through the abrogation of State immunity.

This... the FMLA is simply not based upon any... any pattern of State conduct.

The Congress knew in 1993 that 30 States had laws just like the Family Medical Leave Act.

Congress wasn't thinking about whether States were violating law and whether States needed to be corrected.

Congress was trying to supplement what States were already doing with the leave benefit.

Justice Ginsburg: In Title VII, too, the lead was taken by the States.

Several States had human rights laws long before there was any Federal law.

At least as to those States Title VII should not have been valid legislation, should it?

Mr. Taggart: Well--

Justice Ginsburg: Because there was no sign that they were not at least as good as the Federal Government.

Mr. Taggart: --Well, Title VII is, in our view, a... a... clearly, a law that's clearly antidiscriminatory.

It doesn't... it isn't... wasn't adopted for Commerce Clause purposes, and in our view in this... the Family Medical Leave Act is just a round peg being forced into a square hole.

It's not... wasn't adopted with the operation... with the idea of acting like antidiscrimination legislation.

It, in fact, would completely allow for discrimination.

It would... and that wouldn't be prohibited by the law at all.

Justice Souter: Okay, if they had passed this statute without the 12 weeks in it, and the statute had simply said, on family leave decisions, the decisions have got to be the same, the standard for making them has got to be the same, whether the employer, employee is a man or a woman, would that be constitutional?

Mr. Taggart: Well, that--

Justice Souter: Under section (5)?

Mr. Taggart: --Well, certainly that would sound more like an antidiscrimination law that would require leave, if it's granted--

Justice Souter: Okay.

Mr. Taggart: --to be granted on a gender neutral basis--

Justice Souter: Now, the difference between that case and this... I'm sorry.

I didn't mean to interrupt you.

Mr. Taggart: --I'm sorry, Your Honor.

Justice Souter: I was trying to get in another question before Justice Scalia did.

Unknown Speaker: [Laughter]

Justice Souter: The difference between the case I just put to you and the case that we've got here is 12 weeks, and I suggested that one reason for the 12 weeks is a decision on the part of Congress that if we don't put some period of time, some threshold period of time, our nondiscrimination standard isn't going to be worth anything.

For example, just outside this case, the States could say, okay, we're going to give a 1-week maternity leave, men or women.

Obviously, that isn't going to accomplish anything.

So Congress says, we've got to have some kind of a threshold in order to make this requirement of neutrality really work. Why is that not a reasonable way to get to the point which I think we both agree would be a perfectly lawful exercise of power under section--

Justice Scalia: (5)?

Mr. Taggart: Well, first on the latter part, a prohibition or a requirement for gender-neutral leave would... for... if leave is allowed, it must be allowed on a gender-neutral basis, I would still argue that that would be, that would require some predicate of a pattern of unconstitutional behavior, but--

Justice Souter: Okay.

We'll take that as a given.

You don't concede that.

Mr. Taggart: --Okay, but on the 12 weeks point, this Court would have to assume, without any indication from Congress, that that's why it used 12 weeks, because that is not why it used 12 weeks.

12 weeks--

Justice Scalia: How many States are covered by the act?

Mr. Taggart: --Well, at the time the act was adopted--

Justice Scalia: Yes.

Mr. Taggart: --30 States had family leave laws.

Justice Scalia: How many are covered by the act?

To how many States does the act--

Mr. Taggart: Every State is covered by the act.

Justice Scalia: --50 of them.

How many private employers are covered by the act?

Mr. Taggart: Every private employer.

Justice Scalia: Yeah, like how many do you think that is, hundreds of thousands?

Mr. Taggart: Yes.

Yes, Your Honor.

Justice Scalia: And the 6 weeks was adopted with the 50 States in mind, is the argument that's being propounded.

It's clear that the 6 weeks was designed for the 50 States, never mind the hundreds of thousands of private employers.

Does that seem plausible?

Mr. Taggart: No, and it... first it's--

Justice Souter: Doesn't it seem plausible, however, that the period of time was designed in view of the pervasive history of discrimination in and out of Government, and that it is just as applicable when it is applied to the Government, just as reasonable or unreasonable, however you come out, as it is when it's applied to private industry?

Isn't that a fair argument?

Mr. Taggart: --No, because it's not so simple as to draw the conclusions about the society in general directly to States and impute States with unconstitutional behavior without presuming first that States act in a constitutional way.

Unknown Speaker: No, I recognize that you're not conceding the... the... the point that a predicate for applying it to the States, even a... a... a non-6-weeks antidiscrimination has been shown, but if we assume that point is past, then is the argument, is the appropriateness of the means somehow categorically different for States from the appropriate... appropriateness of the means with respect to private employment?

Mr. Taggart: Well, it's our view that the two questions can't be split, that... that the State conduct is so critical that... that it... the answer cannot be derived from saying that if... if there's this conduct in general, then 12 weeks fits both State and non-State actors.

The... the 12-week benefit was not designed at all by Congress to target unconstitutional conduct.

It was designed to give children 12 weeks of child development time with their parents when they're born.

Justice Scalia: Insofar as the statute applied to private employers, could it possibly have been directed at unconstitutional conduct?

Mr. Taggart: It may be possible, but... but any--

Justice Stevens: I presume--

--But the real question is whether it's directed at discriminatory.

At discriminatory conduct.

If it's private discrimination, it's not constitutional; if it's State discrimination, it is a constitutional question.

Isn't the question whether it's directed at discriminatory conduct?

Isn't that the basic question?

Mr. Taggart: --Well--

Justice Stevens: Or do you concede it is directed at discriminatory conduct.

Mr. Taggart: --No, we do not concede that it's directed at discriminatory conduct.

Justice Stevens: But if it were directed at discrimination, discriminatory conduct, that would embrace both the States and the private employers, wouldn't it?

Mr. Taggart: Well, that... we do not concede that point, because Congress did not have any predicate on which to base the direction of this onto the States, and I'd like to reserve the remainder of my time for rebuttal, please.

Argument of Cornelia T. L. Pillard

Chief Justice Rehnquist: Very well, Mr. Taggart.

Ms. Pillard.

Mr. Pillard: Thank you, Mr. Chief Justice, and may it please the Court:

The Family Medical Leave Act is an appropriate response to enduring problems of State sex discrimination bias against women in hiring and promotion because employers assume that women are more likely than men to leave their jobs to go take care of their family members, and bias against men in the dispensing of family leave.

Congress gathered ample recent evidence of these mutually reinforcing problems, and Congress also built on a known foundation of State laws and decisions fostering different roles for men and women in work and family.

Those different roles and beliefs about them persist.

Offering a threshold amount of leave to men and women alike is responsive to the problems.

The act has successfully encouraged more men to take the leave, and in narrowing the gap between men's and women's leave rates, the act erodes the very basis of employers' bias against women.

If you will, it makes men and women equally unattractive.

[Laughter]

The act also responds to discrimination against men in the dispensing of leave.

A bare prohibition against discrimination doesn't do that and, in fact, the bare prohibition against discrimination in the dispensing of leave had been in place.

That's Title VII, and that, for the generation during which Title VII applied to the States, that had not succeeded in eradicating sex-based dispensing of leave, and in the real world--

Chief Justice Rehnquist: Sex-based dispensing of leave by the States?

Mr. Pillard: --By the States.

Unknown Speaker: Well, what statistics are there that support that statement?

Mr. Pillard: Mr. Chief Justice, I'd like to highlight four aspects of the evidence of sex-based discrimination in leave specifically about the States.

First, Congress learned of the pattern of State granting leave through the Bureau of Labor Statistics' figures.

In 1987, 50 percent of women in State and local government, as compared to 30 percent of men in State and local government, were offered parenting leave.

Yale also did a 50-State survey to which--

Justice Scalia: Excuse me, what--

Chief Justice Rehnquist: --You know, I presume to get parenting leave you have to be a parent, and it doesn't seem to me that that... that is a terribly instructive statistic unless it... it's shown that equal numbers were parents, or equal numbers applied.

Mr. Pillard: --The statute--

Justice Scalia: Could you tell me what, before we go on with the discussion, what you mean by, were offered parenting leave?

Mr. Pillard: --Parenting leave was available to them in their State--

Justice Scalia: Was available, whether they took it or not?

Mr. Pillard: --Whether they took it or not.

This is not rates of people taking.

This is rates of people who had it available.

Justice Scalia: Who had the opportunity to take it?

Mr. Pillard: Should they choose, yes, and the Bureau of Labor Statistics is very clear on that.

Justice Scalia: How... how could that be?

The States' laws were written in such a way that--

Mr. Pillard: The States' laws and the States' policies, and this is confirmed by other pieces of evidence.

Yale did a 50-State survey to which 36 States responded, and 19 of those States themselves said they offered parenting leave to women and not to men under their policies.

Chief Justice Rehnquist: --Well, that's 19, 19 out of 50 States.

Justice Scalia: Excuse me, when you say parenting--

Chief Justice Rehnquist: --Let her respond to my question.

Unknown Speaker: [Laughter]

Mr. Pillard: That's 19 out of the 36 responded that themselves admitted that they... they had these policies.

The president of the labor union that represents State employees said, the vast majority of our contracts really cover maternity leave.

They're not--

Justice Scalia: Exactly, and that explains the discrepancy.

I'm trying to figure out... what you're saying is that some States provided for maternity leave, but did not provide any leave for the father, but that's quite a different thing.

I mean, does one have to think that parenting leave, which is the ability to go home and take care of a child, is the same as allowing a woman who's just gone through childbirth some leave to recuperate from the childbirth?

I don't think that proves anything at all.

It just proves that some States had a policy of maternity leave, and presumably if, you know, if one of their male employees gave birth they'd give him maternity leave, too.

Unknown Speaker: [Laughter]

Mr. Pillard: --Justice Scalia, let me clarify, each of these studies and all the figures that I'm citing are not talking about pregnancy disability leave.

We're talking about maternity leave over and above pregnancy disability leave, so we're talking about whether it's unconstitutional for a State to assume that women and not men can appropriately go home and take--

Justice Breyer: I thought we were talking about the medical leave act here.

We're not talking about parenting, are we?

Mr. Pillard: --We're talking about both.

Part of the medical leave provision allows parents to take care of their seriously ill children as well as their spouses or parents, and Congress saw these as part and parcel of the same phenomenon.

Justice Scalia: Did any State have parenting leave laws which say, we just want you to have time to take care of your family, which applied only to men... only to women and not to men?

Mr. Pillard: Yes, all--

Justice Scalia: I know plenty of States had maternity leave.

I consider that a different category entirely.

Were there any States that had parenting leave, time to take care of your family, that applied only to women and not to men?

Mr. Pillard: --Justice Scalia, each of these States, when they called it maternity leave, the important distinction is that it encompassed but was not restricted to a period of pregnancy disability.

We're talking about, for example, in our lodging appendix at page 31, the Rhode Island agreement that applied from 1992 to 1995.

In provision 13.7, maternity leave is available for up to a year, without regard to pregnancy disability.

Another example at page 47, 48 of our lodging, maternity leaves not to exceed 6 months, but may be extended, and paternity leaves are available for 3 months, so someone... a woman can take a maternity leave up to a year without a showing of maternity disability, and a man can take 3 months.

And on page 40 of the lodging, again the Pennsylvania agreement says that women can take a period of 6 months, and it may be extended for 6 months, no provision for a man who is so inclined and who wishes to do so, to go take care of his infant child, and I think these stereotypes are very alive and well today, and the act was--

Justice Ginsburg: Kind of the successor of the man going down with his babe in arms to ask for an excuse from jury duty and they said, would tell him no, you don't get any excuse, but you give excuses to women.

Yes, because women take care of children.

I take care of children.

That's the same thing.

Mr. Pillard: --It's precisely these assumptions that have caused State employers and other employers to discriminate against women in hiring, promotion, and retention, and against men in the dispensing of leave, and these are really two sides of the same coin.

And the act is working.

In the 5 years that were studied from 1995 to 2000, there was a jump from approximately 14 percent to 21 percent of the percentage of male--

Chief Justice Rehnquist: Would the act be any less valid if we were to conclude it weren't working?

Mr. Pillard: --No, but I think the point is that there's an ongoing problem, and that Congress was correct in discerning that this was really at the core of the problem.

Justice Scalia: And why couldn't Congress have solved that problem adequately by simply prescribing that no State shall discriminate in... in the... in the giving of... of family leave?

Mr. Pillard: Justice Scalia, Congress already--

Justice Scalia: No maternity leave, kind of no State can have maternity leave as a separate category, and all family care leave must be offered equally to men and women.

Why... why wouldn't that have been a proportionate response to... to the defect that they had found?

Why... why did the Federal Government, in order to solve the problem, have to impose upon the States 12 weeks, just pulled out of the air, 12 weeks, this is the solution to this constitutional problem?

Mr. Pillard: --Justice Scalia, that prohibition was already in place from 1972, and the problem also is that a bare prohibition against discrimination cannot respond to discrimination against men in the dispensing of leave, because in the real world a facially neutral policy without a threshold leave entitlement really equates to a discretionary practice of dispensing leave tainted by stereotypes about who should need it.

Unknown Speaker: I don't understand what you said.

Mr. Pillard: Even if employers do not affirmatively provide for any leave, they equally have a no-leave policy for men and women that is formally equal.

In the real world, some workers ask for leave and some do get family leave, but by leaving it up to supervisor discretion we open the door--

Justice Scalia: But there's--

Mr. Pillard: --to discrimination.

Justice Scalia: --But where... is it supervisor discretion?

You... the supervisor cannot discriminate on the basis of sex.

I think what you're saying is that without this 12-week period, many men just wouldn't take the leave.

That's probably right, but then many men wouldn't necessarily take the 12-week leave either, if it's available.

Mr. Pillard: Many men would be deterred, if they didn't have an affirmative right to take the leave, by the assumption that their employers would not grant them leave if they requested it, by the assumption that they would be retaliated against in the employment process if they took it, because it is still much more unacceptable for men to take family leave than for women.

Justice Kennedy: Let me ask this question about the operation of this law in light of our recent cases on the Eleventh Amendment.

Is it your understanding that because of the exercise of the Commerce Clause power, that the States are bound by this law--

Mr. Pillard: That's right.

Unknown Speaker: --to grant the leave?

Mr. Pillard: That's right, Justice Kennedy.

Justice Kennedy: So all we're talking... and... and do you think that State attorney generals like... probably Mr. Taggart would be the better one to ask that question... would tell their Governors and their officials you are bound, by law, to grant the family... to follow the Family Medical Leave Act?

Mr. Pillard: So the question is, why damages?

Once Congress has found a problem, a serious problem of unconstitutional discrimination, that we assert exists here, the standard remedy to enforce rights in the employment context is make whole monetary relief, the centerpiece of which is lost wages.

Title VII uses damages, the Equal Pay Act uses damages, and here, in the Family Medical Leave Act, these are limited damages.

Congress took great care to ensure that they wouldn't overburden the States--

Justice Kennedy: I understand that, but it seems to me if there's a big problem you can have an Ex Parte Young suit or, if the Government just is... the United States is concerned about this, the Government of the United States can intervene, and why isn't that wholly adequate--

Mr. Pillard: --Congress determined--

Justice Kennedy: --to enforce this law?

Mr. Pillard: --Congress considered very carefully that damages were needed, and limited the damages.

They're just enough to spur enforcement and not burden employers, including the States.

You need money damages to make sure cases get the attention of higher-ups in State government as well as in private industry.

States at the highest levels may be fully responsive, but the application of stereotypes is typically at the lower level of the supervisor with hiring, promotion, and assignment discretion, the line supervisor in the State university, in the State hospital, in the State troopers, in the State human services agencies, like where Mr. Hibbs worked, and without the clear commitment by Congress that a threshold of family leave is going to be made available not on an ad hoc basis, not according to supervisor decisions about who really needs the leave, but because Federal law requires it as a remedy for past discrimination.

Only then will that message really reach the line supervisors who are making these decisions.

So I would emphasize that the act is working, the damages are limited, and the problems at which it aims are clearly unconstitutional, and petitioners are just wrong that there was no evidence in the legislative record.

Congress clearly identified the problems, the problems of the States as on a par with problems of other sectors.

Congress was well aware of the body of recent judicial decisions, finding State sex discrimination in employment.

We've included some illustrative examples in our brief at footnote 23.

The United States has included some examples of the most recent cases in their brief at note 15 and, as I was discussing before, Congress learned of the patterns of States granting leave to women but not to men, and Congress saw the family medical issue as part and parcel of the parenting leave issue.

These were all responsibilities, family care responsibilities traditionally performed by wives.

And so Congress aimed in subsections (a), (b), and (c) at a common problem of employers' assumptions of women taking leave burdening their employment prospects, and employers' assumptions that men did not need the leave, hindering their ability to take it, which in turn exacerbates the discrimination problem against... against women.

So denial of employment opportunity to women and of family leave to men are two sides of the same coin.

Congress clearly identified the problems, had facts showing that they continued.

Nearly every State, until a generation ago, overtly placed discriminatory restrictions on womens' workforce participation.

That history--

Justice Scalia: A generation ago.

How many years is a generation?

Mr. Pillard: --Well, when Congress was acting in 1993, it was only 20 years since Title VII had been extended to the States, and less than that since this Court had adopted heightened scrutiny of sex-based classifications based on the recognition that public agencies have a... have a tendency to rely on overbroad sex-based generalizations, overbroad sex-based classifications, so it was... it was only since the 1970's that we started to recognize that discrimination that we had previously seen as benign, as often intended to help women, was really hindering their advancement, and to... and to seek to try to dismantle that system.

Justice Ginsburg: And the changes in the unemployment and Workers' Compensation laws, those persisted.

Wasn't the Wengler decision in 1980?

Mr. Pillard: That's right.

We have decisions--

Justice Ginsburg: And States all have that kind of one-way law, where the woman did not... if the woman wage earner died, then her husband got nothing because she was not considered really an equal worker.

Mr. Pillard: --Really her wages were supplemental.

Justice Ginsburg: And that went on till 1980.

Mr. Pillard: That's exactly right, and we have the beginning of a process of dismantling this discrimination.

Argument of Viet D. Dinh

Chief Justice Rehnquist: Thank you, Ms. Pillard.

Mr. Dinh.

Mr. Dinh: Thank you, Mr. Chief Justice, and may it please the Court:

The Family and Medical Leave Act is just one part of a broader statutory scheme to eliminate sex-based employment discrimination in the hiring, retention, promotion, and granting of leave benefits for both men and women, and that's the key point to emphasize here.

Congress was acting not simply to remedy discrimination in leave-granting policies, but more fundamentally Congress sought to remedy and prevent sex-based employment discrimination based on impermissible presumptions about the role of women in the home and the role of men in the office.

I--

Justice O'Connor: --In our cases, is there any difference between Congress' prohibiting something under its section 5 power and creating a substantive entitlement under that power?

Mr. Dinh: I have not seen a distinction in the cases, in the section 5 cases of this Court.

They are few and far between, as you can--

Justice O'Connor: Uh-huh, right.

Mr. Dinh: --as you can appreciate, but the distinction is not readily made.

One can characterize the entitlement here as simply a prohibition on discrimination for men and women who take leave.

It is simply an--

Justice Scalia: No, it isn't, it's 12 weeks.

--entitlement to come back to a job.

Justice O'Connor: Well, it's a 12-week period.

Justice Scalia: It says you get 12 weeks, and if... if we approve this, we are establishing the proposition that in order to eliminate, to enforce any of the provisions of the Fourteenth Amendment, but in particular equal protection, the Government may establish whatever substantive requirements might further equal protection, and I just don't know where the Government plucks 12 weeks from and says that it... we have to stop discrimination, and therefore everybody's entitled to 12 weeks of leave, and it's an extraordinary leap.

Mr. Dinh: --Your Honor, I disagree that there is no limiting principle here, and the limiting principle is precisely provided by this Court's jurisprudence in congruence and proportionality.

That's precisely the limiting principle as to what is the constitutional violation that Congress seeks to redress, and whether or not the remedy is congruent and proportional.

The constitutional violation here that Congress seeks to redress or to prevent is employment-based discrimination based upon presumptions about leave-taking habits of men and women.

Justice Scalia: And was that the big fight in the statute?

Is that what was really going on when this 12-week... I mean, I... I was around at the time, and I remember the big... the big discussion was whether there ought to be a Federal law that requires all employers, not States in particular, but all employers to give all workers 12 weeks of family leave if they wanted it.

That was what all the discussion was.

I didn't hear any discussion at the time of sex discrimination, and you present it to us as though this was the motivating factor of the legislation.

I find that hard to believe.

Mr. Dinh: Your Honor, I was not there at the time, and I--

[Laughter]

But I will take your word for it, but more importantly, I think we should take Congress' word on its face.

Congress says at 29 U.S.C. 2601(b)(5) that the purpose of the, one of the purpose of the statute is, quote, to promote the goal of equal employment opportunity for women and men pursuant to the Equal Protection Clause, and the further evidence--

Justice Ginsburg: Justice Scalia is right, is he not, that it... the bill that he's talking about was the '87 bill, and that didn't say anything about the Equal Protection Clause, and that's the startling difference between the bill that actually passed in 1993.

Mr. Dinh: --That's precisely right, Justice O'Connor... I mean, Justice Ginsburg.

Justice Scalia was talking about S. 249, the 1987 bill.

The first time that the section (5), the promotion goal that entered into the statute was in the next iteration, H.R. 925 in the House, in 1987, and concurrent with the insertion of the promotion of equal opportunity, Congress also included the provision for family leave for care of parent illnesses, as opposed to simple... simply children illnesses.

And so there is some concurrency with respect to Congress' reliance on, for the first time, section (5) authority and the grant of family leave, and that's consistent with the legislative record that was before Congress.

Congress was facing a situation where it was finding more two-worker families entering in the workforce and increased demand for family care in the workforce, and it said that, based upon the evidence, as Justice Souter had summarized, that when push came to shove, women would be expected to take leave to take care of the family, and Congress was finding that push was, indeed, coming to shove, and was adopting a remedy that was directly proportional and congruent to the period of constitutional violation.

It adopted a gender-neutral entitlement to leave so as to eliminate the underlying presumption that this Court has said is impermissible.

Justice Scalia: Would 24 weeks have been proportional?

Mr. Dinh: Your Honor, I'd... that would be a more difficult case.

I do not think that--

Justice Scalia: 6 weeks?

Would 6 weeks be proportional?

Mr. Dinh: --It would... the... the... I do not think that this Court's jurisprudence on proportionality has fine... is so finely tuned, and this Court's lack of--

Justice Stevens: Of course, that jurisprudence came after the statute was enacted anyway.

Mr. Dinh: --And I do not think that this Court's evaluation of congressional enactments under section (5), the unique remedial powers of Congress under section (5), would turn on whether it's 10 weeks or 12 weeks or 13 weeks.

Of course, if it is more an increase, then it would be less proportional, if it is less, then it would be more proportional.

Justice Scalia: I agree that it shouldn't turn on the length.

That's the point I was getting to.

I can't imagine that it would turn on the length.

Justice Stevens: Perhaps Justice Scalia should ask this question, but I was just wondering--

Unknown Speaker: [Laughter]

Justice Stevens: --if you have to get to the--

Justice Scalia: --Pass it to me.

Unknown Speaker: I'll--

[Laughter]

Justice Stevens: You have to get to the 1993 version of the statute to introduce the equal protection notion, and it's interesting to me that precisely the same remedy was provided after the equal protection became an ingredient of the problem as was provided before the equal protection rationale was introduced.

Mr. Dinh: You mean, that same remedy, you mean number of weeks?

Justice Stevens: The same 12-week period.

Wasn't that true?

Mr. Dinh: Not exactly, Your Honor.

H... the first time that the family leave was introduced and the first time the section (5) authority was invoked was in H.R. 925, and there were differing leave times for different provisions.

I believe there was one that for section (d), for the personal disability, it was 24 weeks.

Some was at 6 weeks.

It turns out that when Congress passed this statute, a prior version of which was 1990, 1991, and this version in 1993, it pretty much reached the equilibrium of 12 weeks.

This is the normal give-and-take of the legislative process, and nowhere in this Court's jurisprudence--

Justice Stevens: And this was the statute that was repeatedly vetoed, as I remember it, the bill, by President Bush, and the basis for the veto had nothing to do with discrimination, that it really was based on the length of the provision.

Mr. Dinh: --No, Your Honor, you are right, the... I have reviewed the veto statements.

They concern the imposition that these types of policies would have on small businesses and the economy of the United States, rather than on the discrimination provisions at issue.

But it's clear that Congress, in passing the statute, was relying on the discrimination, discriminatory effects that these types of leave policies would have on women.

And I think the crux of this case, if I may, turns exactly, Justice O'Connor, on your comparison with the evidence that was before Congress when it enacted Title VII, when it extended that, when it included that into the gender.

As you may recall, this Court in, I believe in Price Waterhouse v. Hopkins, recounted the legislative history of how gender entered into Title VII, and it was entered there as the legislative equivalent of the poison pill in order to attempt to kill Title VII, and so not much evidence was put into the record regarding gender discrimination, and yet, as you noted in 1976, in Fitzpatrick v. Bitzer, this Court assumed that that was adequate in order to invoke section (5) authority, or justify section (5) authority.

Justice Souter: Do... do you want us to say that before the Family Medical Leave Act was enacted there was a discernible pattern of intentional and purposeful discrimination by the States in violation of the Equal Protection Clause with reference to the granting of leave?

Mr. Dinh: There was evidence, with respect to the granting of leave, of such discrimination in the record before Congress, yes, Your Honor, but in addition to that, there was a discernible pattern of employment discrimination that this Court had taken judicial notice of and Congress had before it and, in particular, Congress has evidence of employment discrimination based on leave-taking presumptions that this Court has found to be illegal.

Justice Breyer: I guess you're thinking under this Court's cases, which we accept as a given, Congress would have more leeway to create a remedy for the general discrimination than it might have if the discrimination, that if the leave discrimination were at issue?

Mr. Dinh: It goes into both the--

Justice Breyer: You think there's enough for both, but the remedial power is greater, is that right?

Mr. Dinh: --There's no question that under the... under Kimel the Court has said that difficult, intractable problems often require more powerful remedies, and that would certainly be the, how the Court would evaluate--

Justice Breyer: It's hard for me to see there's a discernible pattern of intentional and purposeful discrimination when in the legislative history of this act the States were cited as being in the forefront of enlightened policies.

Justice Stevens: That's what the record shows, and you're up here arguing just the opposite.

Mr. Dinh: --Your Honor, some States were in the vanguard, some States were laggards in the granting of leave policies.

Justice Stevens: But the latter was not mentioned.

Mr. Dinh: Yes, there... yes, it was, Your Honor.

I would refer Your Honor to the United States brief at pages 36 to 40, and also the brief for the petitioner at pages 29 through 30, which recounts some of this... some of this evidence.

The key here... but nevertheless, the statement in the record that you noted was about States' leave policies, whether or not they had leave policies at all.

We know 30 States had... had leave policy.

The position of the United States rests upon not whether States had leave policy, but the character of such leave policies.

Justice Scalia: Mr. Dinh, would it violate this statute for a State to provide the 12-week family leave to men and women both, but also to continue a policy of 6-week maternity leave?

Would that violate the statute?

Mr. Dinh: In addition to a 12-week, Your Honor?

Justice Scalia: In addition to the 12 weeks.

Mr. Dinh: 6 weeks, if I can characterize the 6 weeks not as maternity leave, but as pregnancy disability leave--

Justice Scalia: Call it pregnancy disability leave.

Mr. Dinh: --Well, this is actually a matter of quite... quite good... quite--

Justice Scalia: What's in a name?

Mr. Dinh: --No, no, it is a matter of substance, not form alone, because pregnancy disability, medically and in insurance terms--

Justice Scalia: No necessity to prove disability, just, if you have a child, you're entitled to 6 weeks off.

Mr. Dinh: --If you are--

Justice Scalia: You don't have to prove that you can't walk, or anything else, just, if you have a child, you have 6 weeks off.

Mr. Dinh: --If--

Justice Scalia: Would that violate this act?

Mr. Dinh: --If the grant of the additional 6 weeks is on a sex-based basis--

Justice Scalia: Well, it is.

It's maternity.

I mean--

Unknown Speaker: [Laughter]

Mr. Dinh: --If that is the case, then that would... that may very well violate Title VII.

It would not violate this particular statute.

Unknown Speaker: Would it violate the Equal Protection Clause?

Mr. Dinh: Yes, it may very well violate the Equal Protection Clause if it is above and beyond the pregnancy disability leave that this Court has recognized can be accommodated, unconstitutionally though--

Justice Scalia: That would solve the problem, unless your answer is categorically yes, it would violate it, because then the discrepancy, the 30 percent versus 80 percent that we're talking about would continue.

Mr. Dinh: --Well, the... the key here, Justice Scalia, is that after the period that is recognized as pregnancy disability, and therefore constitutional under Geduldig, beyond that, parental leave, infant care leave is simply parental leave, and there's no difference whether the mother or the father takes care of the child.

Indeed, the law would not countenance such a difference, because that would be relying on the very presumptions that the law condemns.

And so the key here is that if there is an additional grant of leave to either sex beyond the period of pregnancy disability, that would constitute a violation of Title VII.

It would not constitute a violation of the FMLA.

The reason for that is very simple.

The FMLA was enacted as part of the overall antidiscrimination scheme.

It supplements and does not supplant Title VII.

It paints a little bit more broad... more broadly than Title VII in the sense that it grants affirmative leave rights, but in one further, in one important respect it paints very much more narrowly, as your... as your question to my colleague, Mr. Taggart, had indicated, Justice Kennedy.

That is because it is very narrowly tailored to the particular problem that Congress was facing, which is the problem of employment discrimination based on leave-taking propensities.

And so in that sense it is perfectly congruent to the constitutional problem that Congress was addressing.

Congress could not very well have addressed the problem of gender-based differentials and the presumptions in law and in practice that arise from those differentials by granting additional leave rights only to women, or granting leave rights only to men that would perpetuate the discrimination and the presumptions, rather than eliminate it root and branch.

The key to the money damages is the same key as it is in our general antidiscrimination statutes.

That should not be a surprising... Title VII has the same type of damage remedies, and the reason for that is that discrimination, whether it be for race or for gender, is pervasive and pernicious and historically recognized by this Court, and so Congress has made a judgment that it needs as many hands on deck as possible in order to enforce the effort to eradicate discrimination, and money damages is part of the normal remedy in order to ensure that plaintiffs are made whole and State actors are deterred from acting unconstitutionally or, in this case, in violation of the section (5) legislation that is at the... the... at issue here.

The fact that... if I may return to the point that the fact that it should not be surprising that this Court assumed in Fitzpatrick v. Bitzer that the... that Congress had authority under section (5) to include gender discrimination in Title VII, because in the same year was the year that the Court for the first time extended heightened scrutiny in Craig v. Boren, so--

Chief Justice Rehnquist: Thank you, Mr. Dinh.

Mr. Dinh: --Thank you.

Rebuttal of Paul G. Taggart

Chief Justice Rehnquist: Mr. Taggart, you have 4 minutes remaining.

Mr. Taggart: First, it's important to distinguish that paternity leave and leave for childbirth and when a child is adopted is not the question that was presented to this Court today.

The question presented to this Court is family leave, and there's certainly no record of family leave differentials, as has been argued with respect to parenting leave, and second, it is not possible under any jurisprudence of this Court to simply presume that State managers discriminate based upon some stereotype.

Title VII doesn't do that, the Equal Protection Clause, this Court's section (1) jurisprudence that interprets the Equal Protection Clause doesn't do that, the heightened scrutiny test does not do that, it does not allow someone to simply presume that State managers are using some... some outdated stereotype in making their decisions.

The third point I want to make is, it's our position that one who reads the text and the history of the Family and Medical Leave Act would hardly recognize the statute that has been described here today.

This was simply every-day economic legislation, and upholding the FMLA would simply tear section (5) from any remedial moorings by allowing a general legislative power of Congress to grant economic benefits so long as there is some incidental benefit to some suspect class.

Justice Kennedy: You mean holding, upholding money damages under the FMLA, because I take it you concede, or don't you, that Nevada is bound to follow this law?

Mr. Taggart: Since... I do concede that, and since 1993 Nevada has had a... a State policy of giving our workers Federal family medical leave.

We also have our own State medical leave laws, so States have joined, and have actually led the Federal Government in providing family leave for their employees, and to simply say, and ignore that... that pattern and say instead that States are engaged in a pattern of discrimination, or were engaged in 1993 in a pattern of discrimination, in our view does not stand up to any of this Court's section (1) jurisprudence.

Thank you, Your Honor.

Chief Justice Rehnquist: Thank you, Mr. Taggart.

The case is submitted.

Attribution:

The Oyez Project

Featured:

Lapides v. Board of Regents of University System of Georgia - Oral Argument

Fri, 09 Jan 2009 14:50:22 +0000

Case:

Lapides v. Board of Regents of University System of Georgia

Media File:

01-298_20020225-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of David Jeremy Bederman

Chief Justice Rehnquist: Spectators are admonished, do not talk until you get outside the courtroom.

The court remains in session.

Mr. Bederman.

Mr. Bederman: Mr. Chief Justice, and may it please the Court: When a State affirmatively invokes the jurisdiction of the Federal court by removing a case, that acts as a waiver of the State's forum immunity to Federal jurisdiction under the Eleventh Amendment.

This principle has been confirmed as recently as this Court's decision in the College Savings Bank case where it was indicated that a State may waive Eleventh Amendment immunity by invoking Federal court jurisdiction.

This rule also finds support in a long line of decisions holding that where a State enters a Federal proceeding as an actor in any role, that effectively relinquishes any objections to Federal jurisdiction a State may have under the Eleventh Amendment.

Justice Scalia: When you say as an actor in any role, does it ever intervene as a defendant?

Mr. Bederman: Yes, Justice Scalia.

This Court's precedents seem to indicate that wherever the State is cast in the role of plaintiff, defendant, intervenor, or claimant, that the entry into the Federal proceeding submits the State to the jurisdiction of the Federal court.

Chief Justice Rehnquist: How about the Ford Motor Company case?

Mr. Bederman: Well, of course, the authorization requirement in Ford Motor... and that's the particular holding in Ford Motor that I think is of concern to this Court... need not be reached here because, of course, Ford Motor did not involve a case where a State was actually invoking Federal court jurisdiction.

So--

Chief Justice Rehnquist: So, you think a line can be drawn between the State defendant being drawn in as a respondent or involuntarily as opposed to removing and thereby invoking Federal jurisdiction.

Mr. Bederman: --Yes, Chief Justice.

I think the key element here is precisely the invocation of Federal court jurisdiction.

And again, this... that's consistent with this Court's rulings in... in Gardner and in... and in Gunter and Clark where it's made clear that where the State actually is invoking Federal court jurisdiction, the proper inquiry is not the authority of the State officer or attorney to waive Eleventh Amendment immunity.

The proper inquiry is whether the State officer or attorney had the power to engage in the litigation conduct leading to the invocation of Federal court jurisdiction.

Justice Breyer: In all... in all those cases, they were cases in which a State really consented to have litigated against it a Federal claim in a Federal court.

And it's hardly surprising, once you agree to that, that you also are agreeing to have related things litigated against you.

But this isn't that.

This is a case where the only reason that the State went into the Federal court was so that the individual defendants would be able to invoke their right to have the matter heard in a Federal court.

So, why isn't the obvious solution here... there are only State claims left against the State which doesn't want these heard in the Federal court.

They haven't agreed to have anything heard there against them.

So, judge, send it back to the State court.

What's it doing here?

They don't want it here.

Call that pendent jurisdiction, pendent claims, but it's an abuse of discretion, at least, not to send it back.

Mr. Bederman: If I may make a number of responses to your question, Justice Breyer.

First of all, I believe this Court's holdings particularly in... in Richardson, in Gunter do present a situation where... where a State is entering the proceeding and... in the role of a defendant and later decides to regret that... that casting and tries to extricate itself from the proceeding.

So, I think there is authority in this Court's precedents to that extent.

To your more general observation in terms of the harm here, in essence, weighing the plaintiff's interest in a single and unitary proceeding in State court, a result which has been the... this Court's jurisprudence construing 28 U.S.C. 1441(c) for almost a century that... that the removal statute does not entitle defendants to remove and then split up claims--

Justice Breyer: All right.

Well, that's exactly... what if it's that?

The interest of the plaintiff in having the action against the individuals in the State tried in one place, on the one hand, against the interest of the State having a State matter tried in State court where the State has refused to waive its immunity from Federal jurisdiction.

That for me is easy.

One is a constitutional right; the other happens to be a right of a plaintiff that he wouldn't have anyway if he had brought his suit in Federal court, which is what removal jurisdiction is about.

So, why doesn't the State clearly prevail on that one?

Mr. Bederman: --Well, Justice Breyer, again with respect I think the... the proper analysis I think closely analyzing the State's professed interests in removing and claiming immunity was, first of all, to engage the expertise of Federal tribunals on questions arising under section 1983 and qualified immunity.

Justice Ginsburg: May I stop you there?

Because you mentioned section 1983, and that makes this case terribly puzzling because I thought States were not persons.

So, if you're not subject to suit under 1983--

Mr. Bederman: That... that's--

Justice Ginsburg: --That's the basis of... you're suing the State and the State is not a person within 1983.

So, even if you prevailed 100 percent on your Eleventh Amendment claim that you could remove despite that sovereign immunity claim--

Mr. Bederman: --Justice Ginsburg, I... I would remind the Court that, of course, there was relief pled for declaratory relief in the complaint, and under this Court's jurisprudence following from Will, a declaratory relief claim is properly pled in this kind of proceeding.

Of course, Will says--

Justice Ginsburg: --Against the State?

I thought a State was not a person, period, under 1983.

A municipality is, a county is, but a State is not.

It doesn't matter whether it's declaratory, injunctive, whatever.

They're not subject to suit under 1983.

Isn't that right?

Mr. Bederman: --No, Justice Ginsburg.

Under I believe the footnote in... in Will and also in the following case, Arizona's Official English case, it made clear that that interpretation of section 1983 of a person for purposes of suit was for money damages and that declaratory and injunctive relief, in order to keep the symmetry, presumably with Ex parte Young, as I believe this Court indicated, was... was a permissible pleading--

Justice Ginsburg: Well, Ex parte Young is something different.

You're suing the officer, not the entity.

Mr. Bederman: --That's right, but recall that not only are the regions being sued here but also individuals in their official capacity and as well as in... in their individual capacity.

Justice Breyer: No.

But Justice Ginsburg I think has said the individuals are out of it.

Qualified immunity.

We're left with the State.

She wrote for the Court in Arizona Official English... she says, the barrier was not, as the Ninth Circuit supposed, Eleventh Amendment immunity which the State could waive.

The stopper was that 1983 creates no remedy against a State.

Now, that's what the Court held.

So, 1983 creates no remedy against a State.

So, you have no Federal claim against the State, and your other Federal claims are disposed of.

So, we're left with a purely State matter in the State court... in the Federal court, and the State says, remand this, send it back.

Now, why shouldn't they?

Mr. Bederman: Well, again, my response to that would be plaintiffs do have an interest in seeing... in filing a single, unitary action in State court, as was properly done here.

And what the State of Georgia has attempted to accomplish via its removal and claiming immunity tactic is... is to break the... break the plaintiff's claim into discrete parts and dispose of them.

Justice Ginsburg: I don't understand that either.

What's very puzzling here is you wanted the case to be in State court, and then it was removed.

You moved to remand, didn't you?

Mr. Bederman: That's correct.

Justice Ginsburg: And now you're getting just what you want.

You're getting the remand and you don't want it.

Mr. Bederman: Well, it's... it's the remand apparently with the... the other consequences of the Federal court decisions to date.

That's, of course, unfortunately one of the consequences of litigating Eleventh Amendment immunity is that this was taken as an interlocutory appeal, and other proceedings of course have occurred since then.

Justice Ginsburg: But there's been no kind of adjudication on the merits against the State... against the State entity in any way, shape, or form.

Mr. Bederman: No.

You are correct, Justice Ginsburg.

To date, there have only been rulings by the district court as affirmed by the court of appeals on the qualified immunity defense as against the... the private--

Justice Scalia: May I ask why it proceeded... let me read you something else from one... a fairly recent opinion.

We have routinely addressed, before the question whether the Eleventh Amendment forbids a particular statutory cause of action to be asserted against States, the question whether the statute itself permits the cause of action it creates to be asserted against States.

Why didn't the lower courts follow that procedure and... and decide the 1983 substantive issue of whether the State is liable first?

Mr. Bederman: --I... I do not know, Justice Scalia.

In terms of... in terms of what I understand is the briefing and argument, the State of Georgia did raise the Will defense in its papers.

The district court chose to proceed with the case on another ground, dismissing the section 1983 claims against the private parties in their individual capacities on qualified immunity.

Maybe there was some concern about the status of the Board of Regents, but... but I'm as mystified, frankly, as you are about that disposition.

Again, if I may repeat, the concern that petitioner ultimately has about the use of removal and claims of immunity in this context is it splits claims which seems to be a result that's specifically prohibited by the removal statute and this Court--

Justice Ginsburg: But that seems to be a purely academic question not in this case because the qualified immunity question, as I understand it, was decided against the individual officers.

So, what Federal question... this goes back to what Justice Breyer asked.

I don't see any Federal question left in this entire case.

Mr. Bederman: --If... if you're not taking well my point about the availability of declaratory relief--

Justice Ginsburg: Well, at least the footnote that was read didn't make any distinction based on declaratory judgment.

It said a State is not a person for 1983 purposes.

Period.

That's what that footnote said.

You're telling me now that I was wrong.

Mr. Bederman: --I would never presume such, Justice Ginsburg.

[Laughter]

I... I think maybe the safest result... of course, this has not been briefed... is whether this Court's judgment in Will and subsequently in Arizonans for an Official English reaches this precise issue that I'm speaking to.

No lower court has addressed Professor Lapides' request for declaratory relief.

No briefing has been accomplished on that, and there's been no--

Justice Ginsburg: But if you're not right about 1983, assume now that a State is not a person for purposes of 1983.

Mr. Bederman: --Yes.

Justice Ginsburg: Then what Federal element... what Federal question is left in the case?

Mr. Bederman: There would be none left.

Justice Ginsburg: And then with all the Eleventh Amendment jurisprudence in the world, it would make sense for any district judge to hang onto a case that at the threshold had all the Federal elements taken out of it and has nothing but State claims left.

Mr. Bederman: Certainly after these proceedings, that might be the result that a district court judge in the exercise of... of its discretion may wish to... to achieve.

Our concern is precisely the one that when Georgia invoked the jurisdiction of the Federal courts for removal, it should have been with the understanding that all claims would move to Federal court, that the State could raise whatever defenses it wished to, in other words, the defenses travel to Federal court.

But what is not a permissible result is, in essence, the... the splitting of claims, the disposition to Federal court and then--

Justice Ginsburg: I don't see how that... how your client is in any way harmed by any of this because he ends up with what he wanted is his suit in State court.

Mr. Bederman: --Well, if I may make a broader point.

The Eleventh Circuit's judgment, from which appeal is sought here, is not entirely clear about this distinction between barred and non-barred claims.

That was not, of course, settled in any further proceedings in the district court as to whether now the State claims would proceed by remand back to State court.

Of course, the State of Georgia sought the dismissal of the entirety of Professor Lapides' case under rule 12(b)(6) when it removed the case.

So, it's... it's now... not entirely clear at the outset what Georgia's intentions were in removing the case and then seeking immunity.

Our proposition is simply that, as a matter of not only judicial efficiency but also the integrity of the removal statute and the fair meaning and understanding of this Court's Eleventh Amendment jurisprudence, is that when a State invokes Federal court jurisdiction under the Eleventh Amendment, the entire case then moves to Federal court and that the State cannot, thereafter, claim immunity from the jurisdiction of the Federal courts in those circumstances.

If the State does not have the authority... and this was an earlier question... under Ford Motor Company to waive the State's Eleventh Amendment immunity via removal, the proper course should have been in this case simply for... to find the removal was void ab initio and have the entire matter remanded--

Justice Ginsburg: But that's the end result you're getting.

You're getting a remand and you want to have a different label put on it.

But the bottom line is you wanted a suit in State court.

That was removed.

There... there's no Federal element left.

I can't imagine a district judge who would hang onto such a case.

Mr. Bederman: --Well, again, I would not presume to anticipate the future proceedings and that may--

Chief Justice Rehnquist: Well, your legal position is basically that a State should not be able to talk out of both sides of its mouth I guess.

It should not be able to remove and then when it gets to Federal court claim Eleventh Amendment immunity.

Now, how much of that argument is still valid after what's happened in this case I'm not sure.

Mr. Bederman: --Well, I think even though petitioner is, understandably, reluctant to introduce an idiom of judicial estoppel into these proceedings with... with obviously the clear indication that rules of estoppel tend not to run against the sovereign, but again that is precisely our concern.

In the matter of... of the... the symmetry and parity that occurs that when a State enters a Federal proceeding, it submits the entire case to the... to the jurisdiction of the Federal courts.

Justice Stevens: May I ask you, Mr. Bederman?

In the brief in opposition to the certiorari petition, did anyone point out the fact that maybe the State was not a person within the meaning of 1983 and that that was the reason not to take the case?

Mr. Bederman: Well, if I may review quickly.

Yes.

And I do recall that the State did raise in its op cert at page 10 the argument under Will.

I... yes.

They do opine that Will would... would act against the... the claims raised for monetary relief by petitioners here.

Justice Stevens: They're only after monetary relief.

Mr. Bederman: I would not want to put that gloss on... on the States.

I'm reading just an isolated passage on page 10 of their op cert. That... that is, in essence, the... the open question.

If I could return, Chief Justice Rehnquist, to your... to your observation.

Again, while we don't think it's necessary for the Court to rule on any judicial estoppel principles, clearly this is an appropriate case to draw a bright line rule in terms of States invoking Federal court jurisdiction.

Either they have the authority to do so and waive Eleventh Amendment immunity and the entire case proceeds to Federal court or the State officials or lawyers do not have that authority and the proper disposition is remand.

If I may reserve the balance of my time.

Argument of Irving L. Gornstein

Chief Justice Rehnquist: Very well, Mr. Bederman.

Mr. Gornstein, we'll hear from you.

Mr. Gornstein: Mr. Chief Justice, and may it please the Court: For four reasons, a State's removal of a case to Federal court waives its forum immunity, permitting adjudication of the claims against the State in Federal--

Justice O'Connor: Explain to me whether we've ever bifurcated forum immunity from immunity for suit... from suit?

I just... do we treat the two differently?

Mr. Gornstein: --They are both protections that are afforded by the Eleventh Amendment.

Certainly a State has both of those rights under the Eleventh Amendment.

But the question is the State can waive one without waiving the other, and that's what it did here, by selecting a forum, Federal forum, for the adjudication of the claim.

But in doing that, it did not give up the defenses that it had in State court.

And one of the defenses that it had in State court, and it would also have in Federal court, is a right not to be sued at all on constitutional claims.

But what it did give up is the right to proceed in State court, rather than Federal court, on the claims that it already has waived in State court.

Now, the principle that justifies... the... the State's invocation of Federal court jurisdiction through removal is a particularly clear example of a State voluntarily invoking Federal court jurisdiction.

Justice Ginsburg: Mr. Gornstein, may I deflect you?

Because I got from your brief the notion that this case is academic, and let me read you from page 23, note 8.

The question whether a State that removes a case waives its immunity to constitutional claims is largely academic.

Section 1983 does not authorize a suit against a State in either State or Federal court.

It seems to me that you were telling us in that footnote that whatever is said about the removal, this case goes because the State is not subject to 1983.

Mr. Gornstein: To the extent that there are constitutional claims against a State, that's correct.

To the extent that there are State law claims against the State, that is not correct because the State has waived its forum immunity with respect to the State law claims--

Justice Ginsburg: Would a district judge be acting reasonably to hold onto a case that has no Federal claim that involves the State tort claims act, that those are... the State claims are under the State's own tort claims act, like the Federal Tort Claims Act.

Can you... could a Federal judge justify sitting to adjudicate a case against a State under the State's tort claims act?

Mr. Gornstein: --Justice Ginsburg, that would be a question for the exercise of the district court's discretion under the supplemental jurisdiction grounds.

That... certainly if the Federal... all the Federal claims were out of the case, one ground for remanding the rest of the cases under the supplemental jurisdiction statute would be present.

It would be a matter, though, for the exercise of the district court's discretion.

Justice Ginsburg: It was always my understanding that the district court would take into account how far have we gotten into the case--

Mr. Gornstein: Correct.

Justice Ginsburg: --from the Federal--

Mr. Gornstein: Right.

Justice Ginsburg: --If you drop here, the Federal issue drops out at the very threshold.

Mr. Gornstein: Correct, and that would argue more strongly in favor of the district court exercising its discretion in that direction, assuming there's no other Federal claim in the case.

And let me just address that briefly because it is our understanding that a suit against a State official in his official capacity for injunctive or declaratory relief is not a suit against the State and it is a suit against the person under... under section 1983.

So, if there is a claim... and I'm unsure of whether the complaint should be read that way, but if there is a claim against the individual defendants in their official capacities for declaratory or injunctive relief--

Justice Ginsburg: I thought the... the motion to dismiss as to the individuals was granted on the grounds of qualified immunity.

Mr. Gornstein: --Only as to the claims against them in their personal capacities, not as... with respect to the claims against them in their official capacities.

So, that claim, if it's... if it was there to start with, it's still there.

Justice Ginsburg: I don't understand the difference between a claim against the State itself and the claim against the State officer in his or her official capacity.

Mr. Gornstein: The distinction that the court drew was... is this... traces its origins to Ex parte Young, that that is a suit against the officer in his official capacity.

There's no allegation that he's done anything in violation of State law, and you're not trying to--

Justice Ginsburg: What Mr. Lapides wants... Mr. Lapides, as I understand it, wants a money judgment.

Mr. Gornstein: --I think it's... it's largely true that he wants a money judgment, but there is one allegation in his complaint upon which he relies in saying that he's also seeking declaratory relief against an individual... an individual officer in his official capacity.

Justice Breyer: So, that's like suing the State.

In... in other words, there is a claim.

Under... under 1983.

A State is a person when you ask... say I want an injunction.

The State is a person.

Mr. Gornstein: I would say... I don't want to quibble too much with the semantics, but I would just... I would put it this way.

The official is not the State for purposes of--

Justice Breyer: All right.

Then that's a different matter.

So, what you're saying is there is an action against the official.

All right.

That's not the issue because they dismissed all the claims against the officials.

Mr. Gornstein: --No, they did not--

Justice Breyer: Oh.

So, there's still an action left against the officials.

Fine.

Mr. Gornstein: --If it was ever there, Justice Breyer--

Justice Breyer: Fine.

Okay, I got it.

Mr. Gornstein: --it's still there.

Justice Breyer: Now, if that's so, how could it not be an abuse of discretion?

Assuming if that's even there, how could it not be an abuse of discretion to refuse to send this back to the State?

Mr. Gornstein: Again--

Justice Breyer: A purely State matter.

And... and I'm not, you know, overwhelmingly far out I think in this area, but I don't really see why... why the State here wouldn't have a right to have it sent back on the ground it would--

Mr. Gornstein: --Well--

Justice Breyer: --be an abuse of discretion not to.

Mr. Gornstein: --It... it wouldn't have a right to have the case sent back.

Justice Breyer: Why not?

Mr. Gornstein: It would never... because it's a matter for the district court--

Justice Breyer: There is an abuse of discretion under certain circumstances.

Mr. Gornstein: --And what I would say--

Justice Breyer: Yes.

Mr. Gornstein: --That would be the question whether there is an abuse of discretion.

Justice Breyer: And why not?

Mr. Gornstein: And the... I don't want to argue that part of the case too much, but the reason would be if there are still Federal law claims against... 1983 games against the... individuals and they arise out of a common nucleus of operative facts with the claims against the State, then it would still be fair to try those claims in Federal court because the State made a voluntary choice to bring this case into Federal court.

It had an option to leave the entire suit in State court if it wanted to.

It exercised the option to bring the case into Federal court.

Now, once it did that, under Federal law, the Federal consequence of that is that a Federal court has authority to adjudicate the very claims that the State has brought there.

And the principle that--

Chief Justice Rehnquist: Are you saying that it's a different case because the State removed it than it would have been if the same factual circumstance had occurred in the case originally brought in the district court?

Mr. Gornstein: --I am, Mr. Chief Justice, because under this Court's decision in Pennhurst, if a plaintiff files a suit in Federal court that includes both Federal law claims and State law claims, the State law claims against the State are... have to be dismissed under Pennhurst.

But the situation is different.

This plaintiff did just what the Pennhurst opinion suggested that he should do, which is to file his claims against the State under State law in State court.

And... and with that, he added his Federal law claims so that he could have a single lawsuit filed in a single forum.

Now, what the removal statute says is that there's only can be removal if there... you get the consent of all the parties to the removal of the entire case.

The removal statute does not allow for State court defendants to divide up a single case or controversy into two different cases in two different forums.

And the State is effectively seeking to accomplish that goal.

Now, it says it needs to do that because it wants to get the benefit of a Federal forum for its State employees.

But the... just because the State has a difficult choice to make about whether to remove a case to Federal court or not doesn't mean its decision to bring the case to Federal court isn't voluntary.

It's still a voluntary decision to bring the case to Federal court.

It's also a little surprising to hear the State say that it needs to have a Federal forum for its State officials on Federal law issues when the State has repeatedly and successfully argued to this Court that State courts are fully competent and just as competent as Federal courts to adjudicate Federal law issues.

And it's... it's particularly surprising that the State thinks it's in the State's interest for its employees to get an interlocutory appeal in Federal court when the State's own policy is that they aren't entitled to an interlocutory appeal.

Chief Justice Rehnquist: Well, the State is certainly entitled to make a tactical judgment--

Mr. Gornstein: It certainly is.

Chief Justice Rehnquist: --that it's better off in Federal court than it is in State court.

Mr. Gornstein: It absolutely is, Mr. Chief Justice, and all we are saying is once it does that, then it has to accept the consequences of that choice, which is the Federal court then has authority to adjudicate the entire case that has been brought before them... before it.

I wanted to say a word about the... the Ford Motor Company case because in the Ford Motor Company case, the Court did deem State law authority to consent to be the critical issue.

But all other decisions in which the Court has addressed the invocation issue, the Court has held that an individual when... I mean, when a State invokes Federal court jurisdiction, it waives immunity as a matter of Federal law.

Argument of Devon Orland

Chief Justice Rehnquist: Thank you, Mr. Gornstein.

Ms. Orland, we'll hear from you.

Mr. Orland: Mr. Chief Justice, and may it please the Court: The State, along with its employees, removed this case to Federal court so that its employees could take advantage of a... in a Federal forum.

This does not amount to a waiver for two reasons.

First, it is not a clear and unequivocal expression of the State's desire to waive its immunity, and second, the attorney--

Justice O'Connor: Is it a waiver of forum immunity as opposed to immunity from suit?

Is there such a distinction?

Mr. Orland: --Your Honor, this Court has never made such a distinction, and the first I've ever heard of the concept of forum immunity being parceled out from the rest of the immunity was in this case.

Apparently there was a recognition at some point by the petitioner in this case that the Federal claims would be barred even in State court, and then they've come up with this forum immunity concept.

Justice Scalia: It's not... it's... I mean, the concept has been around.

I mean, we've... we've held that a State does not... just because a State is willing to be sued in its own courts does not automatically mean that it can therefore be sued in Federal court.

Isn't that right?

Mr. Orland: Your Honor, the concept of what--

Justice Scalia: Which... which means that... that you can be immune in one forum and not immune in another forum, although you're not immune from the suit entirely.

Mr. Orland: --Your Honor, that is exactly what the Court found in Pennhurst, but I would suggest that the Court has also found in Pennhurst that the absence of that choice, that concrete choice, would emasculate the Eleventh Amendment.

So, what is being argued is by the exercise of procedural device for the benefit of our employees would cause a State to sacrifice a part of the immunity which the absence of would emasculate--

Justice Scalia: Well, that's... you know, that's too bad, isn't it?

Mr. Orland: --Well, Your Honor--

Justice Scalia: The cost of getting the advantage of Federal courts is that you... you come into Federal court.

It seems to me self-evident.

Now, you say I have a good reason for wanting to be in Federal court.

Well, you may indeed.

But there you are.

Mr. Orland: --Your Honor, first of all, I'd like to point out that that cost is just too high.

As the zealous advocate on behalf of all of my clients, I have to choose between the individual's right to deal with the law as it is in the State of Georgia, whether that's the State of Georgia's choice or not, but the law in the State of Georgia at the present time is that there is no right to direct appeal.

So, as a zealous advocate on behalf of the individual employees, we have a desire to protect the individual employees from the right--

Justice Stevens: But that's a right of the State of Georgia to protect the individual employees, and the State of Georgia has said the right to an interlocutory appeal is not all that important.

You have the substantive defense that you just can't because Georgia has its own choice of whether it's better to have this decided after the whole case or in the middle.

They think it's better to wait till the case is over.

Now, why can't Georgia make that decision?

Mr. Orland: --Georgia absolutely can make that decision, Your Honor, through its legislative process, and that's part of the point.

Justice Stevens: Well, why shouldn't that decision also influence the tactical decisions of the attorney general when he's litigating?

Mr. Orland: Because the attorney general represents more than just the State in a lawsuit such as this.

The individuals are also being represented by the attorney general, and the State should not be required to sacrifice all or part of its Eleventh Amendment immunity so that the attorney general can zealously advocate--

Justice Stevens: But it's the State of Georgia's legislature who have made the decision that's troubling for the State of Georgia's employees.

Mr. Orland: --Your Honor, but the employees have to take the law as it is.

Chief Justice Rehnquist: Well, and the legislature didn't say that no Georgia employee shall ever have an interlocutory appeal in any court.

It had just said they don't happen in Georgia courts.

Mr. Orland: That's correct, and Congress has seen fit to allow for a procedural device for State defendants or any other defendants to take advantage of the procedures available to them.

But nowhere did Congress--

Justice Ginsburg: But you're missing one very key thing here.

Congress said in order to remove, all defendants must remove.

Those officers could not have been... could not have removed on their own.

They had to have the State's consent.

And for the State, after consenting, to say, oh, we're going to accommodate you, we'll join in the removal, but as soon as we get there, we're going to come out, it seems to me that is just the clearest end run around Congress' direction that all defendants have to join in the removal petition.

It would be a sham removal if someone were to say, okay, I agree to remove and be in the Federal court, but the minute I get to Federal court, I'm going to say, Federal court, you can't get me.

Mr. Orland: --First of all, Your Honor, Congress did not expressly state that all defendants needed to agree.

That is a court-created doctrine, and I'm not going to challenge the... that doctrine.

Justice Ginsburg: It's a court interpretation of the removal statute.

Mr. Orland: Yes, Your Honor.

Justice Ginsburg: And... and you're not going to challenge that.

So, it's as good as if it were in the statute, just as the sovereign immunity doctrine, although it's not in the Eleventh Amendment, is there.

Mr. Orland: Your Honor, all that is true.

But Congress also contemplated the remand of certain claims.

And the only thing the State is asking in this case is for the case to be treated as if it were originally filed in Federal court, which it is our belief is the true intent of the congressional removal statute.

They didn't allow partial claims to be brought up, and the reason they didn't allow for it is because of the court's potential exercise of supplemental jurisdiction.

But in this case, there can be no exercise of supplemental jurisdiction simply because the legislature for the State of Georgia has not waived its sovereign immunity as to the Georgia Tort Claims Act for actions within the courts of the United States.

So, in this case, by the exercise of a procedural device, the attorney general would not be only overriding the very principles established in the concepts of federalism, but would also be overriding the... the decisions of the State legislature and the Georgia constitution.

Justice Ginsburg: Ms. Orland, then it seems to me the obvious thing that the zealous representative of the State would say is, sorry, we can't join in the removal petition.

This case belongs in State court and we're not going to engage in any subterfuge.

We... it's just as though it were brought originally.

It would be no good.

So, we are not going to go through the sham of signing our name onto a removal petition only to say that this case can't be brought in Federal court.

If the State were zealous in its position that only the State court can adjudicate this, it had no business signing on to any removal petition.

Mr. Orland: Your Honor, I understand the concerns of the Court regarding the concept of saying we're going to Federal court, but no, we're not.

The... but the reality of the removal statute is, is it doesn't allow for the removal of some claims, and that's a procedural device available.

If there's a remedy to be had, the remedy to be had is with Congress.

If there's a problem with the removal statute not allowing certain claims to be brought in Federal court and therefore the whole case can't be removed--

Justice Ginsburg: There's nothing wrong with the statute.

It says all defendants have to join in the removal, and the removal has to be... it seems to me that the State of Georgia really is playing rather fast and loose with the... with the Federal court when it says, aha, we're going to bring this to accommodate... to accommodate two people who couldn't do it on their own.

Mr. Orland: --Your Honor--

Justice Ginsburg: It seems to me that the case on Georgia's own theory is non-removable from day one, and that's the position that Georgia should have taken.

This is not a case for a Federal court.

Mr. Orland: --Then by very virtue of a sham joinder of the State in a case, which in this case arguably was done by suing the case... State under 1983 and further by attempting to sue the State, for which there has been no waiver of sovereign immunity as to defamation of liable, a plaintiff can shamly decide that individuals won't be entitled to--

Justice Ginsburg: The plaintiff in this case wanted to be in the State court.

It's the State that said Federal court.

So, you can't... this... that's why this case is so puzzling because it's the plaintiff who wants to be in the Federal court... in the State court.

And... and the State wants to take it into the Federal court.

It really is something that only a lawyer could conceive.

[Laughter]

Mr. Orland: --Your Honor, I think that the problem here is, is that by virtue of 1983 litigation, individual employees get sued.

And it does create sort of a quandary of issues because the individuals have a desire, quite understandably I'm sure, to get the case resolved, to--

Justice Scalia: But... but you're asking for a broader principle, which it may well be that in... in its application to your case there's some... you can understand why the... why the State wanted to go into Federal court.

But what you're asking for is the general principle that by coming into Federal court, you do not waive State sovereign immunity, and that general principle would have applied even if you had been the only defendant in the State court.

And you removed to Federal court, and then having gotten into Federal court, you moved to dismiss on grounds of sovereign immunity, which is absurd.

Mr. Orland: --Your Honor, I would agree it's absurd, and that type of behavior could be sanctioned by the court.

If a lawyer is going to play those kinds of games, it is certainly within the court... district court's province to sanction ill-behavior.

And that's what is being alleged that we did.

But what I would point out is that every--

Justice Kennedy: On what... on what grounds would you sanction the behavior if you're saying that it's lawful.

I don't understand that.

Mr. Orland: --Your Honor, if it--

Justice Kennedy: You're saying, counsel, you have exercised every right that we can give you under the law.

We're now sanctioning you for doing that.

That... I don't understand that.

Mr. Orland: --I'm sorry if I misspoke.

If a lawyer is going to remove a case and do it for the purposes of delay or some other misconceived purpose--

Chief Justice Rehnquist: Lawyers do all sorts of things for the purposes of delay.

[Laughter]

Mr. Orland: --And it's improper.

Chief Justice Rehnquist: I'm not... I'm not sure it is.

I think in many cases an attorney will look at two different choices, particularly if you're a defendant, and you'll choose the thing that will delay the case's final resolution.

And nothing improper about that.

Mr. Orland: There's nothing improper about that, but in the scenario that if it is improper, if it is determined that there is some attempt to elongate litigation for an improper purpose, the court has the discretion to sanction that behavior.

Moreover, Congress has the ability to change--

Justice Stevens: Yes, but you're not... they're not elongating the case.

They're trying to terminate it in a hurry in this particular--

Unknown Speaker: [Laughter]

Justice Stevens: And I just don't understand how that could possibly be sanctionable conduct if we say it's a proper usage of the removal statute and it doesn't waive sovereign immunity.

They'll do it all the time.

Mr. Orland: --Your Honor, I'm not saying we did anything improper.

I'm saying that in the event that somebody did do something improper, that's sanctionable.

Justice Stevens: Yes, but the question is whether this particular maneuver is... is authorized by law or not.

And if it's authorized by law, it surely isn't improper.

Justice Scalia: Indeed, it would be improper not to take advantage of it.

Justice Stevens: Sure.

Justice Scalia: You should be sanctioned as incompetent counsel.

[Laughter]

Mr. Orland: Hence, the quandary of being a State litigator, Your Honor.

And that's exactly the point.

We have several clients here.

The... the attorney general's office represents the individuals as well as the State entity on both State and Federal claims.

You're right.

All of the Federal claims are gone.

Even if you read at joint appendix 17 the plaintiff's assertion that he is seeking declaratory relief, which I would suggest is not a clear statement of declaratory relief... it is a request for declaratory relief under State law.

So, if the Court--

Justice Stevens: It just occurred to me that maybe there is sanctionable conduct here because you have a conflict of interest.

Your interest in the employees is definitely directly opposed to your interest representing the State.

So, maybe you should have gotten separate counsel.

Mr. Orland: --Well, Your Honor, in fact at some point in this litigation we did.

But at the initial point of the removal, there was no reason to.

And I think this goes to Justice Kennedy's concurrence in Wisconsin, which is if the State is going to be placed in some tactical disadvantage, this rule should not be adopted.

The tactical disadvantage in this case is quite simple.

The State would be at odds with its employees.

The State would not be in a position where there is no Eleventh Amendment protection as to some claims perhaps... or it hasn't been decided yet for ADA Title II claims... to have a Federal court be the first to adjudicate those types of issues and have the fastest course to this Court for a determination--

Chief Justice Rehnquist: The State would be at odds with its employees because the employees want an interlocutory appeal and they can't get it in the State court?

Mr. Orland: --Yes, Your Honor.

Chief Justice Rehnquist: That... that sort of thing arises frequently.

Do you move for a change of venue or not in a particular case where you've got multiple defendants?

And as Justice Stevens said, perhaps a lawyer ought not to have multiple defendants if they're going to have different... different approaches to the thing.

Mr. Orland: Well, Your Honor, I think that's... that's exactly the point here is... and also the point as to why the attorney general, as the litigator on behalf of the State and its employees, should not be in a position to make a decision as to waiver.

That's why it goes to the legislature.

Justice Stevens: May I interrupt once more?

I hate to... I'm sorry--

Mr. Orland: I'm sorry, Your Honor.

Justice Stevens: --I'm interrupting so many times.

But is it your position that the general rule should be that removal waives the State's sovereign immunity, but there should be an exception when there's a good reason because of a conflict of interest?

Or is your... your position is that it will never waive sovereign immunity?

Mr. Orland: Your Honor, the only time that it could waive sovereign immunity is if the State legislature says I authorize the attorney general--

Justice Stevens: No.

Absent a State legislature... you're arguing for a general rule, not just for a rule that will protect you in this particular case.

Mr. Orland: --That is correct.

Justice Breyer: Well, a general rule.

My goodness.

Suppose the State comes in and they have four claims and they... they wanted... they say, oh, I have a great idea.

I'm going to get this claim litigated over here in the Federal court and there are three related claims.

It's a bankruptcy matter, for example, and they just pick and choose.

I mean, normally when... when you have waiver in constitutional law, say the Fifth Amendment, you... you start waiving answers to one question and related questions are going to be waived too.

Mr. Orland: Well, Your Honor, and that's exactly the point, is there is no clear statement of waiver here by Congress or the State legislature.

I don't think you can just pick and choose a waiver.

Justice Breyer: All right.

Well, I mean, but Justice Stevens' question is that you're arguing for a general principle that... that they don't waive anything.

Is that right?

They... they come into Federal court.

Why did they do it?

They came into Federal court in all these others because there was a claim they wanted litigated either for them or against the State.

So, I would have thought they would at least have waived all related matters.

Mr. Orland: Your Honor, in all the cases relied upon by the petitioner where the State has come into Federal court, the court's first inquiry was whether the Eleventh Amendment applied.

In all of those cases, the court first found that the Eleventh Amendment simply was inapplicable.

When the State is acting as a plaintiff or in any form or fashion or entering in as a party, it's not a suit commenced or prosecuted against the State.

The petitioner in this case conceded that the act of removal does not translate the State from a defendant to a plaintiff.

Yet, they are asserting that the cases where the State has entered in as a plaintiff somehow are applicable, and they are not applicable.

Justice Scalia: But on your theory, even if the State had come in as a plaintiff in the first place, you would have sovereign immunity, wouldn't you?

Because the legislature hasn't waived it.

Mr. Orland: Your Honor, the Eleventh Amendment would just simply be inapplicable if the State entered as... as a plaintiff.

Justice Breyer: I thought you were claiming sovereign immunity.

I mean, it... I mean, sovereign immunity today is something broader than the strict terms of the Eleventh Amendment, and I thought you were making the... the full claim.

Mr. Orland: Your Honor, I'm sorry.

I'm baffled.

But I think that sovereign immunity--

Justice Breyer: Well, I have had that problem too in some of the prior cases.

Unknown Speaker: [Laughter]

Justice Breyer: But I... I haven't agreed with them, but I... I have to accept what they are.

And... and the... the principle of sovereign immunity is a principle today that is not limited by the... by the strict terms of the Eleventh Amendment.

Mr. Orland: --As was pointed out I guess in Alden is the Eleventh Amendment has stood for the greater principles of sovereign immunity, and I think that that's what we're talking about here.

And I think it's also been concretely held that the Eleventh Amendment in its broader principles perhaps doesn't apply to the State when it enters into an action as a plaintiff.

And I think that that's an entirely different... I'm sorry.

Justice Breyer: No.

I... I want to ask you a... a kind of question which is subsumed... a narrower question which is subsumed within the broader one, and that is let's... let's put this situation aside and assume that we have the... the conflict-free situation in which the employees have their own counsel and the... the State is... is represented simply by... by separate counsel.

The employees want to remove and the State, as... as a defendant separately represented, agrees to the removal.

On your theory, as I understand it, the State would still be able at a later time to claim its immunity because the legislature had not authorized that removal.

Is that correct?

Mr. Orland: It's not that the legislature hasn't authorized the removal.

It's that the legislature hasn't authorized a waiver of the State's immunity.

Justice Breyer: All right.

And... and so, in... in that particular case that I... I posed to you in which we have separately represented defendants, the State consents to the removal.

The State still would not have lost its immunity by consenting to the removal.

Mr. Orland: No, it would not, Your Honor, and I think--

Justice Breyer: All right.

Now, in that situation then, how do you answer the argument that came up in the briefs that that would give the... the State the opportunity to sit back and see how things go?

And if the... if the case turns out well for them, they can claim the... the judgment.

If the State doesn't go well for them, they can simply raise the question of immunity not only to escape the judgment, but to escape any estoppel later on.

I mean, is... is there any answer to that, or do you simply say, yup, that's a great position to be in and that's our position?

Mr. Orland: --Well, Your Honor, first of all, I would say that that is a different situation.

Obviously the Court knows that.

But this Court's jurisprudence is consistent with the State being able to assert its Eleventh Amendment immunity at any time.

The Court has not differed from that jurisprudence.

But what I would point out in this case is the State was very up-front from the beginning.

This wasn't--

Justice Breyer: No, I'm not talking about this situation.

I'm talking about where your position leads us.

And I take it that your position does lead us to the... to the sort of the options that... that I've just described.

Mr. Orland: --Your Honor, it does but... and I think that that would be consistent with this Court's jurisprudence.

But at the same time, I would suggest that the State has a vested interest in not going to trial at all.

So, I would suggest that since Ford, there probably haven't been a lot of situations where the State has been in a position of litigating a case to the end, and it hasn't come up since Ford.

So, I think that that's fairly significant.

Justice Scalia: Ms. Orland, what if... what if your... your State attorney general brings suit in Federal court?

Mr. Orland: Then the Eleventh Amendment simply doesn't apply.

Justice Scalia: Why?

He has no authority to waive sovereign immunity you say.

Mr. Orland: There's no waiver of sovereign immunity--

Chief Justice Rehnquist: What about a counterclaim by the defendant?

Mr. Orland: --There's no dipping into the State's pocket.

The counterclaim can go as far as the defense.

This Court has repeatedly found that an entry into a forum or the beginning of suit allows the party being sued to defend against the claim.

But that's not the same as dipping into the State's pocket.

What the petitioner is alleging is that somehow the bifurcation of cases is an unheard of result and that it should be exchanged from the State's... thank you.

Argument of Julie C. Parsley

Chief Justice Rehnquist: Thank you, Ms. Orland.

Ms. Parsley, we'll hear from you.

Mr. Parsley: Thank you, Mr. Chief Justice, and may it please the Court: The decision to waive sovereign immunity and consent to suit traditionally rests with the State's legislature, a body uniquely able to both balance challenges to the public fisc and determine when such a waiver is both in the citizens' will and the public good.

Justice Scalia: Have we inquired, when States bring a suit in Federal court, whether the State attorney general has authority to appear?

Because, you know, when you come in Federal court and you're subject to a counterclaim.

Have we... have we asked district judges to inquire whether the State attorney general has authority to waive sovereign immunity?

Mr. Parsley: No, Your Honor, the Court has not.

Justice Scalia: We have not.

And... and is it your position that as soon as a counterclaim is filed, what?

The whole suit has to be dismissed or... or what... what happens then?

Mr. Parsley: No, Your Honor.

Our position would be that as to the... the specific compulsory counterclaim that may be litigated against the State as a plaintiff, that is permissible to the extent of the res.

In other words, when the State comes in as a plaintiff--

Justice Stevens: Excuse me.

To the extent... I didn't hear the word.

Mr. Parsley: --The res, the subject matter of the litigation.

Justice Scalia: So, you say the attorney general, even though he has no power to waive State sovereign immunity, can achieve a waiver of State sovereign immunity by bringing suit which is subject to a compulsory counterclaim.

Mr. Parsley: He does have the authority to represent the State, and presumably he has the authority also by the legislature to bring the cause of action that he is asserting with the State as a plaintiff.

Justice Scalia: So, the same here when... when he doesn't have authority to waive sovereign immunity, but he has authority to remove to Federal court.

And if that results in a waiver of sovereign immunity, so be it.

Mr. Parsley: But the two are specifically different because, as a defendant, you're looking at this... it would be an implied waiver as opposed to an express waiver.

As a plaintiff, even the United States, it has been admitted, they are not... they are also subject to waiver for compulsory counterclaims to the extent of the res.

It has been--

Chief Justice Rehnquist: Why isn't that an implied waiver too?

Brings suit... the... the State brings suit in Federal court is subject to a counterclaim.

And you're saying that the State is... is subject to adjudication of that counterclaim.

Now, there's no express waiver there.

It's just an implied waiver from bringing the action in Federal court.

Why isn't removal the same?

Mr. Parsley: --Well, that is the situation that occurred in Gardner, Your Honor, for the... for the proof of claim instance with bankruptcy litigation.

And that is... so, it is not... and it's not been seen as an implied waiver because the State has put in issue the res and the subject matter of the litigation.

But in this case--

Chief Justice Rehnquist: Well, you speak of the res of the litigation.

Supposing the State simply wants to collect a bad debt from somebody.

There's no res.

Maybe he doesn't have anything at all.

But it simply wants a money judgment against him for $100,000.

Mr. Parsley: --Yes, Your Honor.

That would be... then the State would be able--

Chief Justice Rehnquist: There's no... there's no res there.

Mr. Parsley: --But it is the subject matter of the litigation; that is, his... that would be what the State would be adjudicating.

In this instant, what distinguishes it is that the State is not transformed from a defendant to a plaintiff when it removes to Federal court, and the literal text of the Eleventh Amendment proscribes cases prosecuted against a State.

Justice Breyer: What happens under State law, say, in Texas if... it's a tort action.

It's against the State.

Everybody in your office thinks that there is no sovereign immunity, but just before the jury is about to come in, somebody dredges up a statute and says, oh, my God, we had sovereign immunity.

We forgot to make the defense.

Mr. Parsley: The Texas Supreme Court has held that sovereign immunity is subject matter jurisdiction.

Justice Breyer: So, in other words, you can come in in Texas, a jury is about to come in, you're just about to lose the case, the last minute you discover this defense, and just they'll... they'll dismiss the case?

Mr. Parsley: That actually, to my knowledge, has not happened yet.

That case was decided only a couple of years ago.

Justice Breyer: They wouldn't say you had waived it.

Mr. Parsley: No.

We... we would not assert that we have waived--

Justice Breyer: I know you wouldn't assert that.

I just wonder what the judge in Texas--

Mr. Parsley: --We would hope the judge would agree with us.

But that... and that is.

You put your finger on the point that some... that people dislike about sovereign immunity.

It does give the State superior rights in some instances to other litigants, but that is because the State is a sovereign, just like the U.S. is a sovereign.

The immunity--

Justice Scalia: --I don't... I don't object to that.

I object to... to a dog in the manger, I mean, to say one thing and then say another thing.

And here's the State saying I want to be in Federal court and... and gets there and the State says, I don't want to be in Federal court.

I mean, that... that's what I object to.

Mr. Parsley: --Well--

Justice Scalia: You can have all the sovereign immunity you want.

Just... you know, just decide whether you want it or don't want it.

Mr. Parsley: --And all... all we are really asking for, Justice Scalia, is to have the same defenses that would be available to us if the plaintiff had chosen to file the lawsuit in Federal court.

We are just employing a procedural device to bring us into Federal court so that we can adjudicate the claims of our employees and that, if we have defenses, they can be heard.

Justice O'Connor: Well, they could be adjudicated in State court, couldn't they?

The Federal issues?

Mr. Parsley: They could be.

They... they could be adjudicated in State court.

Justice O'Connor: What they don't like here is no interlocutory appeal I gather.

Mr. Parsley: Yes, that is... that's true.

Justice O'Connor: Well, that's the State's own fault.

I mean, the State could have an interlocutory appeal if it chose to do so, couldn't it?

Mr. Parsley: They could, but in the Johnson case, of course, this Court stated that the State courts do not have to have a parallel system similar to the Federal courts.

Justice Kennedy: I take it the State of Texas is not asserting that its courts are less capable of interpreting Federal law than Federal courts are?

Mr. Parsley: Not... not at all, Justice Kennedy.

Not at all.

And we don't mean any disrespect in that regard.

Justice Scalia: In fact, you prefer your interpretation of Federal law, don't you?

[Laughter]

Justice Ginsburg: It seems to me everything that you've said leads to the conclusion that this was a non-removable case from day one and that the State should not have... should not have joined that removal petition.

Mr. Parsley: Actually that... we do not agree with that because there's no clear statement in the removal statute indicating that the State would have waived its immunity had it removed.

Also, there's no section 5 power on behalf of Congress to actually abrogate the State's immunity.

So--

Justice Ginsburg: I don't get... I don't get it all.

If the State is immune from suit in the Federal court, then it seems to me it follows it has no authority to remove the case to the Federal court.

It can't initiate action.

It can't say, Federal court, hear this case, and then say, Federal court, you don't have power to hear it.

It seems the two go together.

If the Federal... if the State is not amenable to suit in Federal court, the State is not positioned to remove the case to Federal court.

Mr. Parsley: --But that would be similar to the... to the argument they made in Schacht in that you cannot remove a case with barred claims.

The removal statute does not prohibit the State... States from removing--

Justice Ginsburg: Not barred... the statute of limitations is a defense.

You're saying that the... the State has not consented to suit.

As long as it doesn't consent to suit in Federal court, it seems to me it's in a non-removable position in the State court because either it's going to consent or it's not going to consent.

If it doesn't consent, it... it doesn't have any authority to remove.

Mr. Parsley: --Well, it may be a fine distinction, but consenting to the removal, we would argue and is argued in the briefs, is not the same thing as consenting to waive our Eleventh Amendment immunity.

The only way we could actually waive our Eleventh Amendment immunity is if we were vested with that power by the legislature.

And Texas is not, Georgia is not.

And under Ford Motor Company, that's the appropriate analysis that the court would engage in, whether we were--

Justice Ginsburg: What... what do you think is at stake now?

On the... I think that you did... you did bring up the question of 1983 liability, that there... that this was not a Federal case to begin with.

Is that... is that right?

Mr. Parsley: --I believe that... that Georgia, when they moved... when they answered, they both raised Will and the Eleventh Amendment in their answer.

That is correct.

Justice Ginsburg: So, it seems to me that we are arguing over an academic question because no matter what, this case is going to return to the Georgia State court.

Mr. Parsley: It's not academic on this... for this point.

This is really a reinvigoration of the implied waiver doctrine that the Court fully rejected in College Savings Bank.

This is... the analogy is parallel to the market participation theory.

In the market... market participation theory, the State was held as having waived its immunity because it voluntarily engaged in an activity--

Justice Ginsburg: Yes, but all those could be very interesting questions.

The bottom line, no matter how you look at this case, is it goes back to the State court.

So, if... you... you had said initially no 1983 liability.

Right?

And that the Federal court should--

Mr. Parsley: --Yes, Your Honor.

Justice Ginsburg: --And I had thought that in the recent case we had said if you have that picture, the Federal court is supposed to deal with the 1983.

Wasn't it Vermont Agency?

Mr. Parsley: Yes, Vermont Agency.

The statutory question.

Justice Ginsburg: Yes, right.

Mr. Parsley: That it could be dealt with first, yes.

Justice Ginsburg: Right.

Mr. Parsley: That is entirely possible, and the district court... it would have been well advised to have done that, but the district court did not choose to do that.

Instead, it ruled on the Eleventh Amendment.

Justice Ginsburg: But in any... any way you look at this, the case ends up in... in the State court.

So, it seems to me that you really are arguing an academic question.

Mr. Parsley: Well, to the extent that the petitioner is challenging the Eleventh Circuit's judgment, they do want to remain in Federal court.

And so, therefore, they are actually challenging the judgment and not just the opinion.

So, there is a justiciable question on appeal.

I did want to say quickly that in relation to the implied waiver doctrine, that a State shouldn't have to choose between what is an otherwise legal activity, which is removal, and the forfeiture of its immunity.

Rebuttal of David Jeremy Bederman

Chief Justice Rehnquist: Thank you, Ms. Parsley.

Mr. Bederman, you have 4 minutes left.

Mr. Bederman: If I may, Justice Ginsburg, I was not entirely as helpful as I could have been in response to your earlier lines of questioning.

If I can be of assistance to the Court.

Professor Lapides, in his complaint, alleged declaratory grounds and declaratory relief at... at pages... joint appendix pages 17 and 19.

And a review of the district court's first order at petition appendix 27a, while admittedly the... the holding is not entirely crystal clear, in terms of reserving the claims against individuals in their personal capacity, although no mention is made of the nature of the relief, the cases cited by the district court maybe are indicative that in the district court's mind was the open question of the availability of declaratory relief.

Justice Scalia: Are you talking about paragraph 26 of the complaint?

Mr. Bederman: Yes, sir, I am.

Justice Scalia: Well, that just says, I want a judicial finding that what Kansas did amounts to defamation.

I take it that's a defamation claim under State law.

What has that got to do with it?

Mr. Bederman: Well, I think, of course, all paragraphs in a complaint need to be read together in view of the earlier allegations, in view of this course of conduct interfering with Professor Lapides' constitutionally granted due process rights at both paragraphs 1 and at paragraph 8 of the complaint.

I think when read together, paragraph 26 fairly raises in terms of--

Justice Breyer: Read them together.

I just read it.

What he says is I want a judicial finding that Kansas State action gives rise to a new... is defamatory, thereby giving rise to a new cause of action every time the information is published.

Okay?

Read it together so it states a Federal claim.

I'm not saying you can't.

I just want to hear it.

Mr. Bederman: --No.

I'm not sure on the bare terms of paragraph 26 that the request for declaratory relief is particularly tied to a Federal cause of action.

All I can point the Court to is both paragraphs 1 and 8 of the complaint which frame the Federal question.

If I may, in terms of... of a second point, about the concern for tactical disadvantage that the State may be put in, if the Court rules either that removal constitutes waiver, that the Georgia Supreme Court in a 1994 decision made clear that denials of qualified immunity defenses are subject to immediate certification for appeal by trial court judges.

So, I think it's extravagant to suggest that under Georgia law currently that there is no effective mechanism for the review, immediate review, of... of denials of qualified immunity defenses.

And this is more fully explained at reply brief page 11 filed by the petitioner.

If I may make one last point, and that is by no means is petitioner asserting that by virtue of removal, plaintiffs become defendants and defendants become plaintiffs.

Instead, our submission is simply that removal is a forum selection, that when the State engages in that forum selection, it is waiving, for purposes of the case and the authority of the Federal courts to adjudicate, the State's forum immunity under the Eleventh Amendment.

If there are no other--

Justice Breyer: Well, I don't mean to pursue a red horse.

I just don't want to miss something if it's there.

Where in paragraph 1 or 8 does it ask for a declaration?

Mr. Bederman: --It does... neither paragraph 1 nor 8 specifically refers to declaratory relief.

If you... if you flip to the prayer for relief at pages 18 and 19, of course, most of it is for... for monetary damages.

But, of course, the last prayer is for all relief that the court may deem just and proper.

Chief Justice Rehnquist: Thank you.

Thank you, Mr. Bederman.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Board of Trustees v. Garrett - Oral Argument

Fri, 09 Jan 2009 14:50:30 +0000

Case:

Board of Trustees v. Garrett

Media File:

99-1240_20001011-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Jeffrey S. Sutton

Chief Justice Rehnquist: We'll hear argument now in Number 99-1240, the Board of Trustees of the University of Alabama v. Patricia Garrett.

Mr. Sutton.

Mr. Sutton: Thank you, Mr. Chief Justice, may it please the Court:

In enacting the Americans with Disabilities Act in 1990, Congress invoked its powers to regulate interstate commerce and to enforce the Fourteenth Amendment.

We do not challenge Congress' authority to pass the ADA under the Commerce Clause and, indeed, doubt anyone ever would bring such an across-the-board attack on the law, yet it is precisely the virtues of the ADA as a matter of Commerce Clause legislation, its breadth of coverage, its exacting accommodation requirements, that make it unsustainable as a section 5 law.

Now, before this Court has authorized Congress to impose extra constitutional duties on the States, it has required the Congress to show that the States brought this loss of authority upon themselves first by engaging in a widespread pattern and practice of unconstitutional conduct and, second, by showing that the remedial legislation is proportionate and congruent in nature.

Justice O'Connor: Let's...

Mr. Sutton, there were congressional findings that there has been discrimination against the disabled in voting, health services, transportation, education, and so on, and there are numerous examples in the legislative record, and those are areas of traditional State control.

Do you think that those findings are somehow false, or not relevant in some way, or that the discrimination is just not unconstitutional, or what?

Mr. Sutton: Your Honor, they're exceedingly relevant, and they certainly sustain the ADA as matter of Commerce Clause legislation, but just as with Kimel and the age laws they refer only to discrimination in general.

They don't establish constitutional violations.

Justice O'Connor: Well, that's what I'm trying to press you on a little bit, because the findings in some instances are in areas that are under traditional State control.

Mr. Sutton: That's true, Your Honor, and there's no doubt if we had a situation where Congress had actually identified constitutional violations in these areas of State control, Congress would have section 5 authority.

Chief Justice Rehnquist: Did the findings distinguish at all between discrimination that was the result of the State as opposed to, say, the county or the city?

Mr. Sutton: Not at all, Your Honor.

There's no distinction whatsoever between State, city and county when it comes to constitutional violations.

It's usually just local government and State government generically put together, but the key point is in the ADA the age laws, in the statement of purpose and findings, it was exactly the same.

In fact, in the age...

Justice Breyer: Why isn't it a constitutional violation when one witness said, the Essex Junction School System said they were not hiring me because I was using a wheelchair?

Mr. Sutton: Well, Your Honor, it might well be a constitutional violation, but the fact of the matter is that particular allegation was won by just one side of the dispute.

Justice Breyer: Well, I mean, I pick that out because the SG's brief is filled with references, and we have all these amicus briefs that are filled with references along the lines I just said.

Now, if I... is it that I'm supposed to count all those, and they have a whole lot here in a huge stack of briefs, and count them all and then say, well, they're just not enough, or there are enough?

Why wouldn't, say, 200 instances like that be enough?

Mr. Sutton: Well, the first problem, Your Honor, is that it wouldn't be a remedial section 5 problem because, if those allegations are true, if there's no rational explanation for what was done they all violate State law.

They would... all 50 States by 19...

Justice Breyer: Well, they tell us, for example, that a lot of States didn't have laws, to use this case, involving cancer, or perceptions of handicap which really weren't, and then they list all kinds of flaws in those laws in these briefs, and I suppose they're probably right in terms of the facts here.

Mr. Sutton: But Your Honor, the risk is one of constitutional violation.

Justice Breyer: Well, I mean, that's what I'm asking.

That's what I'm trying to get to.

Why isn't it a constitutional violation where Congress has lots and lots of instances of States that seem to discriminate against handicapped people under instances where, given the information in front of them, for some reason or other, these handicapped people have not been able successfully to avail themselves of State law.

Mr. Sutton: Your Honor, those would be relevant if Congress had made a second finding, which is just critical and is what is exactly missing here, and that finding had been, despite this conduct by States in local areas of local control, the States weren't enforcing the very antidiscrimination laws they had on the books.

Let's draw an analogy to the race cases.

If in the early sixties every State in the country banned literacy tests, all right, banned the very thing Congress was trying to get at, it would not be enough for Congress to say literacy tests are causing problems.

They would have to make a second showing which is, the States are not enforcing their laws on the books.

Justice Breyer: So if, in fact, in the sixties, there had been discrimination in the South, and we discovered there was a State law banning racial discrimination, Congress would not have been able to pass laws against racial discrimination in your view without...

Mr. Sutton: In the early sixties they would have been, because I think in the early sixties you would have been able to show that the States, those were shams.

They were statutory Potemkin villages.

They meant nothing.

Justice Kennedy: And today?

What about today?

Mr. Sutton: There's no showing on that front, not at all, Your Honor.

There's no... Congress did not even look in the direction.

It's true they looked in the direction of... excuse me.

Justice Kennedy: Let me ask you, suppose we have a real case or a hypothetical case along the lines described by Justice Breyer, a very egregious case, a person absolutely confined to a wheelchair.

That person can't get into the court hearing on time, or can't get into a voting booth, and you have an insensitive State official.

In that single discrete case, could there be an action brought under the Equal Protection Clause to compel the access, compel access to the court, compel access to the building?

Mr. Sutton: Well, I think you've got two possible issues there, one what type of review, would that be a rational basis setting, or because it's a...

Justice Kennedy: That's why I'm asking.

Mr. Sutton: fundamental right, and so therefore would you have heightened review.

I think there would be situations in which you might bring a constitutional claim, but... and I hope I'm getting to your point...

Justice Kennedy: Would the court be wrong to say that there's a quasi... would the court be wrong to say there's a quasi-suspect class here, or suspect class?

Mr. Sutton: I don't think the issue would be changing rational basis scrutiny.

The issue would be whether it's a voting rights problem which gets heightened review, but Your Honor, the key point on voting, access to courthouses and access to voting booths, the ADA does not correct that problem.

To the extent you think that was the constitutional problem the ADA was getting at, it exempted all...

Justice Breyer: Well, what I'm trying to find out...

Chief Justice Rehnquist: Mr....

Justice Kennedy: is if there's ever an equal protection violation on a stand-alone discrete case...

Mr. Sutton: Mm-hmm.

Justice Kennedy: where a State discriminates against a person by reason of a severe handicap.

Mr. Sutton: That...

Justice Kennedy: Does that state an equal protection violation, and if it does, why is it that the courts can do what Congress cannot?

That's the line of inquiry I...

Mr. Sutton: Why is it that the courts have more authority here to limit that type of State conduct than Congress?

Justice Kennedy: Yes.

It would seem that that's one consequence of your argument, and I want you to address it.

Mr. Sutton: Well, Your Honor, I think if it were... if I were in the situation where I was saying the courts had more remedial authority than the Congress I'd have a real problem, because of course that's not what's going on.

The point of section 5 is to give Congress remedial authority.

But the point I'm trying to make on the courthouse access to buildings point is that that's not something the ADA addresses.

The Congressional Record shows that by 1990 every State in the country had an architectural barriers law that precluded the building of new buildings that didn't have access.

Justice Scalia: But you're willing to concede, apparently, that it is a constitutional violation not to make special provision in public buildings for those who are handicapped.

Mr. Sutton: Well...

Justice Scalia: That is a denial of equal protection of the laws.

Mr. Sutton: I'm not willing to concede that, Your Honor, because...

Justice Scalia: Do you know of any case that has held that?

Mr. Sutton: I don't, Your Honor and I would, in fact, point the Court to Alexander...

Justice Scalia: When Congress was speaking of discrimination could it possibly have been referring to the statutory definition of discrimination?

Mr. Sutton: Absolutely, and there's no doubt that's what they were referring to.

Justice Scalia: Is there any compatibility between that and the constitutional requirement of equal protection?

Mr. Sutton: There's not.

In fact, of all the Federal...

Justice Scalia: I don't know why you're running away from it.

It seems to me that's the core issue in this case.

Mr. Sutton...

Whether, in fact... whether, in fact, making special accommodation for those who are handicapped, or the failure to do so, is a violation of the Constitution.

I think if it is your case is a hard one.

Mr. Sutton: It's not, and there's no Federal civil rights statute...

Justice Stevens: But Mr. Sutton, isn't this an employment case rather than an access case?

Mr. Sutton: Well, Your Honor, it's a challenge to the ADA across the board.

There's just one abrogation...

Justice Stevens: But the particular claims are employment claims, and is it not at least theoretically possible that refusal of employment to a person because of a handicap would be an equal protection violation, regardless of whether the access provision was?

Mr. Sutton: Well, if there were only arbitrary justifications for a decision...

Justice Stevens: Should they have ruled...

Mr. Sutton: you have no problem.

Justice Stevens: that nobody with an artificial limb can ever have a job of a certain character?

You could say that wouldn't pass the rational basis test, couldn't you?

Mr. Sutton: There's no evidence, Your Honor, that there are any such State laws...

Justice Stevens: No, but in that kind of a hypothetical you would agree that that could be a constitutional violation?

Mr. Sutton: If there were... no... if all you had were arbitrary justifications for that law, of course you would.

That's City of Cleburne, and that's all of the equal protection cases.

Justice Scalia: If there were no rational basis for it, in other words.

Mr. Sutton: Absolutely, Your Honor.

Justice Scalia: But there might be a rational basis for refusing to hire a teacher who was in a wheelchair...

Mr. Sutton: If this Court's...

Justice Scalia: if only that the school is not properly equipped to accommodate such a teacher.

Mr. Sutton: This Court said that very thing in a case involving the Federal Government, where it said budgetary constraints alone can state a rational basis.

Chief Justice Rehnquist: How about Justice Stevens' hypothesis, a man with an artificial limb turned down for a teacher, just without any real basis for it, you know, we're just afraid we might not be able to handle you.

Mr. Sutton: Well, if there...

Chief Justice Rehnquist: That would be arbitrary.

Mr. Sutton: I think that is arbitrary, and I think that would be a problem.

The question, though, is whether there was evidence of that going on in the eighties, number 1, and number 2, were State laws against that very thing not being enforced.

Justice Stevens: Well, assuming there was evidence of that kind of discrimination, I really don't understand the argument that the fact that there are State remedies also available makes it impermissible for there to be a Federal remedy.

Mr. Sutton: Oh, there can be a Federal remedy, and that's why the Commerce Clause legislation is fine.

The question is whether you can trump...

Justice Stevens: No, I...

Mr. Sutton: the Tenth or Eleventh Amendment.

Justice Stevens: Why couldn't there be a Fourteenth Amendment Federal remedy, even though there also was a State remedy?

I don't quite understand the thrust of your main argument.

Mr. Sutton: Because the very point of section 5 is to correct State conduct that violates the Constitution, and if the States aren't violating the Constitution, one...

Justice Stevens: Yes, but the fact that a State remedy exists does not necessarily mean that discrimination is not taking place.

Mr. Sutton: I agree entirely, and that's why one has to look at whether the State laws are being enforced.

Justice Souter: So I take it if you went back to Justice Breyer's example and used the hypothesis of maybe 200 examples... I don't know how many we've got, but maybe that many were adduced... and in each of those instances Congress had said not only, we find here is an example of an instance of discrimination, but Congress had also expressly said, and we find that in this example there was no enforcement of State law to correct it, and it had matched its 200 examples with 200 examples of State failure to enforce, do I understand your position to be that then there would be an adequate legislative predicate under section 5?

Mr. Sutton: Yes, and I... the answer is yes, but I just want to...

Justice Souter: So that if you win this case, Congress could go back and dredge up from its record its 200 examples and, if Congress said well, we now... you know, we've checked into this, and in each of these examples there was no State enforcement, Congress could then pass the act again under section 5 and it would... on your view would be valid?

Mr. Sutton: No.

Yes to the first, but no to the second.

Chief Justice Rehnquist: Okay.

Mr. Sutton: The second problem with the ADA is, it's unlike any section 5 law to my knowledge ever enacted, and certainly ever upheld by the Court, in the sense that it truly is a constitutional amendment in section 5 clothing.

It applies not just to every State, but every form of Government service that ever existed or ever will exist.

That truly is evading Article 5 and the requirement that two-thirds of each House approve a constitutional amendment and, most importantly, the States, three-fourths of them, get an opportunity to change it, and that's exactly what would happen, and that's what would be very risky about allowing that hypothetical to justify the ADA.

Justice Ginsburg: Mr. Sutton, would you... I thought we were talking just about the employment section, those of the ADA, but you're saying no, it's broader than that.

Mr. Sutton: Your Honor, we've briefed the case that it is all of the ADA.

There's just one abrogation provision that applies to, you know, title I, title II, and title IV, so I'm not sure how you could slice it that we're just dealing with employment, but if, Your Honor, we were dealing with employment, and you had Justice Souter's hypothetical, 200 instances, just employment, States refusing to enforce, sure, you would have a problem.

Chief Justice Rehnquist: Well, you would want to know, wouldn't you, Mr. Sutton, whether these 200 instances were, quote, discrimination, close quote, in the sense that Congress used it, or discrimination in the sense that it's used in the City of Cleburne...

Mr. Sutton: Well, I...

Chief Justice Rehnquist: as that's different.

Mr. Sutton: Well, I assume, Justice Souter, that's what you were saying.

Yes.

I mean, absolutely.

But my... if we're going to talk about this solely as an employment case, which is fine by us, we're perfectly agnostic about the issue, this case is Kimel.

I mean, it's exactly like Kimel.

It's employment.

You've got, in fact, a greater gap between a statutory standard and a constitutional standard, and an equally anemic record when it comes to constitutional violations.

I mean, even...

Justice Souter: Well, the difference that I wondered about is, Kimel I thought was ambiguous as to whether or not a rational basis test applies, and I'd be interested... I know you're probably aware of the argument, the SG makes it, that rational basis is a test that courts have created in order not to intrude upon the province of the legislature.

But there is no reason to have the province of the legislature not intruding upon the province of the legislature and, therefore, you don't need to apply that strict a matter and should respect the congressional judgment that, in fact, there is unreasonable discrimination being exhibited in these States against handicapped people.

I would like to get your response to that kind of an argument.

Mr. Sutton: Yes, Your Honor.

It's an important point.

There's no doubt that when it comes to run-of-the-mill legislation, City of Cleburne is right.

We need that authority to enact these 50 State laws and the 30 Federal laws that protect the rights of the disabled, so there's just no doubt about that at all.

But in the section 5 context you've got two other issues, the relationship between this Court and its final Marbury power and the relationship between the Congress and the States, and that's why the section 5 inquiries are always different.

You've got a zero sum game.

Congress' gain is invariably the State's loss, and just as Congress gets a presumption of constitutionality in enacting these 30 Federal disability laws, so do the States get a presumption of constitutionality that when they pass these 50 State laws, 1) they're presumptively good and 2) they're enforcing them.

Now, that can... you know, that's not dispositive, of course.

Ultimately, if it turns out the States aren't enforcing them, they're just shams, well then they're got a problem and, you know, that's why the voting rights laws are...

Justice Souter: I don't think the issue is one that is encompassed by getting into presumptions of constitutionality.

The issue, I think, that's getting raised is one about, let's say the competence of the courts to make judgments, particularly when we get into the rational basis area to make sound judgments and it seems that the courts are not as good second-guessers there, perhaps, as legislatures may be.

But the fact is, Congress is a legislature, and it is not laboring under the judicial disability as a second-guesser, so why do we... I mean, I go back to the question raised.

Why should we apply the same standard that we would if we were dealing with a court's review?

Mr. Sutton: Well, I hope I'm answering both questions.

If one is concerned about the institutional capacity of the courts versus Congress in this area, the last thing this Court should be doing in this case is making ultimately these section 5 findings itself, okay.

So if you're going to agree with Justice Breyer and the suggestion in your question, Justice Souter, that there has to be a little more deference to Congress in this area, the last thing the Court should be doing is in a situation where they don't ask the right questions, constitutional violations as opposed to violating a statutory standard, number 1, number 2, are the State laws, all 50 of them on the books being enforced, the last thing anyone's...

Justice Souter: You're right, but this is just a question of standard, and you're saying, look, whatever standard you apply, be careful to realize that you don't have, on your view, a sufficient predicate in the record to pass muster on any standard.

That's one argument, and I think we understand that, but why should the standard be the same?

Mr. Sutton: Because, Your Honor, it's not easy being the Supreme Court and deciding what the Constitution means in all these cases, but the bottom line is the Marbury power rests here in this building.

It doesn't rest anywhere else, and clever arguments about how Congress needs more deference to find out when constitutional violations really exist is just a nice way, a polite way of putting the fact that they across the street get to decide what the Constitution means.

I don't know how else to divide it, but that is what's going on, if they can enact a law that applies to every Government services...

Justice Breyer: Can I ask you, on this very... the SG has headlined in his brief, S report number 116, at page 18, and in big letters, current Federal and State laws are inadequate.

That was right out of the Senate report, so why wouldn't that be a finding that current Federal and State laws are inadequate?

Mr. Sutton: It is a finding, it's entitled to deference, and it applies to the Commerce Clause Article I justification for passing this law.

That does not suffice to show there are constitutional violations, and certainly...

Justice Scalia: The question is, I suppose, inadequate to do what, inadequate to do the good things that need doing?

Mr. Sutton: Absolutely.

Justice Scalia: Or inadequate to assure compliance with the Constitution of the United States?

Mr. Sutton: Absolutely.

Justice Scalia: And the report doesn't say the latter.

Mr. Sutton: No, it does not and I invite everyone to read it.

That's exactly what's going on.

Chief Justice Rehnquist: All right.

Justice Breyer: That's the other question, but that's what you were answering.

Why isn't this a constitutional... if Congress finds that there are all these problems going on with the States, and the current State laws are inadequate to help these handicapped people who are discriminated against, why isn't that sufficient to show the problem that permits them to act under section 5?

Mr. Sutton: I hope... I'm fearful that I'm not... I didn't hear the question, but let me try to answer.

You can cut me off as soon as it appears I didn't hear what you were saying.

But they've got to be constitutional violations, Your Honor, and if they're not constitutional violations, they haven't asked the right question.

Justice Breyer: And they are not constitutional violations because...

Mr. Sutton: That's not the question they were asking.

The question they were asking is precisely the one Justice Scalia asked, which is, isn't... is this adequate, can we do a better job.

Of course we can do a better job.

You know, I think in 1985 the Court issued two decisions which seemed to me to get right to the heart of the matter.

Not only was it...

Justice Kennedy: Why weren't they asking about the constitutionality if they explicitly abrogate the State's immunity?

Mr. Sutton: I've no idea, Your Honor.

I've looked through the...

Justice Kennedy: They could only do that under the Fourteenth Amendment.

Mr. Sutton: That's exactly right.

Justice Kennedy: So then they must have been talking about the Fourteenth Amendment.

Mr. Sutton: Not necessarily, Your Honor.

That doesn't follow necessarily at all.

I mean, one you could have an abrogation provision, and States are free to waive on their own.

Chief Justice Rehnquist: Well, Seminole wasn't decided until 1997.

Mr. Sutton: No, until 7 years afterwards, that's exactly right, but I've looked to the Congressional Record trying to find instances where Congress was aware of the section 5 inquiry.

I found two.

One of them cites Fullilove, Representative Dellums saying there's a broad section 5 power.

Fullilove is no longer good law.

The second cites Morgan v. Katzenbach and just has a sentence that says, embracing the broader version of Morgan saying that if there's an antidiscrimination issue out there, Congress can remedy under section 5, but that's not the inquiry, and as early as 1970 it was clear that was not the inquiry in Oregon v. Mitchell, when the Court invalidated Congress' effort to lower the voting age from 21 to 18 in all States in the country.

Justice Ginsburg: Mr. Sutton, you've made something in your brief of the absence of a congressional provision to treat the Federal Government, or Federal employment on a par with private sector employment.

You emphasized that, but I didn't see the connection between that and the section 5 inquiry that's before us.

Mr. Sutton: Yes, Your Honor.

It goes to the second question, not the record issue but the proportionality issue.

Congress purported to be remedying, in their words, a national epidemic regarding disability discrimination, and they decided that in order to do that you needed money damages actions, which is really all that is at stake here in light of Ex parte Young.

How can they say that it's a proportionate and necessary tailored remedy when they're not only not imposing it on private business in many instances, but on themselves?

That just doesn't stand.

It's not only the failure to lead by example, just direction, but it doesn't show proportionality.

I mean, it proves our very point.

This was not needed.

It's not proportionate to the very problem they were trying to correct.

Justice Ginsburg: What is being imposed on State governments that's not being imposed on private employers?

Mr. Sutton: Money damages actions in public accommodations requirement.

Title II applies to any form of discrimination plus access to public services.

Under title III those provisions, most of those provisions are extended to private businesses, and there are no money damages remedies there, which really proves the difference between the State's ability to lobby, and private businesses.

Justice Ginsburg: But with respect to the kinds of cases that we're dealing with, with employment, there are money damages against individuals.

Mr. Sutton: That's true, Your Honor.

I mean, again... but if this is an employment case, which is fine by us, it really is controlled by Kimel, because the gap between the statutory standard and the constitutional standard is even broader in this case than it was in Kimel, and then...

Justice Souter: Well, your... I'm sorry.

Justice Stevens: That's a proposition a little hard to maintain, because in the age discrimination area this Court has never found a violation of the rational basis test, but in the handicapped area we've found a bunch of violations.

Mr. Sutton: This Court has never found one against employment, Your Honor.

If we're going to stick with employment, there are none with respect to employment, zero.

Justice Stevens: But there are a number of other areas where there have been constitutional violations, but none in the age area.

Mr. Sutton: Well, I suspect, Your Honor, if we reviewed all of the Court's constitutional findings there would be cases in which an elderly person was a plaintiff and won a constitutional case.

Justice Stevens: Yes, but not that it was unconstitutional to place the discrimination on the basis of that person's age.

Mr. Sutton: I think that's true, Your Honor, but I mean, if you can remedy constitutional violations in one area by transferring it to another area, then we really should talk about the entire ADA, and talk about its biggest flaw.

Its biggest flaw that it is a section... it is a constitutional amendment in section 5 clothing.

It applies to every single form of Government service, and if they're allowed to do this, they'll do it in every area, rational basis scrutiny of all sorts.

Justice Stevens: May I ask you if you think the congressional findings might have been phrased a little differently if they'd been made after the Seminole decision?

Mr. Sutton: It's certainly possible, Your Honor, and one of the best things I think that can be done here is, instead of the Court having to engage in this section 5 inquiry on the basis of the Government lawyers after the fact, let them do it again.

But I will suggest this, Your Honor.

It is not going to be as easy as one submits to say...

Justice Stevens: It seems to me you're suggesting that we treat the Congress of the United States as a trial court and remand the case to them to prepare better findings.

Mr. Sutton: [Laughter]

Mr. Sutton: No, Your Honor.

No, Your Honor, not at all.

The ADA would be invalid.

12202, Section 12202 would be invalid, and it would be up to them to decide what they wanted to do.

In fact, in City of Boerne this Court invalidated the RFRA.

They're back at it again.

They're entitled to do that.

I will submit that there is a bright line here.

It's constitutional violations.

U.S. Senators, U.S. House of Representatives Members are not going to lightly find States are violating the Constitution, but we want them to ask that question.

That's the very point of section 5.

We want them to look out, root out this type of invidious discrimination, and if it's going on, have them ask the right question, identify it, and end it.

Justice Souter: May I go back to the remedy question that Justice Ginsburg raised?

Is it your position that with respect to the damages remedy that you zeroed in on, that that would fail the proportionality test unless the same remedy were applied to the National Government and to private employers generally?

Is that the position that you're taking?

Mr. Sutton: Your Honor, it certainly helps our case and it makes it a lot easier, but to be candid with you, if they imposed this same remedy on the Federal Government, I think they would still have problem, precisely because it applies to every Government service, but it just makes it...

Justice Souter: Well, it may not be sufficient, but is it your position that it would be necessary to survive the proportionality...

Mr. Sutton: Not in this case, Your Honor.

The breadth of coverage and the gap between the statutory and constitutional standards are enough in this case.

If I could reserve the rest of my time for rebuttal.

Chief Justice Rehnquist: Very well, Mr. Sutton.

Mr. Sutton: Thank you.

Argument of Michael Gottesman

Chief Justice Rehnquist: Mr. Gottesman, we'll hear from you.

Mr. Gottesman: Thank you, Mr. Chief Justice, and may it please the Court:

I want to begin by responding to what Mr. Sutton said in his opening, that the ADA rests securely on the Commerce Clause.

No State would ever challenge that, and so what's at issue here is quite narrow.

Indeed, States are challenging in the lower courts the Commerce Clause predicate for title II of the ADA, and they are arguing that in light of this Court's decisions in Lopez and Morrison that so many State activities and programs are not commercial in character and, thus, cannot be reached by the Commerce Clause, so that were this Court to hold that the ADA is not proper Fourteenth Amendment legislation, there is significant danger that the ADA would be without a constitutional...

Justice Ginsburg: But has... Mr. Gottesman, has any court bought that argument?

After all, there is the Garcia case to deal with, and...

Mr. Gottesman: So far there is one district court that has bought the argument, Pierce v. King, 918 F. Supp. 932.

The issue is now pending in several courts of appeals on appeals by the State.

Chief Justice Rehnquist: This would be an argument that could be made only by the State, not by a county or a city, I take it.

Mr. Gottesman: Well, no, because a county or a city... if you take the Fourteenth Amendment away, the Fourteenth Amendment argument... the Eleventh Amendment argument is available, of course, only to a State, but if you say that the ADA is not grounded in the Fourteenth Amendment and courts later hold that it is not grounded in the Commerce Clause, then it is not appropriate legislation directed to either, as we understand it.

Justice Scalia: I would think that if you lose the Commerce Clause challenge the least of your worries is the States.

You're going to have many more businesses who employ people, that they're going to be exempt.

Mr. Gottesman: Well, except only... title II applies only to the States, and so it, losing title II is losing... I'm sorry.

In that sense it applies to State and local governments, and if it goes down under the Commerce Clause then State and local governments will not be governed by title II.

Justice O'Connor: Mr. Gottesman, I'm not sure that the record here presents much in the way of a title II claim.

I know the Ninth Circuit has said that all employment disputes under the ADA are covered only by title I, not title II, that title II addresses public services, and I know the grant of certiorari covered both, ostensibly, because the plaintiffs' cause of action appeared to address both, and I think this Court probably hasn't decided whether all employment cases fall under title I, but if we thought they did, do we have to address the title II issue?

Mr. Gottesman: Well, no.

If you resolved in this case, although the question is not presented, the conflict among the circuits as to whether employment discrimination also violates title II, and if you decided, adversely to our position, that it does, the position we advanced in the lower courts, then yes, only title I would apply to employment, and only it would be at issue.

But we would hope that before this Court resolved that important issue that has divided the courts of appeals, that there would be an opportunity for briefing.

In this case, the petitioners never raised an objection to title II's application to employment, so it never became an issue in this case.

Now, I want to turn to the merits of the Fourteenth Amendment argument and we want to suggest as a preliminary petitioners have never really acknowledged an important body of Fourteenth Amendment decisional law, which is that even when we're dealing with groups or classifications that are covered by the rational basis standard, it is irrational for a State to act with a purpose that is irrational.

A number of Supreme Court decisions have held that State action that rests on invidious prejudice, irrational fear, false stereotypes that have evolved from those prejudices and fears, desires not to be discomforted by association with disfavored classes, patronization, if that's what actually motivates a State decision, that itself provides the irrationality which violates the Fourteenth Amendment.

Justice Scalia: And how does one usually determine that?

I mean, I would usually consider it to be irrational and motivated by prejudice when there's no practical reason for it.

Doesn't it boil down to the same thing?

You look to see whether, indeed, there's a rational basis for what's been done.

If there's no rational basis, you say it must be motivated by, you know, irrational prejudice or stereotyping, or whatever.

Mr. Gottesman: Well, surely it's the case that when we see that there could be no rational basis, that will fuel our conclusion.

Justice Scalia: I'm not sure it advances the ball.

I think the two boil down to the same.

Mr. Gottesman: But the irrational purpose prong of Fourteenth Amendment jurisprudence is not limited only to those cases where it is irrational, where the decision itself would have to be irrational.

That is to say, it's a well-developed concept that a State may take an action where there could be some rational reason for the action, but we determined that reason is a pretext...

Justice Scalia: I understand.

Mr. Gottesman: that what really motivated them was hostility to the class.

Justice Scalia: I just don't know how you prove that, except by looking at whether there is, in fact, a rational basis.

How do you prove that...

Mr. Gottesman: Well, that problem of proof, Your Honor, is precisely why Congress found the need to adopt prophylaxis here, and... but I want to, before I get to that, to lay out just what Congress...

Justice Scalia: That puts the cart before the horse.

They have to have shown unconstitutional State action before they can use the prophylaxis.

Mr. Gottesman: Correct, so...

Justice Scalia: And you're saying the unconstitutional State action is going to be based upon not the realities out there, whether there was a rational basis, but whether, even though there was a rational basis, the States somehow were acting out of irrational hatred of the disabled.

How do you establish that?

Mr. Gottesman: Well...

Justice Scalia: Did Congress establish it?

Mr. Gottesman: Yes, it did.

Justice Scalia: Tell me how.

Mr. Gottesman: What it did was find that these kinds of motivated actions are widespread.

Let's just...

Chief Justice Rehnquist: I didn't catch the last word, Mr.... are what?

Mr. Gottesman: Widespread.

Chief Justice Rehnquist: Widespread.

Mr. Gottesman: Pervasive was their word.

What they said in the findings on the face of this statute is that there is pervasive prejudice, still, today, or still in 1990, when they enacted this statute, there is pervasive prejudice against persons with disabilities, a history of purposeful unequal treatment, outright intentional exclusion, stereotypical assumptions that are wholly false and linked to prejudice, and they said these animuses, or animi, have been aimed at a group which has been historically disfavored and which constitutes a discrete and insular minority.

There is a we they way in which people think about persons...

Justice Scalia: That proves that prejudice exists.

Does it prove that State action has been taken on the basis of that prejudice when there is rational basis for the State action?

Mr. Gottesman: Yes, because Congress went through enormous volumes of material that showed that State action had been taken on the basis of that prejudice.

Chief Justice Rehnquist: Let's not talk about State action for a minute, Mr. Gottesman.

Let's talk about the States and the Eleventh Amendment section.

What findings did Congress make, what examples did it use to tie in the States with this sort of irrational discrimination?

Mr. Gottesman: Fair enough, Your Honor.

Here, I will talk only about States and only about employment, because that is the narrowest focus.

As the Government's brief shows, there was an enormous volume of State discrimination across wide sectors, really everywhere, which is not surprising if you accept the premise that there are pervasive, widely held prevalent views that stigmatize and disadvantage persons with disabilities.

Justice Scalia: Now, when you say discrimination in answer to this question, you mean...

Mr. Gottesman: Fourteenth Amendment...

Justice Scalia: unconstitutional...

Mr. Gottesman: Correct.

Justice Scalia: Unconstitutional action.

Mr. Gottesman: Correct.

Congress had two... three kinds of evidence.

Number 1, it had individual incidents, and it had them in substantial number.

Chief Justice Rehnquist: By people who were acting for the State?

Mr. Gottesman: Yes.

I'll give you... here's a couple of examples.

A woman crippled by arthritis is denied a job as a teacher in a university because they don't want the students to have to look at her.

That is prejudice of a kind that would violate the Fourteenth Amendment.

Justice Scalia: What was the basis for that finding?

Mr. Gottesman: Testimony of the teacher.

Justice Scalia: Was there... of the teacher?

Mr. Gottesman: Yes.

Justice Scalia: Was there any testimony on the other side?

Mr. Gottesman: No, because the State...

Justice Scalia: Just hear one side and make a finding?

Mr. Gottesman: Well, the States were... the States spoke about this statute.

They spoke in favor of this statute.

The States told Congress, a) we have this problem, and b) State laws are inadequate to deal with it.

That's why we support the enactment of this statute.

We need the remedies.

Justice Scalia: One witness who says, the reason I didn't get promoted was my arthritis, and Congress says State... unconsitutional state discrimination.

Mr. Gottesman: There are hundreds of these, Your Honor, not one, hundreds.

But broader than that... if Your Honor wants, I'll give you some more.

A microfilmer at the Kansas Department of Transportation is fired, and he is told, the reason you are being fired is that we have now discovered that you have epilepsy.

He has throughout his tenure there been performing above the standards required for employment there.

Now, Your Honor can say...

Justice Scalia: That is unconstitutional discrimination?

Mr. Gottesman: Yes.

Justice Scalia: That is irrational discrimination?

Mr. Gottesman: Yes.

Justice Scalia: Whether it's good or bad...

Mr. Gottesman: Yes.

Justice Scalia: maybe it shouldn't exist, but you think there is no rational basis.

Mr. Gottesman: That is correct, and Congress thought that...

Justice Kennedy: On the facts of this case, could the plaintiffs have gone to a court of competent jurisdiction and established an equal protection violation?

Mr. Gottesman: They could if they could prove the motivation.

They would have to prove the motivation.

They would have the burden of proving the motivation, but yes, if Pat Garrett was demoted from her position as director of nursing because of some antipathy on the part of the person who made that decision, or some irrational, erroneous stereotype, that would be a case...

Justice Kennedy: Are there cases in the State courts, or in the lower Federal courts which have accepted this rationale?

Mr. Gottesman: Well, there are cases... because of the prior existence of section 504, we've cited in our briefs some cases that were brought.

Understandably courts don't reach constitutional questions, so they can find it violates the statute, but the findings made in those cases are that employees were denied jobs out of irrational antipathy.

Justice Kennedy: But if this is so evidently an equal protection violation, why haven't courts for the last 30, 40, 50 years routinely entertained these challenges and given relief?

Mr. Gottesman: Because it is the burden on the plaintiffs... first of all there have not been that many cases... we... let me back up for a minute.

We would not expect to see reported decisions of that.

If a plaintiff comes in and has the kind of evidence that would win an Equal Protection Clause, the odds are that case is going to get resolved before you ever see a...

Justice Kennedy: You're telling me that over the last 30 or 40 or 50 years there have been numerous cases in the courts where handicapped and disabled people have routinely made equal protection claims and prevailed?

Mr. Gottesman: No, that they have made claims and have prevailed under section 504, with the court not reaching, as it should not reach, a constitutional question if it finds that the statute was violated, but I...

Justice Stevens: Mr. Gottesman, what are your other two arguments?

You had three, I believe.

Mr. Gottesman: Yes, the three prongs.

One was the individual cases.

Second is the studies.

Congress had a number of studies of State employment.

They're all cited in our brief.

One of those studies was performed by a congressionally created committee, the Advisory Committee on Intergovernmental Relations, whose very function was to police whether Congress was overregulating the States, unnecessarily regulating the States.

Its membership consisted predominantly of State and local governmental officials, and it submitted a report to every Member of Congress while the ADA was under consideration recounting the findings of its own inquiries of State officials in which it asked State officials, can you explain why there is such a low percentage of persons with disabilities working for you?

And overwhelmingly those State officials responded, yes, the problem is that middle managers, the people who make these kinds of decisions, the personnel decisions in our State, are afflicted with negative attitudes about persons with disabilities, discomfort about working among them, myths and stereotypes about the incapacity of people with disabilities to perform jobs, things that have been... and the report goes on to say this.

Empirical studies over and over and over again have shown that these myths are false, that there is not a higher turnover rate among persons with disabilities.

Justice Scalia: Were these findings by Congress?

Mr. Gottesman: Yes.

Congress... you say are these findings by Congress.

Congress made extensive findings that these things are true, that all of these things are animating decisions.

Justice Scalia: This report that you're now describing was a report made to Congress by...

Mr. Gottesman: That's correct.

This was a report to Congress, and we cite six other reports by various... many of them conducted by the States themselves, saying we have a terrible problem.

Our supervisors have qualms about hiring people with disabilities.

They're uncomfortable with it.

So that's the second body of evidence, and the third body of evidence is the evidence that Congress had about the reality of the psychological attitudes in our society about people with disabilities.

In accommodating the spectrum, which was the report of the Civil Rights Commission, they relied upon extensive bodies of professional evidence that showed that there were four crippling attitudes that many people in our society have about people with disabilities.

They are discomforted about being around them.

They have stigmatic attitudes about them.

They think they are inferior, less than normal human beings, that they hold all kinds of erroneous stereotypes about them, that cancer is contagious, that epilepsy...

Justice Scalia: Do you think it is proper to leap from these general psychological generalizations about the society at large, and State employers in particular, to the conclusion that the States have been acting unconstitutionally?

Mr. Gottesman: My light is on, Your Honor.

Chief Justice Rehnquist: You may answer, Mr. Gottesman, briefly.

Mr. Gottesman: The point is that...

Justice Breyer: The answer is yes.

Mr. Gottesman: No, the answer is...

[Laughter]

No, the answer is, they have all three together.

It's not just, should we rely on psychiatrists.

We have the evidence of what actually is happening.

We have the acknowledgements of the State in these studies, and we have the understanding of why this is happening from the psychological studies.

Argument of Seth P. Waxman

Chief Justice Rehnquist: Thank you, Mr. Gottesman.

General Waxman, we'll hear from you.

Mr. Waxman: Mr. Chief Justice, and may it please the Court:

The question was... reference was made to the caption in the Senate report, and it also appears in the House report, of Congress' conclusion that the State remedies were inadequate, a conclusion that was also supported by the 50 State Governors' committees that examined this issue, and the question I think that Justice Scalia asked was, inadequate to do what, because that, after all, is the issue.

Now, this is a case where a statute was enacted before Seminole Tribe and before Boerne, and therefore the paradigm that this Court has created for the words, the precise magic words that we would now expect Congress to use didn't... can't, I think, fairly be imposed on a coordinate branch of Government.

But the answer, Justice Scalia, to the question, I think, is determined by reference to what the legislative record before Congress, not only when it conducted its eighteen hearings and amassed seven separate complete reports in enacting the ADA, but also when it investigated the problems that led it to create the CRIPA statute, the Constitutional Rights of Institutionalized Persons, and IDEA, and others, but looking just... looking...

Justice Kennedy: But General Waxman, it's not magic words.

The whole point of City of Boerne is that when Congress alters the Federal balance it must consider very carefully the consequences of doing so, and to say that it's simply magic words does not do justice or respect to that very fundamental principle, and the Federal...

Mr. Waxman: I absolutely...

Justice Kennedy: And the Federal balance is altered far more under the Fourteenth Amendment than it is under the Commerce Clause.

Mr. Waxman: Justice Kennedy, I agree, and I would say therefore that the question fairly put is whether the Disabilities Act sweeps more broadly than Congress could reasonably have deemed necessary to remedy and prevent the constitutional problem it found applying this Court's definition of the standard, and what it found were four things.

It found, first, that there is pervasive and widespread discrimination against the disabled, which is often the product of hostility, overbroad and irrational stereotypes, and deliberate selective indifference, the hallmarks of unconstitutional intent.

Chief Justice Rehnquist: General Waxman, do you agree with Mr. Gottesman that if the... supposing there emerged a 55-year retirement law, rational basis, relied on in Kimel, do you agree with Mr. Gottesman's suggestion that if a court could be persuaded that when the legislature acted, that they really had it in for people over 55, that that would be invalid?

Mr. Waxman: No, I... well, I don't think a court would... a court would not find that invalid, applying a rational basis standard, because this Court has had... has held that under rational basis review of legislation one looks at whether there is a conceivable rational basis that would support a distinction, and that, in fact...

Chief Justice Rehnquist: Well, but now, I don't want to put words in Mr. Gottesman's mouth, but I understood him to say that sure, rational basis, but if you could prove that although there was a rational basis for requiring people to retire at 55, if the legislature that enacted that had really been motivated by a dislike for people over 55, then it would... there would be a violation of equal protection.

Mr. Waxman: Well, Justice... Mr. Chief Justice, this Court has made clear that as a paradigm of...

Chief Justice Rehnquist: Are you in the process of answering my question?

Mr. Sutton: [Laughter]

Mr. Waxman: Was... if your question was whether I also understood Mr. Gottesman to say that, I...

[Laughter]

Chief Justice Rehnquist: No, no, no.

Mr. Sutton: [Laughter]

Chief Justice Rehnquist: Do you agree with Mr. Gottesman?

Mr. Waxman: I do not agree that a legislature that could have had a... a legislature that could have had a rational reason for doing something which, in fact, was motivated by invidious discrimination would be struck down if this Court applied rational basis review, but Cleburne, it seems to me, and the other cases in which this Court has dealt with and remarked on discrimination against the disabled points the way to the correct resolution of this case, and before I... I do want to address that, but first I'll finish...

Justice O'Connor: Well, do you think it provided rational basis as the foundation of review in Cleburne?

Mr. Waxman: In Cleburne...

Justice O'Connor: Or something more?

Mr. Waxman: Well, there is a great debate about the answer to that question, but I will answer the question on the assumption that the Court in fact applied rational basis review, but what the Court explained was that rational basis review is contextual, and context, just like applying the proportionate and congruence test, is contextual, and it requires a reference to the historical context in which it arises.

And what this Court said in Cleburne is, we are not going to look first at the facial constitutionality or unconstitutionality of this statute.

We're going to require, in the unique context of a history of pervasive invidious discrimination against the disabled, what this municipality's reasons were.

And having looked at that, it concluded that the... that it must have been motivated by an invidious intent, because the proferred reasons were not, in fact, rational.

Now, Cleburne, in the context of many other cases in which this Court and Justices of this Court have remarked on the history of pervasive invidious discrimination against the disabled, provided... essentially gave Congress the blueprint in which it acted in this case, and here's why.

Justice O'Connor: Do you think Congress can by law establish that the disabled are a discrete minority entitled to heightened scrutiny in reviewing legislation, or action by States?

Mr. Waxman: Our argument doesn't depend on it, but I think the answer from Cleburne is yes, because in Cleburne what this Court said... and I don't have the exact words in front of me... was that because discrimination against the disabled is such a complicated issue, that is, because there are reasons why differential treatment is sometimes permitted and, indeed, perhaps the Constitution sometimes requires it, that we have to give broad deference to the legislatures, and we have to let legislatures deal, as they more competently can, with this difficult problem, unless...

Chief Justice Rehnquist: We said the same thing in Kimel.

We said, rational basis scrutiny, much legislative latitude.

Mr. Waxman: Yes, Mr. Chief Justice, but what this Court said in Cleburne is, because of that unique history, absent congressional direction, we will apply, as a paradigm of judicial restraint, rational basis review.

Justice Kennedy: Well, but... I'll reread Cleburne, but Cleburne said that in order to defer to the authority of the legislature to pass a zoning law, that did not have to do with the authority of the legislature to declare a suspect class.

Mr. Waxman: That...

Justice Kennedy: That's quite different.

Mr. Waxman: And I'm not suggesting to the contrary, Justice Kennedy.

I was responding to Justice O'Connor's question about whether a legislature could instruct a court to apply a different level of scrutiny, and the language in Cleburne that says access...

Justice O'Connor: And you think Congress can do that?

Mr. Waxman: We... I believe, as Cleburne says, absent congressional direction we apply rational basis for review.

Justice Kennedy: But I persist in the point that that did not address Congress' authority and scope and prerogatives under section 5 of the Fourteenth Amendment.

That's quite different.

Mr. Waxman: I agree that that's not necessarily the case, but if I can simply point out, Justice Kennedy... this actually does go back to Justice Scalia's original question... that not only was... I mean, it is important, it is critical here to understand that not only does the Congress find a massive record of discrimination based on states of mind that are the hallmarks of constitutional intent, but also that this discrimination is the legacy of a not-too-distant past in which Government practices deliberately isolated, segregated, and withheld from the disabled fundamental rights and the chance to participate in mainstream life.

When Justice Marshall wrote, in his separate opinion in Cleburne, a statement that no Justice contradicted, that a regime of State-mandated segregation and degradation that in its virulence and bigotry rivaled and, indeed, paralleled the worst excesses of Jim Crow...

Chief Justice Rehnquist: Well now, General Waxman, are we then to look through separate opinions, dissenting opinions, and say if the majority didn't contradict them they must have been subscribed to by the whole Court?

We've never done that.

Mr. Waxman: Not at all, Justice...

Chief Justice Rehnquist: I'm surprised that you would simply cite an opinion like that, as if... unless the majority said, gee, we don't agree with that statement, it suggests the majority did agree with it.

Mr. Waxman: Mr. Chief Justice, the point I'm making is more broadly that Congress itself had before it a record not only of what was going on currently, but what had produced it.

The Civil Rights Commission prepared a report...

Chief Justice Rehnquist: What you were citing was Justice Marshall's opinion, and are you saying that Congress could rely on that?

Mr. Waxman: I'm... as an observation of historical fact, Congress could certainly rely on it, and he was not the only one in Cleburne to make that observation.

Justice Stevens, writing for himself and the Chief Justice, said that through ignorance and prejudice the mentally retarded have been subjected to a history of unfair and often grotesque mistreatment.

Chief Justice Rehnquist: Well then, one... Congress could make its record, I take it, out of statements in dissenting opinions from this Court.

Justice Scalia: I have to write more dissents and concurring opinions, I guess, if I want to be really influential.

Mr. Sutton: [Laughter]

Mr. Waxman: Mr. Chief Justice, so that I am not... I don't want to be misunderstood.

This is not an... I'm using the... Justice Marshall's categorization because I think it well-reflects the evidence that Congress itself heard.

The Civil Rights Commission report accommodating the spectrum which was submitted to Congress at its request details at great length, and was decided... and was issued before Cleburne, the history of State-sponsored intentional, pervasive isolation and segregation and...

Justice Scalia: Unconstitutional.

Justice Breyer: Did they use the words...

Mr. Waxman: Yes.

Justice Breyer: unconstitutional?

Mr. Waxman: Yes.

Forced... yes, it does.

Forced sterilization, refusal to allow...

Justice Scalia: What does?

What does?

Mr. Waxman: The...

Justice Scalia: The congressional findings here?

Mr. Waxman: The Civil Rights Commission report uses the word, unconstitutional, but whether it does or not, the practices... I don't think anybody... I don't think that Mr. Sutton would conclude that the historical practices... and I'm not suggesting they persist, but we're talking here about a section 5 authority not only to deal with a pervasive current problem, but to remedy the effects of past intentional unconstitutional discrimination.

The remedy for past segregation and isolation is integration, and that explains in part why the Disabilities Act admittedly reaches some conduct that a court applying rational basis review would not deem unconstitutional.

It's both.

It's that...

Justice Ginsburg: Mr. Waxman, is it really rational basis review?

I mean, Cleburne does... the result seems at odds with the... with just anything goes, which had been what rational basis meant.

I thought that the Cleburne decision was very much like Reed v. Reed in the gender area.

That is, the Court purported to apply rational basis, but came to a result that didn't square with any prior rational basis decision.

Mr. Waxman: The one thing one can certainly say, whatever words one uses, and Justice Stevens in his concurrence in Cleburne, as I recall it, basically says, I don't really know whether we have three distinct typologies.

I consider all of this rational basis review.

It just depends on how high the justification is and how great the reason there is to suspect that something unconstitutional may be going on.

But it is clear that what Cleburne did was, in looking at the actual administrative bureaucratic decision, as opposed to the legislative choice, require an articulation of the actual reasons in the context of alleged discrimination in this unique historical area.

And what Congress did essentially was to generalize what this Court did in Cleburne.

It took this Court's specific inquiry in Cleburne in the light of the Court, many instances in which the majority of this Court has remarked about the history of discrimination in Choate, Alexander v. Choate and other cases, and it applied it to what Congress had in front of it, which was on the one hand a body of half-a-dozen or a dozen comprehensive studies detailing a widespread problem and historic unconstitutional practices, and over 5,000 narrative accounts that the congressional task force accumulated of individual instances of discrimination against the handicapped, 600 of which addressed State or local governments which for purposes of the Fourteenth Amendment and State action have to be considered as one.

Justice Scalia: What about judicial findings, a question posed to your colleague.

One would really have expected, if this was a massive constitutional problem, that there would have been a large number of cases that had found the States guilty of unconstitutional action.

Mr. Waxman: May I...

Chief Justice Rehnquist: Yes.

Mr. Waxman: May I answer?

Chief Justice Rehnquist: Yes.

Mr. Waxman: At footnote 11 in our brief we cite some of those decisions but, as this Court recognized in Watson v. Forth Worth Bank & Trust there are many, many instances in which subconscious attitudes and prejudices cannot be proved to a judicial exactitude.

Thank you very much.

Rebuttal of Jeffrey S. Sutton

Chief Justice Rehnquist: Thank you, General Waxman.

Mr. Sutton, you have 5 minutes remaining.

Mr. Sutton: Three brief points, Your Honor.

I certainly hope City of Cleburne applied rational basis, because if it didn't the ADA has many constitutional problems.

If the... if in the area of discrimination against the disabled you apply heightened review, just consider the very problem of defining who is disabled and who is not under the law.

You're going to have underinclusiveness and overinclusiveness problems that would never survive heightened review, so let's hope it's rational basis scrutiny.

That was the very point of the law.

Second, I've not heard anything today from the other side...

Justice Ginsburg: And how do you explain the results?

I mean, one could conceive of many bases that would uphold that zoning provision, and yet the court not only didn't attempt to justify the legislation, but held the legislation to a rather stringent burden of justification.

Mr. Sutton: Your Honor, I would disagree respectfully.

When a Government lawyer comes before a court, whether at the trial level or this Court, and offers five explanations for a law that they all say are rational, it turns out they're not, they're irrational and driven by animus, they lose.

Justice Ginsburg: I thought under classic rational basis review the court was not only to listen to the Government's argument, but if there's any basis it could conceive... and surely there were bases that could be conceived...

Mr. Sutton: I...

Justice Ginsburg: that were not driven by animus...

Mr. Sutton: To be honest with you, I've never... I'm not aware that that is the Court's rule, that the Court's job is to conceive of rational basis.

I always thought that was the job of the Government lawyer to come before the court... the inquiry is not exactly what the Government did.

It's whether there's any rational explanation after the fact.

And, as this Court's decisions prove, there are probably a dozen to two dozen of them.

There are some instances where they can't come up with anything, and that's exactly what happened there.

Whether it was good lawyering, bad lawyering, the end result, everything they identified was not rational.

The second thing, I've not heard anything from the Government or the private respondents in their briefs or today about the second half of the City of Boerne inquiry.

There's nothing about proportionality and, as the Court said in Kimel, Florida Prepaid, and City of Boerne itself, the issue on proportionality is whether the statutory standard covers, quote, substantially more conduct than would be found unconstitutional.

That itself invalidates this law.

Now, the question of discrimination, whether it exists at the society or the Government level, I think this Court's decisions from 1985, one of them written, by the way, by Justice Marshall in Alexander v. Choate, Justice Marshall says in a 9-0 decision, the main problem with disability discrimination is not one of intent.

It's one of either trying too hard, needless paternalism, or not trying hard enough, unintentional neglect.

That's the problem.

That's an Article I problem, and we're happy the ADA was enacted.

The only challenges that have been made to it to our knowledge are in the prison setting, and it's about inmates and, if there's one area where maybe interstate commerce doesn't go, it's to a prison, where the very point of a prison is to keep people out of interstate commerce, so...

[Laughter]

And I don't think that's a very good example.

Unless there are any other questions...

Chief Justice Rehnquist: Thank you, Mr. Sutton.

Justice Breyer: Well, if you have a minute, I would like to go back to equal protection of the law.

Equal protection of the law might be violated where a State official has a bad reason for doing something, though he might have a good one.

As you point out, a court probably wouldn't catch that violation, because a court has to apply a rational basis test, but that's for institutional reasons, so why should we apply such a test where the institution is Congress?

So do you see what I'm... I'm trying to get...

Mr. Sutton: I understand exactly what you're saying, Your Honor.

Justice Breyer: Yes.

Mr. Sutton: But to apply the test you're suggesting is one that requires the overruling of City of Boerne.

The very point of City of Boerne...

Justice Breyer: City of Boerne, if I find City of Boerne ambiguous on this point, on the point of whether it's going to... whether a court would find a violation, or whether there is a violation, if I find it ambiguous on that point, can't I pre-crank in my institutional considerations?

Mr. Sutton: No, Your Honor.

I would suggest that's just the power to use section 5 to redefine section 1, and that is what City of Boerne says, and that's what Kimel says, also a rational basis case.

But at the most, Your Honor, if you're going to talk about individual decisions by Government officials, that's why you need a pattern and practice.

It's a very big distinction between individual officials doing something and State laws that discriminate invidiously.

That's the Voting Rights Act cases, versus City of Boerne, versus Kimel.

Thank you, Your Honor.

Chief Justice Rehnquist: Thank you, Mr. Sutton.

The case is submitted.

Attribution:

The Oyez Project

Featured:

United States v. Morrison - Oral Argument

Fri, 09 Jan 2009 14:50:15 +0000

Case:

United States v. Morrison

Media File:

99-5_20000111-argument.mp3

Related Transcript:

1999_99_5_argument.xml

Transcript:

Argument of Julie Goldscheid

Chief Justice Rehnquist: We'll hear argument now in No. 99-5, United States against Antonio J. Morrison and Christy Brzonkala v. Antonio Morrison.

Ms. Goldscheid.

Mr. Goldscheid: Mr.... Mr. Chief Justice, and may it please the Court:

Congress enacted the civil rights remedy of the Violence Against Women Act to remove one of the most persistent barriers to women's full equality and free participation in the economy discriminatory gender-based violence.

A bipartisan Congress concluded that gender-based violence substantially affects the national economy based on a 4-year legislative record through which it found that gender-based violence and the fear of that discriminatory violence deters women's travel interstate, restricts women's choice of jobs and ability to perform those jobs, reduces national productivity, and increases medical and other costs.

Each of these findings was fully supported by evidence.

For example, Congress heard from women whose batterers kept their partners from working, who wouldn't let them leave home if they did work, or who inflicted visible injuries so that they were afraid to go to work or were physically unable to show up.

Justice Scalia: Ms. Goldscheid, were all of these instances instances of gender-based violence?

Mr. Goldscheid: Not...

Justice Scalia: As I understand it, this law doesn't apply to any... to any rape or any... any violence against women.

It is only when the woman is... is selected because of her sex.

Mr. Goldscheid: That is absolutely correct.

The statute limits each individual case to claims in which a woman could...

Justice Scalia: Now, all of these... all of these instances that you're referring to that have such an effect on interstate commerce, are they all instances in which you have somebody who just hates women and is doing it for that reason?

Mr. Goldscheid: Perhaps not each and every instance, but Congress...

Justice Scalia: Most of them?

Mr. Goldscheid: Congress looked at the record as a whole and explicitly made a finding.

In the 1994 conference report, Congress specifically found that crimes of violence motivated by gender have a substantial adverse effect on interstate commerce.

Justice Scalia: Well, that's nice, but... but the instances on which that finding was based that you're now alluding to don't... aren't limited to... to gender-based violence.

Mr. Goldscheid: The finding that Congress made was rational.

Justice Scalia: I know.

I'm not talking about the finding.

I'm talking about the evidence that supports the finding.

Mr. Goldscheid: The evidence that supports the finding was in the record.

Congress also specifically found that some acts of discriminatory violence could, in fact, be discriminatory.

Justice Scalia: Well, let me... let me ask a...

Mr. Goldscheid: They cited the case of Meritor.

Justice Scalia: a similar question.

It... it follows from my last one.

If indeed non-gender-based violence against women or, for that matter, against men also has a substantial effect on interstate commerce, I suppose Congress could enact a general criminal statute against... against violence, a Federal... a Federal rape law, a Federal robbery law.

Right?

A Federal murder law?

Mr. Goldscheid: This case is entirely distinct from the hypothetical that you propose because by...

Justice Scalia: Oh, I'm aware of that.

I'm... but that's why I posed the hypothetical.

Mr. Goldscheid: By requiring discriminatory... a showing of discriminatory motivation in each instance, the Congress specifically removed these cases from the kind of constitutional shoals that the Court in Griffin v. Breckenridge was worried about.

Justice Scalia: But the justification for the statute that you're now giving us is a justification that would allow general Federal criminal laws on all subjects because all crime affects interstate commerce.

Mr. Goldscheid: As we...

Justice Scalia: Is that not... is that not so?

Mr. Goldscheid: It's entirely possible that all crime might affect interstate commerce, but that does not lead necessarily to the conclusion that...

Justice Scalia: Well...

Mr. Goldscheid: a general tort law of the type you suggest would be constitutional.

As we set forth in our briefs, there are other factors...

Justice Scalia: I don't see why.

I don't see why.

If all that is necessary that there be some effect, even though these are not economic matters we're talking about, but that there be some effect on interstate commerce, you have a Federal Government that can legislate in the entire realm of criminal law, which is certainly not what the Founders thought they were creating.

It's very clear that they didn't think the Federal Government had general police powers.

Mr. Goldscheid: And we are not suggesting that Congress would have that authority.

Justice Scalia: Oh, I think you are suggesting that.

That's the point of my question.

Tell me why you are not suggesting it.

Is it because you think that violence in general does not substantially affect interstate commerce, although this little narrow category of violence, namely not just violence against women but violence motivated by hatred of women, that little area, substantially affects commerce.

My goodness, certainly murder, rape, robbery affect interstate commerce much more than that.

Mr. Goldscheid: Two responses to your question, Your Honor.

The first is that this Court long has held that especially when... when Congress is looking at a general social problem of the type with which it was concerned here, Congress can regulate one step at a time, and that's what it did.

So, by regulating a subset of the general activity that it was looking at, it's consistent with this Court's holdings.

In addition...

Justice Scalia: That... that would be a good response to an objection that Congress was being discriminatory in selecting only this area of... of crime and not the entire area of crime.

But that wasn't my question.

My question is, if they can do this, surely a fortiori they could enact a general Federal robbery law.

Mr. Goldscheid: And that point goes to the second part of my response to your earlier question.

Justice Scalia: Good.

It should have been your first.

Mr. Goldscheid: I'm sorry.

Which is that, as we set forth in our brief, there are other considerations to assessing whether or not a law that regulates intrastate non-commercial activity is constitutional.

And the heart of that inquiry is whether or not the law intrudes on an area of traditional State concern.

And we simply don't have that here.

This law...

Justice Scalia: Where do you get that principle from?

You see, I had thought that we had a Supremacy Clause in the Federal Constitution so that if Congress does have power under the Commerce Clause to pass a law, it automatically has power to sweep away all State laws that... that interfere with it.

Mr. Goldscheid: Congress certainly does have the authority to... to preempt State law in areas in which it has power.

Justice Scalia: So then what difference does it make that this exercise of Commerce Clause power happens not to preempt State law?

It seems to me it makes no difference at all.

If... if it is a valid exercise of Commerce Clause power, they can preempt State law.

Mr. Goldscheid: The inquiry derives from this Court's concern in the Lopez decision about obliterating the distinction between what is truly national and what is truly local.

And the standards that we have set forth in our brief identifying issues such as what was presented to Congress here, the fact that the problem with which Congress was concerned is discrimination, which is uniquely and traditionally an area of Federal concern, the fact that in this case the States have come forward and have said that they need Federal help in resolving the problem... Attorneys General from 38 States testified to Congress that the Violence Against Women in general, and the civil rights remedy in particular, was a law that would help them resolve this problem that they found to be very serious and entrenched and perplexing.

And, of course, you know that nearly three-quarters of the States' Attorneys General filed briefs with this Court in support of this law here.

And the law itself works no usurpation of any area of traditional State concern.

It leaves the traditional areas of divorce, child custody, equitable distribution expressly and entirely undisturbed.

Justice O'Connor: Well, presumably Congress could also, under your theory at least, legislate in those areas too.

If... if there's bias against women and they're not receiving adequate alimony or it's not enforceable in court in the States, then it would also have an effect on commerce.

Would it not?

Mr. Goldscheid: It might have an effect on commerce, although that scenario... if you're suggesting a scenario that... where the Federal Government would propose to overtake, say, wholeheartedly a divorce law, that would be stepping into the shoes...

Justice Ginsburg: Make it just an alternate forum as here.

You can bring your property distribution claim in State court or Federal court.

On your theory Congress, I suppose, could do that.

Mr. Goldscheid: It might well be a harder question because you are talking about an area that is more traditionally within State concern as compared to discrimination which is historically within the realm of the Federal Government.

What the law here regulates... it builds on this Court's... this country's history of anti-discrimination laws through which Congress has provided means of redress for individuals...

Justice Ginsburg: But the... but the case of marital distribution would also be based on discrimination, that is, a documented legislative history that shows that women are getting the short end of the stick in marital property distribution.

Mr. Goldscheid: And if there were such a legislative record, that would certainly be a closer case to what we have here than an over-arching, overall regulation of divorce law.

Justice Souter: All right.

Well, what if... what if Congress did pass a general murder statute?

Is it your position that... that it would be unconstitutional because it did trench upon a traditional sphere of... of State criminal regulation?

Mr. Goldscheid: It would be very different from our scenario here.

And I... I think the answer would be...

Justice Souter: Well, different enough to be unconstitutional?

Mr. Goldscheid: I... I think the answer would be yes.

First of all...

Justice Souter: And is the criterion tradition?

Mr. Goldscheid: It would be several things.

First of all, it would... it would well run afoul of this Court's decision in Griffin v. Breckenridge which said that absent a showing of discriminatory animus or discriminatory motivation in each instance, a Federal tort law would roll... could run into constitutional shoals.

Second of all, in a Federal murderer tort law...

Chief Justice Rehnquist: Thank you, Ms. Goldscheid.

Mr. Goldscheid: Thank you.

Argument of Seth P. Waxman

Chief Justice Rehnquist: General Waxman, we'll hear from you.

Mr. Waxman: Mr. Chief Justice, and may it please the Court:

The innovation of this Court's decision in United States v. Lopez was to reiterate that under the Commerce Clause there are judicially enforceable limits on Congress' authority and to explicate what those limits are.

And we think that the statute at issue in this case satisfies those limits in the following respects.

Chief Justice Rehnquist: General Waxman, is the Government supporting this... the constitutionality of this legislation both on Commerce Clause grounds and on section 5 of the Fourteenth Amendment?

Mr. Waxman: Indeed, we are, Mr. Chief Justice, and I'm prepared to make the Government's argument with respect to both.

I thought I would start on the commerce just to fill in some of the many questions that were answered.

Justice Kennedy: Let me just comment.

Your colleague had a very brief time to answer our questions.

And it... it seemed to me that when she was being pressed upon whether or not a murder statute could be enacted, she would immediately talk about discriminatory animus going to the... to the Fourteenth Amendment question.

Just confining yourself to the Commerce Clause...

Mr. Waxman: Okay.

Justice Kennedy: aspect of the case, can you address the questions the Court was asking about murder statutes and why this should be different?

Mr. Waxman: Yes.

Justice Kennedy: Just with reference to commerce.

Mr. Waxman: Yes, I will do it just with respect... with reference to commerce.

When Congress... as this Court explained... in explaining... the explanation for why it's different requires a somewhat long answer, but I have... I do have the question firmly in mind.

[Laughter]

Believe it or not, I had the question firmly in mind weeks before I came up here.

[Laughter]

My answer with respect to... let me just get to the chase and then give you the explanation.

A murder statute would be far more difficult to defend under Lopez, but without knowing what Congress found and what the factual premises were for such a statute and whether it was preemptive or... or complementary I'm not able to say, as an a priori matter, constitutional or unconstitutional.

But our defense of this statute doesn't rely on a conclusion that that would be constitutional for the following reasons.

In Lopez, this Court explicated what we take to be a four-part test in judicial scrutiny of legislation that Congress passes under the substantial effects prong of the Commerce Clause, but which is not itself either economic or commercial or part of a legislative effort to regulate or protect the specific market.

And Lopez was the first such case that this Court considered, and this one is quite arguably the second.

And what the Court said in Lopez, as we understand it in both the majority opinion, joined by five Justices, and in the concurring opinion that you... that you authored, was that Congress must... the Court must independently find four things: first, that Congress did act to protect interstate commerce

In Lopez, it was not at all clear that that was true.

The act didn't even regulate violence.

It regulated possession and only within a school.

It looked much more like an effort to regulate what schools should be doing.

Secondly, the Court...

Justice Scalia: Whereas this one is squarely directed at commerce.

Mr. Waxman: This one is squarely directed at violent conduct as... okay.

I'm coming to the next part of the test.

[Laughter]

The Court has to find also independently... and... and this was first I think explicated in Wirtz v. Maryland.

The Court must find that Congress had a rational basis to conclude that the regulated activity substantially affected commerce.

Third, the Court itself must find independently... and this I think is an innovation of Lopez... that the harm on Congress was direct and not attenuated when the activity being regulated is not itself economic.

And fourth... and this is, I think, what gets most to the question about the... the murder hypothetical.

Fourth, the Court has to find that upholding the regulation at issue does not require the Court to embrace a rule that would create what the Court said in... in Jones & Laughlin, a completely centralized Government by obliterating the distinction between national concerns and those that are truly local.

Now, the difficulty in... in other words, when Congress is... is acting with its Commerce Clause authority in this unique area where the underlying activity is not itself economic, the Court undertakes an evaluation that is not characteristic of the type of evaluation that it takes in the ordinary Commerce Clause situation where Congress is seeking to regulate a channel or an instrumentality or an activity that's inherently economic in itself, and it looks to the Federal versus the local side of the balance.

And here, unlike the...

Justice O'Connor: Well, the Court has been helped many times by finding some kind of jurisdictional hook that the conduct that took place was carried out in... in interstate commerce.

There is no such hook here.

Mr. Waxman: There is no such hook here and quite deliberately on Congress' part.

And let me answer that question and then explain the essential distinction with the murder statute.

Here Congress could have put a jurisdictional requirement that the act of gender-motivated violence affect commerce or substantially affect commerce.

And under Lopez, there would be no question of Congress' constitutional authority to do that.

But we submit that it is both not constitutionally necessary under Wirtz and the... Perez and the other cases that suggest that under the substantial effects test, it is appropriate for Congress to regulate where the class of activities substantially affects interstate commerce rather than the particular discrete action.

And that's really important here in terms of the effectiveness of this remedy for two reasons.

One... the two reasons that are quite specific to gender-based violence.

One, there are many instances of gender-based violence that don't take place in the work place or on the way to work that in fact, in and of themselves and in the fear that they instill in women, have a substantial effect on the interstate economy.

And some of them were mentioned by my colleague.

If I can go... and therefore, we think that a jurisdictional element in this case as, for example, didn't exist in Perez or in Wirtz or, for that matter, really even in Heart of Atlanta Motel, because Congress in that case simply decreed that any commercial establishment that accepted a transient guest sufficiently affected commerce... so, we don't think it's necessary, and we don't think it would be as effective.

Justice O'Connor: Well, of course, in Heart of Atlanta, you... you did have commercial businesses, the running of motels and restaurants and so forth...

Mr. Waxman: Very, very...

Justice O'Connor: as I understand it.

Mr. Waxman: very true, and we don't step back from that at all.

It was important for this Court in Heart of Atlanta Motel and in Katzenbach v. McClung to ensure itself that there was a substantial effect on commerce.

My only point...

Justice O'Connor: But your... your approach seems to me would justify a... a Federal remedy for alimony or child support or other things of that... or contract disputes because we now have a record that there's bias in State courts against women.

So, any woman entering into a contract perhaps Congress could say should have remedies in Federal court, and under your theory that would be fine.

Mr. Waxman: No.

I... I don't think under...

Justice O'Connor: No?

Mr. Waxman: my theory it would be fine.

The fact that... and I think it... it would run into problems under at least three of the factors that I've identified with respect to Lopez.

The fact that there... Congress has, of course, made no such findings.

But with respect to...

Justice O'Connor: It has made findings about bias against women in State courts.

Mr. Waxman: Indeed.

And it has found with respect to gender-based... the criminal prosecution of gender-based violence that the bias, the archaic prejudices and improper stereotypes affect the outcomes of those prosecutions or potential prosecutions in a significant number of cases.

If there were to be...

Justice Scalia: To remedy which in part it gave the States $1.9 billion to... to spend...

Mr. Waxman: Indeed, as... as part of the package that includes...

Justice Scalia: These States that are... that are just bad actors.

Mr. Waxman: Yes, as part of this... well, Justice Scalia, I... if I can just respond to your last comment.

I don't think that it is a fair reading of this statute or the findings that support it or the legislative record to suggest that Congress was on a tear to deal with the States as bad actors.

The findings apply equally to the treatment that victims of gender bias... gender-based violence get in Federal courts as well, and it's not our submission that States themselves are... have a policy of discriminating against or depriving women.

Justice Scalia: I thought that's what you had just said, that...

Mr. Waxman: No, no.

Justice Scalia: State courts...

Mr. Waxman: There... Congress found, largely by reference to the submissions by 21 State task forces and testimony of State Attorneys General and prosecutors and police, that archaic prejudices and improper stereotypes by people in the criminal justice system in a significant number of cases were affecting outcomes.

And I don't think that that could fairly be said with respect to domestic relations matters, but even if it could, Justice O'Connor, there are other significant differences here.

If this were a statute that were targeted at the core of a... of an area in which the States by history and tradition lay claim, it would raise, in this unique area of Commerce Clause regulation outside of an economic activity, a very substantial concern on the State side of the federalism balance.

Chief Justice Rehnquist: If we're... if we're talking about archaic stereotypes and so forth, are the plaintiffs going to be any better with juries in Federal court?

I mean, they come from the same pool that State court juries come from.

Mr. Waxman: Mr. Chief Justice, they... they may or may not be, and Congress didn't base its establishment of the remedy on a conclusion that they would be.

The... the establishment of the remedy... the reason that the remedy were thought by... was thought by Congress to be sufficiently efficacious... no one thinks it's going to eliminate the problem of gender... gender-motivated violence.

The reason it was thought to be sufficiently efficacious to try as part of a multi-year, multi-statute scheme is, number one, it gives the plaintiffs... it gives a category of people that Congress found may not have always had a fair chance at vindication... an alternative forum.

It gives them a civil forum.

It gives them the option of pursuing that in a Federal court under different rules with different burdens and with certain advantages and disadvantages.

And it was... this does, I think, get in... somewhat into our Fourteenth Amendment argument, but it was thought to provide a remedy with respect to both the Commerce Clause problem that commerce sought... Congress sought to address and the Fourteenth Amendment problem by providing this category of people a means to... an alternative means to obtain vindication and redress...

Justice Ginsburg: General Waxman...

Mr. Waxman: in a choice of forums.

Justice Ginsburg: from what you say, I take it that there would not need to be a jurisdictional peg for the criminal provisions of this act.

There is in fact, but am I correct in understanding you to say that that was not necessary?

Proper perhaps but not necessary.

Mr. Waxman: I... I'm not... I'm not saying that and I'm not sure that the criminal provisions of the act would satisfy this Court's standard... unlike the civil provisions would satisfy this Court's standard in Lopez without a jurisdictional provision, and here's why.

The criminal provisions of the statute are not analogs of the civil remedy provision.

The criminal provisions of the statute, which were included in a separate title and considered separate... entirely separately, address themselves to the crossing of State lines for the purpose of engaging in domestic violence or violating State protective orders.

The crossing of State lines is not just the traditional jurisdictional element whereby Congress gets to grab authority.

It's the element... it's... it's the actus reus, if you will.

And if Congress were to essentially impose a remedy... without the... without the jurisdictional element in those statutes, Congress would be doing what I think was suggested it might be doing if it directed... by Mr. Chief Justice... if it directed itself at simply saying, well, they're biased in domestic... in divorce cases, let's federalize it.

That, unlike this, would be an act in which Congress, acting in this special Commerce Clause area, would be directed directly... would be aimed directly at what the States traditionally do, and that would change the balance that I think this Court has... certainly the concurring opinion in Lopez suggests has to occur when Congress is operating at the limits of its Commerce Clause authority.

Justice Scalia: General Waxman, can you give us a single opinion in which this Court has suggested that some activities under the Commerce Clause are valid on the part of the Federal Government where they do not displace State action, but would be invalid if they do displace State action?

I'm alluding to your... your dichotomy between, I think you said, preemptive versus complementary Federal laws.

This is a new view of the Commerce Clause to me.

I had thought if the Federal Government has Commerce Clause power, it has Commerce Clause power.

Now, you're saying that it has it in some areas but only if it doesn't displace the State... State action.

Is that... is that the theory?

Mr. Waxman: Justice Scalia, I was with you entirely until the Court decided Lopez, and I think what the... and I think the reason I was with you is that the Court had never considered the... as it... as it explained, the exercise of Commerce Clause authority in an area in which it wasn't channels or... or instrumentalities of commerce, and under the substantial effects, it wasn't even activity that's economic itself or activity that protects or regulates a market.

And what we understand this Court to have announced in Lopez is that when Congress does that, there has to be a... an assurance that upholding the... the regulation does not require the Court to embrace a completely centralized government.

Justice Scalia: Where does it say that in Lopez?

I had thought what Lopez said is if the congressional action in this area is intruding into an area that is the States' exclusive concern under the Constitution, it can't do it.

I didn't see that the opinion said, well, Congress can sort of slice the bologna and say, we're going to intrude but not too much.

Where does it say that?

Mr. Waxman: Well, I... perhaps I don't have the... the opinion with me right here.

Perhaps on rebuttal...

Justice Scalia: Well, if it's the only opinion you're relying on, I... I would really, you know, like to know what language suggests that.

I...

Mr. Waxman: There is language both in the...

Justice Scalia: must have signed on to it unconsciously.

Mr. Waxman: There is language both in the majority opinion and particularly in... in the concurring opinion.

I read it from the majority opinion by the... the Court's analysis saying this... Congress is regulating under the substantial effects test and this is not activity that's economic or part of a regulation of a market.

It doesn't have a jurisdictional element, and... and then the Court goes on at great and persuasive length... if we were to accept the Government's two arguments in this case, it would obliterate the distinction.

The concurrence adds that in the instance in which Congress seeks to regulate with respect to that type of activity, it is appropriate, it is required to inquire the extent to which the Federal balance is changed.

And our submission here today is not only that this act falls on the appropriate side of the line, but that the creation of a bright line test, which is quite inconsistent with this Court's historical Commerce Clause experience that simply says if you're operating in the substantial effects area and it's not economic or identifiable to a particular market, it's invalid would be a very unwise rule for a number of reasons.

There are lots of non-economic activities that themselves have nothing to do with commerce or... or the economy that help regulate a market.

Drug and firearms possession laws, for example.

There are economic activities that threaten markets.

I'm thinking of the Federal Access to Clinic Entrances Act and, you know, acts that prohibit, you know, blocking the entrance to an exchange of some sort.

And there are other acts that deal with... directly with activities that themselves aren't economic but that themselves have substantial effects on commerce.

Justice Kennedy: If you defend the scheme as being an analog and the same and therefore not a displacement, then that seems to me to cut against your Fifth Amendment... Fourteenth Amendment argument because you're not adding any additional remedy.

It seems... it seems to me you're caught on the horns of a dilemma there.

Mr. Waxman: Well, let me... let me shift ground briefly to the Fourteenth Amendment.

Our submission with respect to the... I take it your question goes to why this is an efficacious remedy at all with respect to the Fourteenth Amendment violation that we've identified.

Is...

Justice Scalia: Yes, because you've defended it as saying it's just the same under theCommerce Clause.

Mr. Waxman: Well, no, no, no.

I...

Justice Scalia: And now you get to the Fifth Amendment, you're going to say, well, it's different.

Mr. Waxman: If I... if I said that it was just... just the same... just the same as what these plaintiffs already have available to them in State Courts, I... I mistook.

The... the Federal remedy that Congress has enacted provides them something that they didn't have before.

Now, it can be argued that they already... they already had the right to have their crimes prosecuted and in all States they already had the right to pursue a tort remedy.

But this is different.

Chief Justice Rehnquist: Thank you, Mr. Waxman.

Mr. Waxman: Thank you.

Argument of Michael E. Rosman

Chief Justice Rehnquist: Mr. Rosman, we'll hear from you.

Mr. Rosman: Mr. Chief Justice, and may it please the Court:

The question in this case is whether the enumeration of congressional powers in the Constitution provides principled, substantive limits to those powers.

For each of the two powers that are at issue today, petitioners ask this Court to go beyond its previous holdings and to enlarge those already substantial powers even further.

With respect to the Commerce Clause, this Court has not yet held that Congress can regulate any violent crime non-economic in scope and without any jurisdictional element tying it to interstate commerce in the specific instance.

With respect to section 5, this Court has not yet held that Congress can remedy violations of the section 1 prohibition against State denials of equal protection by regulating purely private behavior that could not possibly violate section 1.

Under these theories, Congress could justify laws... virtually any laws... in domestic relations law, crime, tort, areas that are traditionally governed by State law.

And as Justice Scalia noted earlier, because the power to regulate is the power to preempt, Congress could occupy the fields in these areas and relegate the States to a trivial and unimportant role in our Federal structure.

With respect to the Commerce Clause...

Justice Kennedy: The Government argues, Mr. Rosman, that... that we're in a new regime after Lopez and that what we should do for non-economic matters is not to say that absolutely the Commerce Clause power exists or doesn't exist, but rather it may exist so long as the Government doesn't go too far in displacing State activity.

What... what's wrong with that regime?

Mr. Rosman: Because it's been... as you noted earlier and... and as I just mentioned, it's been the traditional jurisprudence of this Court that the power to regulate is the power to preempt.

That is to say, if Congress has the power to regulate, it can displace State law to the extent it chooses.

Justice Stevens: But what if the Federal statute expressly says, this will not preempt State laws whatsoever?

Mr. Rosman: This statute, Your Honor?

Justice Stevens: What if... what if a Federal statute had that provision in it?

Mr. Rosman: Well, the Gun-Free School Zones Act had that provision and it was still unconstitutional.

So, I would not think that would be of significance.

What the Court focused on...

Justice Stevens: Well, if that's not significance, then the question of whether there's preemption or not is not significant either.

Mr. Rosman: That... that's correct.

Justice Souter: Oh, okay.

Mr. Rosman: It's not significant.

That would be our position.

Justice Breyer: Well, then this... this Court has had a... what I think is an unfortunate 150 or 200-year history of trying to draw some kind of line, as you are, between local and interstate effects.

Most of those have failed.

What's your line?

Mr. Rosman: Well, we think that Lopez best drew the line between economic conduct... that is to say, conduct which is connected to or arises out of a commercial transaction... and other conduct.

Justice Breyer: So, then your view is that if it turns out that, to use one of the Government's examples, people are in their own houses cooking up biological warfare or it turns out that in their own fireplaces, they pollute the air in a way that will, through global warming, swamp the east coast... or, you know, use any of their other imaginative examples... Congress is powerless to act?

Mr. Rosman: Well, with respect to the first example, Justice Breyer, I think Congress' power to suppress insurrections would...

Justice Breyer: Well, you see my point.

My point is that there are many, many, many instances of non-commercial activity, when you collect them all together, that could have overwhelming effects on interstate commerce.

And so I want to know if you think in any of those myriads of examples... I won't be too far-fetched... the Congress is powerless to act simply because the cause of the major economic impact is itself not economic.

Mr. Rosman: Yes, Justice Breyer.

We think that is the best reading of Lopez.

Justice Breyer: Then the drug laws are also unconstitutional?

Mr. Rosman: The vast majority of Federal drug laws regulate the sale, manufacture, and possession with intent to sell of drugs.

Justice Kennedy: Yes, but what about...

Justice Breyer: Any of the Federal Government's is forbidden from regulating Federal drug laws for your own use in your own house.

Mr. Rosman: Unless... well, I do know, Your Honor, that 21 U.S.C. 801 has made various findings that tried to connect the possession of drugs to the interstate sale of drugs.

Whether that would distinguish Lopez or not, I don't know.

I think it would not.

Justice Breyer: So, if I reject your idea that Congress is powerless to act where the amazingly strong commercial activity... I see.

Sorry.

Where the... where the non-commercial activity has an overwhelming effect on interstate commerce, if I say I believe there Congress is power... empowered to act, at least in some cases, would you lose?

Mr. Rosman: No, I don't think so.

I think if you would... if you read Lopez as permitting the regulation of some non-economic conduct, I think it would have to be non-economic...

Justice Scalia: And you don't read it that way?

I'm not sure what your reading is.

Mr. Rosman: No, I do.

I do read it that way.

I... I read... I read Lopez as precluding the regulation of non-economic conduct.

I was responding to Justice Breyer's question which I thought the presumption of which was that Congress could regulate non-economic conduct.

And I was responding by noting that you could read Lopez, I suppose, to permit the regulation of non-economic conduct, but it would have to be in a way that differs from... the effect would differ from the effect that virtually important problem has on...

Justice Breyer: All right.

Then suppose if you're going to... if you're going to take a less extreme position, as I think you are, in this answer, what about a test that said, where a traditional activity of a State is at issue, what we will do is require that Congress address the federalism problem and explain why it believes in this traditional area a Federal solution is needed?

Mr. Rosman: That's an interesting solution, Justice Breyer, but I don't think it really relates to the text of the Constitution which permits Congress to regulate commerce among the States.

Justice Ginsburg: Mr. Rosman, on that point, you're not challenging, are you, any of the findings that Congress made that this is, indeed, a problem that affects the national economy because it impedes women's mobility, it impedes the jobs that they can take, the times of day that they work?

You're not challenging any of those findings, are you?

Mr. Rosman: I think we're challenging them, Justice Ginsburg, in the sense that Justice Scalia suggested earlier on today, in the sense that all of the studies that were done to support that finding are much broader and don't really relate to the specific conduct, gender-based, animus-motivated violence, which is the subject of this particular statute.

Justice Souter: What... what about the... the finding that there was a $3 billion effect on... on the gross national product for goods and services, of what I understood to be gender-based violence?

Is... is that... is that too far from the... from the causal connection that would satisfy you?

Mr. Rosman: Well, first, of course, this statute doesn't regulate simply gender based conduct, but gender based and animus-motivated conduct.

Justice Souter: Right.

It regulates a subset of it.

Mr. Rosman: I don't... I don't...

Justice Souter: What about the relevance of the $3 billion figure?

Mr. Rosman: Your Honor, findings could be made about virtually any activity and its effect on interstate commerce: marriage, divorce, virtually all crime

It has...

Justice Souter: But I think what that means is you're going back to the argument that you simply cannot regulate anything but economic activity as such because if you extend regulation beyond that, there is no stopping point.

That's really your...

Mr. Rosman: That's certainly our primary argument today.

That's correct.

Justice Souter: But if... let's assume that your primary argument, that pure position, is not accepted, is... is there something insufficient about the $3 billion finding to support this kind of legislation?

Mr. Rosman: I think what we were speaking about just a moment ago, the fact that the statute doesn't regulate the particular conduct...

Justice Souter: Well, it regulates a... a subset of it, the animus kind of violence.

And... and I would suppose that... I don't know that the Government made this argument, but I would suppose that it could reasonably be argued that from a finding that gender-based violence resulted in a... in a $3 billion effect on... on the economy, loss in gross product, that... that one could also infer that probably the substantial or... or a very substantial part of the... the violence that goes to produce the $3 billion effect was animus-based violence.

At least most... most gender-based violence I presume is animus-based violence.

Mr. Rosman: Well, I think that's the assumption that Congress made, and I'm not sure...

Justice Souter: Isn't that a... isn't that a reasonable assumption?

Mr. Rosman: I'm not sure that it is.

Justice Souter: Why not?

Mr. Rosman: Well, I... I'm not sure that Congress had any basis for believing it.

I think that's the best way of putting it.

Justice Scalia: What makes you think it's the assumption Congress made?

I... I'd assumed just the opposite, that it was very clear in the... in the legislative history that Congress understood it was... it was just addressing a... a narrow... a narrow spectrum of violence against women and wasn't enacting a general rape law.

Mr. Rosman: Correct, Justice Scalia.

What I was...

Justice Scalia: So, why do you think that Congress made the assumption that all... all rape or all violence against women is... is what you call gender-based?

Mr. Rosman: Well, I think that they concluded that it somehow constitutes a significant part of the economic effects of it.

But as you point out, that's contrary to their equally... well, it's contrary to the conclusion or the statements that are made in the legislative record...

Justice Souter: Well, but the...

Mr. Rosman: that this stuff does not constitute...

Justice Souter: No.

Finish your answer.

Mr. Rosman: does not constitute a significant part of gender-based animus...

Justice Stevens: What is your view of the proper standard this Court should employ to determine the accuracy of congressional findings?

Do we review the whole legislative history and decide for ourselves whether the evidence supports the findings, or what do we do?

Mr. Rosman: I think this Court... it's unclear after Lopez precisely the standard by which one reviews...

Justice Stevens: I'm asking what your view of the proper standard is.

Mr. Rosman: Actually, Justice Stevens, we don't think it much matters because the relationship that... between the conduct being regulated and... and the amount of commerce being affected is what defeats this... not...

Justice Stevens: Then do you agree that we should assume the findings are valid, or not?

And if not, why not?

Mr. Rosman: I think, Justice Stevens, that there's reason to question the findings with respect to gender-based, animus-motivated violence, but it does not affect our argument one way or the other if you do assume it.

Justice Stevens: So, in other... you say we should take the case on the assumption that findings are supported by the evidence.

Mr. Rosman: I don't... I don't believe the findings are supported by the evidence, but as I've said, we don't think that's...

Justice Stevens: But then I asked you what standard should we use to determine whether or not there are findings supported by the evidence.

Mr. Rosman: I see what you're saying.

In determining empirical effects, effects on the national economy, this Court can review under a rational basis test.

The question whether or not, though, the activity being regulated substantially affects interstate commerce is somewhat different.

This Court focused on two factors in making that determination in Lopez.

First, the nature of the activity being...

Justice Stevens: Well, Lopez doesn't address this question because there were no findings in Lopez.

And what I'm particularly interested in is your view of, one, what is the standard by which we should review the findings, if they're going to be reviewed, and secondly, does it matter whether we accept the findings or not?

And I'm not really clear on what your answer is to either of those questions.

Mr. Rosman: The answer to the second question is that it doesn't matter, and it doesn't matter...

Justice Stevens: Which means we can accept the findings and decide the case on the assumption they're valid in your view.

Mr. Rosman: Yes.

You can... you can still... you can still accept the findings and nonetheless affirm the judgment of the Fourth Circuit.

Justice Kennedy: Do you know of any case of ours that turned on the existence or non-existence of congressional findings?

Mr. Rosman: I do not, no.

Justice Kennedy: Do... have we said...

Justice Stevens: Have you read the Lopez opinion which makes quite a point of the absence of findings?

Unidentified Justice: [Laughter]

Mr. Rosman: I have, Justice Stevens, and I don't think it does make that much of a point of the absence of findings.

I think that the Fifth Circuit opinion in Lopez made a great deal of the absence of findings, but I think that this Court wrote a much, much different opinion.

This Court focused on the nature of the activity being regulated and the absence of a jurisdictional element.

It was set forth in the very first paragraph of the opinion and repeated throughout.

The possession of guns around schools was a non-economic activity, and that was so even though schools themselves buy things and employ people and, no doubt, have to divert resources when the violence is threatened.

Justice Scalia: Mr. Rosman, I'm concerned about, you know, the line you're... you're urging us to adopt that it has to be an economic activity.

I mean, you know, what about a gang that... the Jesse James gang that... that robs interstate trains?

That's what they do.

Violence directed against the actual organs of commerce.

We... the Federal Government would have no power to control that?

Mr. Rosman: Well, presumably that would fall under Congress' power to regulate the instrumentalities of commerce.

Chief Justice Rehnquist: Well, from Jesse James' point of view, it was economic.

[Laughter]

Mr. Rosman: Yes.

That's... it certainly was.

There are going to be, Justice Scalia...

Justice Scalia: Oh, I see.

So, all robbery is economic activity in your... in your estimation.

We can have a general Federal robbery statute because, after all, it's economic activity.

Mr. Rosman: I'm not sure that's the case because robbery is sort of... if you think of commerce as voluntary exchange, robbery is not commerce.

Justice Scalia: Well, but surely you have to broaden your... your argument to say beyond mere economic activity.

It has to be... you have to allow some ability of the Federal Government to reach activity that is directed against commerce whether it's economic activity in and of itself or not.

Mr. Rosman: Oh, the... the standard in Lopez and what I had understood the definition of economic activity to be was activity that arises out of or is connected to commercial activity.

Justice Souter: So, would you say that if an act of violence were... were committed simply for the... for the purpose of... of slowing the flow of goods in... in interstate activity that in fact that would, therefore, be subject to... to congressional regulation?

Mr. Rosman: I think that would constitute economic activity as the Court defined it in Lopez.

Justice Souter: Or even an act of violence on an interstate train or on an airline traveling interstate.

Mr. Rosman: Yes.

That's... that's correct.

If the purpose of the act is to disturb commercial activity...

Justice Souter: No, I don't care about its purpose.

That isn't its purpose.

The purpose was to get money from the passengers, but... but in fact it occurred in... in the stream of commerce.

Mr. Rosman: Well, I think the purpose is of some consequence, but I would agree with you that the particular examples that you identified would probably constitute economic conduct, as the Court identified it in Lopez.

Justice Souter: But your test, in any case... you've changed... not only you've changed it, but you've... you've modified your statement of your test to this extent.

Originally I thought the test was Congress could regulate only economic activity as such under the substantial effects prong.

But I take it now you're saying it may regulate economic activity as such and it may regulate non-economic activity if that activity was intended to affect economic activity.

Mr. Rosman: Well, that's... it certainly can do that, Justice Souter.

And I had understood... I had understood Lopez, when he characterized or described economic activity, to include activity connected to a commercial transaction, and I think that would fall...

Justice Souter: By... by intent for...

Mr. Rosman: Yes.

Justice Stevens: May I give you one example I'd be interested in your views on?

Assume a person wants to grow marijuana in his back yard for his own use and for no other purpose.

Could... does Congress have the power to prohibit that activity?

Mr. Rosman: I don't think so, Justice Stevens.

Justice Stevens: That's what I thought your view would be.

Mr. Rosman: And... and I would...

Justice Scalia: As opposed to wheat?

I mean, marijuana is different from wheat?

Is that...

[Laughter]

Mr. Rosman: Well, it... it... I was... I was going to provide that caveat, Justice Scalia...

[Laughter]

Justice Souter: Yes, but let's... let's assume...

Mr. Rosman: that... that in...

Justice Souter: let's assume the marijuana grower says I want to grow it in my back yard solely for my own use because I am sick of being gouged by the interstate marijuana market.

[Laughter]

Doesn't... doesn't that pass muster with you?

Mr. Rosman: There's always going to be some close cases.

I think the specific...

[Laughter]

I think the specific example...

Justice Souter: I thought I gave you an easy one.

[Laughter]

Justice Scalia: That's not a close case under our precedents.

It's not a close case at all.

Justice Souter: Well, I think it is a close case.

Justice Breyer: What if wheat... he's growing wheat in his back yard to eat?

Justice Stevens: Let me just pursue this, please, for this one thing.

Regulating a lawful market in wheat is one thing.

Regulating a... commerce in something that's forbidden to be sold is quite a different thing, and that's why I think you're quite right in saying that under your theory you could not... Congress would not have the power to prohibit mere possession of marijuana even though they would have the power to regulate possession and growth of wheat.

Mr. Rosman: I think there is that difference, Justice Stevens.

Thank you.

And what I was trying to say is that...

Justice Scalia: I see.

You... you read the Commerce Clause that Congress has the power to regulate lawful commerce.

Right?

Unlawful commerce, the sky is the limit.

[Laughter]

Congress has no power to regulate that.

Is that it?

Mr. Rosman: If... no, it has the power to regulate unlawful commerce.

The question is the... is the possession... the regulation of possession so necessary to the prohibition of marijuana in interstate commerce that Congress should be able to reach it, just as it was able to reach the growing of wheat in Wickard.

That's the question that needs to be answered before I could come up with a definitive response to the hypotheticals that have been given to me.

Justice Ginsburg: Mr. Rosman, can we return to gender-based violence?

Mr. Rosman: I'd like to, yes.

[Laughter]

Justice Ginsburg: And I thought you said, at least for purposes of this argument, you're willing to accept the findings that Congress made that this does, indeed, deter women's full participation in the national economy.

In taking a look at what Congress did here, they didn't do the things that this Congress has said they can.

They didn't commandeer any State legislators.

They did not displace the State legal system.

They just provided an alternate remedy in an alternate forum.

Now, why can't Congress do that if they say, here's the effect on commerce?

We're not taking over the States' domain.

We are just complementing what the States do.

It's another auxiliary action just as giving them money for training is permitted.

Why isn't that satisfactory?

Mr. Rosman: First, Justice Ginsburg, as we spoke about earlier, it's our view that the power to regulate is the power to preempt so that whether or not Congress has exercised that power in a specific instance ought not to determine whether something is within Congress' commerce power.

Second, we do think that this statute does displace some State policies in the same way that the Gun-Free School Zones Act displaced some State prerogatives.

After all, the Gun-Free School Zones Act didn't preempt anything at all, and yet this Court held that it was beyond Congress' commerce power.

What's being regulated here, of course, is conduct...

Justice Ginsburg: Could you just tell me what... what is the clash here?

Because I'm not sure I understand it.

Mr. Rosman: For example, there are various assumptions under the common law between... about parental immunities and torts between people in the same family.

This statute says when you consider whether or not something is or is not a felony, you must disregard the relationship.

Justice Ginsburg: And if you're in a State that... that has a similar statute, then there's no clash.

Mr. Rosman: If a State had a similar... I'm sorry... a statute that disregarded the relationship?

Justice Ginsburg: That was just like the Federal remedy.

Mr. Rosman: Yes, by... by definition if they have exactly the same statute, there would be no clash.

But virtually all States have a basic common law presumption about contact and torts within a family that this statute asks the Federal Government, the judiciary, to ignore.

Justice Ginsburg: Well, let's lay aside that for a moment and take this case that's before us.

There's no question of family relationship here.

Mr. Rosman: No, just as there was no particular conflict in Lopez.

There was a statute in Texas which did the same thing as... as the Federal statute.

Justice Scalia: May I ask you another question about a modest change in this statute?

Say... assume this statute had a requirement of proving a jurisdictional fact in each case, such as in a gun case, you have to prove the gun traveled in interstate commerce.

Supposing here a part of the cause of action was that the plaintiff had to prove that as a result of the act she sued on, she was unable to enter the labor market or unable to go to school or something like that.

Would that save the statute in your view?

Mr. Rosman: It would certainly be a different statute.

Justice Scalia: I understand it would be different.

Do you think it would save the statute in your view?

Mr. Rosman: I think... I think the jurisdictional element was one of the two elements that Lopez identified, and that, yes, it could very well.

Justice Kennedy: My question is, do you think it would save the statute if it had that element in this case?

Mr. Rosman: Without a little more knowledge about the exact jurisdictional element that you'd be adding, I think it would be impossible to say for sure.

But yes, it would be a much closer case and Congress, I think, by adding jurisdictional elements in general... your general idea of saving this kind of statute by adding jurisdictional elements we agree with.

Justice Kennedy: Can we talk for a few minutes about the Fourteenth Amendment argument?

Mr. Rosman: Sure, I'd love to.

Justice Kennedy: Suppose that Congress finds... and there's substantial evidence for the finding... that if black people are assaulted, prosecutors do not treat the crime as seriously as they do if there's a white person assaulted.

Could Congress pass a two part statute, severable: one, making it a Federal crime to assault a black person on... on account of his race; two, giving a civil remedy to a black person who was assaulted so that the black person could sue the white person

Mr. Rosman: Well, they certainly could do so, Justice Kennedy, but they'd be doing...

Justice Kennedy: Under its Fourteenth Amendment powers.

Mr. Rosman: Oh.

Then I think the answer is no, that they could not.

And the reason derives from the text of the constitutional provision.

The constitutional provision states that Congress shall enforce the prohibitions in section 1.

The prohibitions in section 1 are against the States.

It says no State shall do this, no State shall do that.

Justice Kennedy: Would you agree that in my hypothetical I've established that there is a general denial of equal protection?

Mr. Rosman: Yes, in your hypothetical I believe there was.

Justice Kennedy: But you're saying...

Mr. Rosman: Assuming that States were acting...

Justice Kennedy: that Congress is so limited in the remedies that it can choose, that it cannot create a private cause of action, which is really in a sense... we can argue about this, but in one sense less intrusive on that States?

Mr. Rosman: Well, the Fourteenth Amendment is intrusive on the States, Justice Kennedy, and this Court specifically considered statutes along the lines of what you're describing in United States v. Harris and the civil rights cases.

Congress...

Justice Breyer: I wouldn't think they made the argument that Justice Kennedy advanced; that is, as I understood his question, there is a clear finding that the State in its courts or in its legal system says where a black man and a white man are fighting it out in our legal system, the white man always wins, for example.

And so, to remedy that situation, to remedy that... nothing to do with the white man who's always winning... to remedy the failure of the court system to apply the law equally, we create an optional Federal remedy.

That's what I took as his basic question.

And my response to your answer would be could you explain it.

Why isn't that a perfectly good remedy for a State's failure to follow the Equal Protection Clause?

Mr. Rosman: First, as we've set forth in our brief, we think that's exactly the situation that existed in the civil rights cases.

Justice Breyer: That may be.

If it is, they didn't address the argument, and therefore, I would like to know the reasoning as to why that isn't a remedy for the State's deprivation of equal protection of the law.

Mr. Rosman: Because the text of the statute says that Congress will enforce the prohibitions...

Justice Breyer: They are enforcing the Equal Protection Clause.

The Equal Protection Clause... State, treat black people and white people alike.

State, you have failed to do that.

Therefore, we enforce that by giving the black person this Federal remedy.

Mr. Rosman: I don't believe that would be enforcement litigation because it would be doing... legislation... it would be doing nothing to the States to get them to comply with the Fourteenth Amendment.

It would be as if Congress decided that instead of having schools in the south to segregate in the 1950's, they would offer separate Federal schools.

That would not be enforcement legislation.

The proper... proper interpretation of section 5 is that Congress must do something so that the States are no longer engaging in the conduct which violates section 1.

Justice Scalia: You're saying section 5 does not provide, as a remedy for the State's failure to abide by the Constitution, the Federal Government's abolition of the Federal system.

Mr. Rosman: That's correct, Justice Scalia.

That's a very succinct way of putting it.

Yes.

Justice Ginsburg: Mr. Rosman, can... can I ask why, if we have in so many fields involving discrimination, parallel State and Federal regulation, public accommodations, employment, we don't say that that's a traditional area for the States just because they got there first, which they did?

In both areas there was State legislation before Federal.

So, if you can have harmonious legislation for public accommodations, for employment, then why not here?

Mr. Rosman: I take it we've moved back to the Commerce Clause, Justice Ginsburg.

And I think the answer to your question is because this isn't commerce.

The reason that there was harmonious legislation on both the Federal and State level in the examples that you described is that Congress is regulating commerce.

This is not commerce.

This is violence.

This is interpersonal violence, the kind of thing the States have always had the exclusive province of regulating since the start of our country.

Justice Souter: Going... going back to section 5, I take it on... on your view any civil remedy provided by Congress exceeds the section 5 power then.

Mr. Rosman: Any civil remedy...

Justice Souter: Yes.

Mr. Rosman: against private individuals?

Justice Souter: That... that may be brought by a private individual against a perpetrator.

Mr. Rosman: Against a private perpetrator.

Yes.

The answer to your question is yes.

Justice Souter: Okay.

Justice Scalia: Well, a private perpetrator who was engaged in a conspiracy that was acting under color of law?

Mr. Rosman: I had understood Justice Souter's question to refer to someone who was not acting under color of State authority.

You're quite correct.

Justice Scalia: But any private individual who... who is participating in a State's violation of an individual's rights can be sued privately.

Mr. Rosman: As this Court has been... has repeatedly said under section 1983.

But what Justice Frankfurter said in his plurality opinion in United States v. Williams is that an individual's interest in receiving a fair trial in State courts cannot be constitutionally vindicated by Federal prosecution of private persons.

That's essentially what this statute is trying to do, to create substantive Federal law to remedy State violations of the equal protection.

It is not enforcement litigation.

And, indeed, the various statutes that we spoke about just a moment ago, title VII, Equal Pay Act... thank you, Your Honor.

Chief Justice Rehnquist: Thank you, Mr. Rosman.

The case is submitted.

Attribution:

The Oyez Project

Featured:

Reno v. Condon - Oral Argument

Fri, 09 Jan 2009 14:50:20 +0000

Case:

Reno v. Condon

Media File:

98-1464_19991110-argument.mp3

Related Transcript:

1999_98_1464_argument.xml

Transcript:

Argument of Seth P. Waxman

Chief Justice Rehnquist: We'll hear argument now in Number 98-1464, Janet Reno v. Charlie Condon, Attorney General of South Carolina.

General Waxman.

Mr. Waxman: Mr. Chief Justice, and may it please the Court:

We live in an age in which data bases of personal information are widely used in the national economy.

They are bought and sold, and they're critical to national marketing, yet their dissemination threatens personal privacy and sometimes safety.

The Driver's Privacy Protection Act is one of a series of laws in which Congress has balanced the benefits to commerce of disseminating personal information against the costs of that dissemination to personal security.

Beginning with the Privacy Act and the Fair Credit Reporting Act in the early 1970's, up until the Financial Services Act that was enacted just last week, Congress has acted on a sector by sector basis as new uses of personal data and new threats emerge.

In this case, Congress heard testimony that, while motor vehicle data bases are of particular value in commerce, their dissemination poses unique risks to personal safety and privacy.

Once disseminated, motor vehicle data bases are things in commerce, just as surely as are data bases that belong to financial institutions, cable operators, health care providers, and Congress may therefore regulate a State's discharge of data into the national economy just as it restricts a State discharge of pollutants or other State activities that have a substantial effect on interstate commerce, like operating airports, or issuing municipal bonds.

Chief Justice Rehnquist: As I understand it, General Waxman, the Government says it's the Commerce Clause authority here, not anything to do with the Fourteenth Amendment.

Mr. Waxman: That is correct.

We have not sought this Court's review on the Fourteenth Amendment question.

Justice O'Connor: And what are the other examples of Congress' choice to regulate States alone, exclusively under the Commerce Clause power, rather than general legislation?

Mr. Waxman: I think Justice O'Connor, that there are few examples of Congress' attempt to regulate States alone directly, as actors as opposed to the traditional preemption doctrine, because ordinarily what States do in interstate commerce is similar to what other people do, and in this case I think it's very important to recognize that this act, the Driver's Privacy Protection Act, is one of a series of laws that stretches from the 1970's until last week, in which of necessity Congress has been dealing with this kind of evolving information age on a sector-by-sector basis.

Justice O'Connor: Well, that could be the case, but I still have my question, if there are other examples...

Mr. Waxman: Well...

Justice O'Connor: of Congress' choice under the Commerce Clause power to regulate exclusively the States.

Mr. Waxman: Well, I think the best example that I've come up with, and it's in our brief, is, for example, the regulation of the operation of commercial airports.

All commercial airports are... I believe they are all operated by State or municipal entities, and yet Congress has the authority and has given the FAA the authority to say...

Justice Stevens: Are you sure of that, as factual predicate for that statement?

I think there are a lot of private airports that are operated by private parties.

Mr. Waxman: No, I think commercial air... this was actually a subject of debate in the oral argument in Travis, in the Seventh Circuit, and I believe we went back and checked.

There are lots of private airports, but commercial airports that take commercial airliners are something that are specially regulated by Congress and the FAA.

They're operated only by State and municipal entities, and Congress can say, you can't have a runway shorter than 7,000 feet.

Similar...

Justice Kennedy: But Justice O'Connor's question points up a reaction I had in reading your brief.

I thought, well, I'm going to find some cases that will show that the Federal Government can do this occasionally.

I can't find them.

And on page 35 you say, Congress may directly regulate stated activity affecting Congress, no cite, and I think the reason is, for 150 years or so the assumption has been that Congress cannot regulate States.

It regulates persons.

Mr. Waxman: I...

Justice Kennedy: Under its preemption power, sometimes.

Mr. Waxman: Well, I think with respect... preemption, of course, we're not arguing that this is a preemption case.

In our view, this is a case that is stronger for the Government than preemption, but the principle that when States act in interstate commerce, when they attempt to regulate an instrumentality or a thing in commerce, or they engage in an activity that substantially affects interstate commerce, Congress has the authority to direct or limit their activities just as it does with respect to anyone else.

If one or more States in this... with the example of this statute decided to contract out their motor vehicle data base function to EDS or some other information services company, it can't make a constitutional difference if one commercial airport decide... you know, becomes privately operated, and in this case, the act...

Justice Scalia: Mr. Waxman, this case differs, it seems to me from the airport cases you're talking about and from the pollution emission example you alluded to earlier, in that the collection and retention of data regarding automobile licensing is distinctively a governmental function.

You're talking about distinctively governmental records.

It's not something that... you know, any commercial actor can pollute.

Any person could, although it may not be that they have, run an airport, but only States collect information, which is why the legislation in question applies only to States, because it's...

Mr. Waxman: Well...

Justice Scalia: It's a purely governmental... now, maybe this is a Garcia-type concern I'm raising, but I think that is really what is...

Mr. Waxman: I...

Justice Scalia: troubling me about the case.

Mr. Waxman: I think it is, but let me address your concern, Justice Scalia, as best I can.

First of all, the act applies not only to States, but also to contractors and people who receive the information from the State.

It acts on the data base.

And the critical point I want to make in response to your question is, the... although I think Congress could take over licensing and motor vehicle permit issuances, Congress has not attempted to interfere in any way with the State's ability to issue licenses, issue motor vehicle registrations, to regulate how those laws are administered or enforced.

It... this act takes effect only when data is released into the national economy.

Justice Scalia: But we answered that argument in the Printz case.

Justice Kennedy: In the Printz case, you made the same argument.

Justice Stevens: You said, really, this is good to the States.

Justice Kennedy: This is allowing the States to regulate.

It's much better than if the Federal Government just took over driver's licensing, or took over weapons regulations.

But in Printz we said, the point is, we want to make clear who is regulating, is it the Federal Government, or is it the States, and this blurs the line, and this you may not do.

Mr. Waxman: With all respect, Justice Kennedy, I don't... I think this is Baker and Fry and not Printz, because the Federal legislation is not using State employees or State governments to regulate third parties, or to act on its behalf.

In Printz, as this Court explained, as in New York... and I think this is very... it's certainly important to our case.

What this Court said is, you cannot... the Congress can't use its sovereignty to govern private conduct through another sovereign.

It can't require States to legislate a solution to a problem that Congress has...

Chief Justice Rehnquist: But here... here, the act certainly does in effect impose duties on people in the Motor Vehicle Division, where you get a request for information.

I mean, it's not a categorical prohibition.

The people in the Motor Vehicle Division have to be very familiar with this Federal statute to know whether to issue the thing or whether to deny it.

Mr. Waxman: Well, Chief Justice Rehnquist, that is certainly true.

It is just as true as it was in Fry with respect to wage controls, in Baker with respect to the issuance of bonds, in Garcia with respect to wage rates and employment laws, and in... with respect to the pollution laws.

There are a lot of things that Congress requires the States to do or prohibits them from doing with respect to interstate commerce that requires that they do things.

In Baker, this Court said that a State wishing to engage in certain activity must take administrative and sometimes legislative action to comply with Federal standards regulating that activity is a commonplace that presents no constitutional defect.

Justice Scalia: General Waxman, your... the connection with commerce that you rely on here is, as you stated at the outset, simply the fact that information, these lists, once they are released, are an article of commerce, and I suppose that would apply to any information possessed by a State, so the Government could also... the Federal Government could also regulate the State's use of its tax information and any other State records, I assume.

Mr. Waxman: Well, Justice Scalia, I think first of all there would have to be a showing with respect to the particular type of information that was being regulated, that it did... that its dissemination did, in fact, have what this Court has reiterated to be a substantial effect in interstate commerce, a point that's not contested here.

And I think... and I would concede to you that we would have a different case if the Federal Government were trying to do something that the principle articulated in Coyle, and recognized in Garcia and Baker, were to apply.

If the Federal Government prohibited the State from issuing to the public information about how it operates, if it interfered with the State's ability to structure its fundamental mechanisms of self-government, but this...

Justice Scalia: Well, suppose the Federal Government has a change of heart, and it... which it does.

I mean, 10, 20 years from now, they say the problem is not excessive dissemination of information, the problem is, not enough dissemination of information, and we think all the States should have a Freedom of Information Act, just like the Federal Government.

Mr. Waxman: Well, again...

Justice Scalia: Could it pass such a law, that any information in the States' records have to be released?

Mr. Waxman: I don't... I think that would be very... I mean, if it were truly anything, it would be very problematic, and it might not be defensible under Coyle.

Justice Breyer: Wouldn't a closer case...

Mr. Waxman: It would also require, I think, either express findings, or it to be obvious to this Court's, quote, naked eye that that law had, or the release of that information had a substantial effect on interstate commerce, but here, it's conceded, there's no question that it does, and not only are these data bases...

Justice Scalia: That's the only obstacle, effect on commerce.

If there is a...

Mr. Waxman: No.

Justice Scalia: substantial effect on commerce, to the extent there is, the Federal Government could require all of the States to make available whatever is in their files to the public?

Mr. Waxman: Justice Scalia, as we understand this Court's jurisprudence, the Tenth Amendment has three, if you will, independent heads of authority.

The first is the principle expressed in Coyle and reiterated in Garcia and Baker that I just talked about.

There is an area of the State's ability to structure its mechanisms of self-government that the Federal Government simply is powerless to affect.

That's number 1.

You can't tell them they can't move their State capital, or they can't have a police force, or they have to have a commission that has 11 and not 12 people on it, or maybe even that they have to reveal information that it is essential to the State's function not to reveal.

That's head number 1.

Head number 2 is the principle that the Court articulated in... well, in Garcia, in which the protection of the States is largely left to the national legislative process, but there may be procedural defects in which one or a few States are subject to an undue burden or discrimination by reason of some defect in the legislative process.

And the third, of course, is reflected in the anticommandeering principle that this Court has articulated in the legislative context in New York, and in the executive context in Printz, and if any one of those...

Chief Justice Rehnquist: There was no doubt there that commerce was affected, I take it, so that it was not a question of Congress' commerce power, but a question of other limitations on that power.

Mr. Waxman: That's right, Chief Justice, and I think with respect to those three heads of authority they all... they wouldn't even come into play unless the Court were to find, or Congress were to find that it were acting under one of its enumerated powers.

I mean, if it's not acting under an enumerated power, the Tenth Circuit prohibits it by its very terms, because that power is reserved.

These three independent constraints that the Court has articulated over the years apply even if there is a finding that the Congress is exercising a legitimate authority in interstate commerce.

In this case, for example, Mr. Chief Justice, if this data base were being in fact a data base from a financial institution, or a health care provider, or a video store, all of which Congress has separately regulated, there would be no question that Congress would have authority to regulate or limit the dissemination so long as there was some substantial effect on interstate commerce.

So we get to the Tenth Amendment question in this case, because Congress is concededly operating to regulate something, an article in interstate commerce, and the question is whether this law, unlike the law in Printz or in Coyle, violates some independent prohibition of the Tenth Amendment, and Justice Kennedy...

Justice Kennedy: Well, isn't it one of the fundamental mechanisms of State government that State employees and State officers are accountable to their voters, to their citizens for what they do, and this completely blurs that line?

Mr. Waxman: Well, I think I would...

Justice Kennedy: In fact, suppose you have a State which is so insensitive that it's selling this information right and left, by the Federal statute you make it unnecessary to the State voters to control that conduct.

Mr. Waxman: Well, Justice Kennedy...

Justice Kennedy: It seems to me... and just to finish the thought... here the class affected, i.e., the people that have driver's licenses, is congruent almost precisely with those who vote and control their State officials.

Federal intervention is (a) unneeded and (b) intrusive on this governmental mechanism.

Mr. Waxman: Well, I'd like to make two points.

Actually, I originally had three, but I've now forgotten the third.

[Laughter]

I'd like to make two points with respect to this.

First of all, the information that is being restricted here is not information about how the Government works, or how the Government structures its operations, the type of information that this Court was concerned with in Reporter's Committee, and that would pose a different problem.

But the second point I want to make is that the same point... that is, well, you know, if the people of South Carolina want more protection for their privacy, they can vote, you know, they can elect, I don't know, a different Attorney... they'd never find a better Attorney General...

[Laughter]

but they could elect a different Attorney General, or they can move.

They could move to North Carolina, or some State that has a protection that's even stronger than the national legislature.

But the same could be said with respect to the child labor laws, the surface mining laws that were at issue in Hodel... the people of South Carolina are, of course, also citizens of the United States, and they have the right to call upon either Government for the protection of their liberties.

That, after all, was the point I think that you made about the double protection of liberty in the compound republic.

And what's particularly significant here is that Congress was asked, in testimony by the Association of State Motor Vehicle Operators, expressly to enact a law that, quote, must apply uniformly on a national basis because of the ubiquity of this information and the ease of accessing this information on computer modems from anywhere in the world.

The stalker who killed Rebecca Schaefer could just as easily have come from Nevada or Utah as from California, where she lived, and that's... I'm not suggesting that when the States ask for something, that makes it constitutional.

In New York, this Court made it clear that if all 50 States agree with the Federal Government that it can do something that violates an independent prohibition of the Constitution, it still adds up to nothing.

But with respect to legislation that Congress is empowered to enact, the fact that Congress was responding to the State motor vehicle administrators who were asking for a national uniform law, it seems to me does have some significance with respect to the exercise of Congress' authority.

Justice Scalia: I'm not sure that the... what the State administrators desire is not always what the State government desires, or what the State voters, much less what the State voters desire.

I mean, you have to assume that if the States do not have this restrictive policy that is imposed on them by the Federal Government, those States that don't have it don't want it.

Mr. Waxman: Well, I don't know that I would make that assumption at all.

There's now a Federal law in which all... I think every State except for four are fully complying with.

Some States have enacted laws that are even more restrictive of the transfer of information, and this act doesn't in any way preempt the operation of those laws, except with respect to the information that independent Federal statutes Congress has required the States to report, which is, of course, an issue that this Court reserved in Printz.

Justice O'Connor: This discussion is a... has a little bit of an academic quality in light of recent congressional action, I take it, which now is out there telling the States that if they don't have these privacy protections they will lose Federal transportation funding.

Mr. Waxman: Well, actually, one of the... Justice O'Connor, we did the best we could in our supplemental brief to explain the operation of this provision of the Department of Transportation Appropriations Act.

One of the unusual things about it is that it includes a provision that if States don't comply they will not lose any funding, although it does also purport to apply Congress' Spending Clause authority to the Driver's Privacy Protection Act.

Justice Ginsburg: What is the sanction, then, in the appropriations...

Mr. Waxman: Well, there is... I mean, there is no... the appropriations law, which of course is 1-year legislation in any event, doesn't include a sanction, but it incorporates all of the provisions of the Driver's Privacy Protection Act, which itself has sanctions.

And presumably also we think, if a State took the money... and the law does not even apply to the State of South Carolina until after this Court issues, quote, a final decision in Reno v. Condon... we think that the Federal Government could, if, contrary to an assumption that we have to make, which is that the States would comply, it didn't, we could presumably seek injunctive or declaratory relief.

But we did indicate to the Court in our supplemental brief that this intervening legislation does lend somewhat of an academic tone to this discussion, but it doesn't moot the case, and it doesn't really change any of the substantive issues in the case, because the law doesn't apply to South Carolina, presumably because the Court was attempting to respect, or the Congress was attempting to respect this Court's decisional processes.

But more to the point, when this legislation sunsets, there still will be a substantive law enacted under Congress' Commerce Clause authority, so... well, it... yes, it does have a somewhat academic...

Justice Stevens: What also raises a question in my mind is, if there is this unwritten constitutional principle, the Federal Government may never pass a law that imposes burdens on States that don't also impose burdens on private parties.

Why wouldn't that principle, if it is a valid principle, apply to spending legislation as well?

Mr. Waxman: Well, if the... if... it may very well apply.

Justice Stevens: Surely you couldn't... surely the Congress couldn't give the States money on condition that they close up all their newspapers, for example, or something like that.

If there's an overriding Federal constitutional principle, it seems to me it must limit the spending authority as well as the Commerce Clause.

Mr. Waxman: I have been unable to discern anything in the constitutional structure that would require a result as bizarre as saying to Congress, if you want to regulate the dissemination in interstate commerce of the motor vehicle data base, you have to do so in the same law and in the same way as all of the other data bases that are in interstate commerce that you've heard have different promise and pose different problems.

After all, Article I, it authorizes Congress within its enumerated powers to enact laws that are necessary and proper, which must include in it the prerogative that all legislatures have to tailor their laws to the problems at hand.

And the Tenth... for purposes of the Tenth Amendment, if a particular State activity affecting commerce is within reach of the national legislature, if it also applies to some private parties, then it seems to me that the power to address that activity by the State necessarily does lie within the powers, quote, delegated to the United States within the meaning of the Tenth Amendment.

Congress' power doesn't depend on whether the act also applies to private parties.

Justice Ginsburg: General Waxman, may I just clarify one point?

With respect to the liberty interest that's supposed to be protected by the dual sovereignty, as I understand the Federal legislation, it gives the choice to the driver, so the driver who wants his name available to solicitors or anyone can just say, yeah, okay, give my name.

Mr. Waxman: Well, it's even more solicitous of the State motor vehicle operators, because it allows them to disseminate it for any purpose, provided that they have in place a system... and this is reflected in section (b)(11) of 2721, provided that they have a system that permits people to, quote, opt out of the legislation, so it is certainly true that the State, any State that puts in place a system that allows people to just check off if they want to opt out can otherwise sell this data base as they have before.

Justice Scalia: General Waxman, you know, you mentioned the three separate heads that could overcome the Federal Government's authority to control activities, Printz and so forth.

Why shouldn't there be a fourth, or maybe it's... maybe it comes... falls under one or the other, and that is, a State's records and what a State does with its records are very much its own business?

I mean, you know, the issue of transparency of Government is a major concern, and each Government should know just... should be able to determine just how transparent its own operations will be.

These are State records, and some States have decided we want transparency.

Mr. Waxman: Justice...

Justice Scalia: Anybody can look to see who's getting licensed and who isn't getting licensed.

Mr. Waxman: Well, Justice Scalia, I... this may be repeating myself, but maybe I didn't make my point clear.

I think that that, in certain contexts that exception, that instance would be covered by the Coyle head.

That is, if you... if the Federal Government were purporting to restrict the State from making available information to tell its citizens about what it's doing, how it's operating, that would be a case that's very different than an act which comes in only at the point at which a State puts into interstate commerce information that private citizens, personal information that private citizens provide to it.

I mean, one of the things I think that was most striking in the testimony before Congress was the testimony about how vulnerable people become when this information is available, because the ability to tie your address and your photograph to a license plate is the equivalent, in terms of personal safety, to being required to walk around all day with a sign that says, my name is Seth Waxman, and I live at this address, and I'm this age, and I have these medical disabilities.

It's a unique aspect of information that says nothing about... tells the Government, the people nothing about how the States are operating.

May I reserve the balance of my time?

Chief Justice Rehnquist: Very well, General Waxman.

Mr. Waxman: Thank you.

Argument of Charles Condon

Chief Justice Rehnquist: General Condon, we'll hear from you.

Mr. Condon: Mr. Chief Justice, and may it please the Court:

This case is not about protecting privacy.

We are for protecting privacy, and this case is not about preventing the horrible crime of stalking.

We're against stalking.

The issue in this case is whether thousands of State officials across the country can be pressed into Federal service by the Congress to administer a Federal regulatory act.

I think if I could answer Justice Kennedy's question, which I think goes to the heart of this case, the Driver's Privacy Protection Act is complex, it's burdensome, it has all these exceptions, 14 exceptions, and it applies only to the States of the United States, and to follow this Federal mandate, which is unfunded, by the way, State officials must first look at it, interpret it, and then apply it to this...

Justice O'Connor: Well, in one sense, though, the act does regulate use of the information by both the States and private parties into whose hands the information comes.

Mr. Condon: The overall...

Justice O'Connor: It is, to a degree, broader.

Mr. Condon: That's correct.

The overall tenor, though, is to the State officials.

Justice O'Connor: And it is also, in part, about privacy, because your State chooses to sell the information and make it public, and the Federal legislation would say to the State, you can't.

Mr. Condon: Well, if I can answer both of those questions, it is possible this act may be severable, because it does... and we're saying that the Congress should directly regulate individuals.

That's our position, and so we have no problem with the direct regulation of Congress by individual citizens.

But as to your comment or assertion that South Carolina sells this information, under the Driver's Privacy Protection Act, had it been in effect in South Carolina when South Carolina sold 3.5 million photographs... this is my point about how the act is ineffective... that selling was legal under the Driver's Privacy Protection Act, because the same sale occurred in Florida and Colorado, where the act had never been challenged and was in effect.

So the Driver's Privacy Protection Act, number 1, doesn't work.

But that's really besides the point, because...

Justice O'Connor: It sure is.

Justice Stevens: I mean...

Unidentified Justice: [Laughter]

Justice Scalia: you're just saying it ought to be stronger.

Mr. Condon: No.

We're saying the exact opposite.

[Laughter]

Let South Carolina run its own business here.

Justice Ginsburg: General...

Justice Scalia: When you say pressed into service, that made sense to speak that way in Printz, because the State was being forced to act as a government in order to implement a Federal regulatory program.

Your State is no more being pressed into Federal service than any private organization which has records that comes under a similar prohibition from the Federal Government is, quote, pressed into Federal service and, of course, you can't press private individuals into Federal service any more than you can States.

I mean, we do have a Thirteenth Amendment, after all.

Mr. Condon: I would ask you to look at the practical effects of this law.

First of all, a State DMV employee in Darlington, South Carolina who knowingly violates this act faces arrest, a criminal fine, presumably by the FBI.

Justice Scalia: Well, it's onerous, but that doesn't mean that they're being pressed into service.

They're not implementing any Federal program.

They're just saying... what it says is, you can't allow this information to be disseminated, just as it tells some private corporations that they can't do it.

Mr. Condon: If I could use this very concrete analogy.

When citizens want to come into this courtroom this morning, pursuant to directions from this Court, the Marshal's Services says, you can't come in.

Now, the Government's position is that only the Marshal's Service is being regulated.

Our position is that the citizen is being regulated.

The citizen cannot come in here, and so a prohibition is, indeed, a regulation.

Justice Ginsburg: But you said the citizen could be regulated, and really I misunderstood you.

I thought what you said was, the Federal Government can act on the citizens, so it would be permissible for Congress to pass a law that says no person, no private person shall request driver's license information.

If any private person does, they commit a Federal offense.

Mr. Condon: We would not object to that, to such a law.

In fact, that's what the Congress should do.

Chief Justice Rehnquist: Well, your position as I understood it, General Condon, was that various State employees in the Motor Vehicle Division were being pressed into service, because the complicated Federal regulatory scheme required them to administer, in effect, that act, in order to decide whether to release particular information or not.

Mr. Condon: That's precisely the point.

Justice Kennedy: But is the Government right when it says that is still different from Printz, because in Printz the government officials, State officials were being pressed into service to direct, regulate, control the activities of their own citizens, and that isn't the case here.

Do you agree with that distinction?

Mr. Condon: No.

Look at Sheriff Printz of Montana, what he had to do in the Printz case.

The Brady Act simply required Sheriff Printz to run, in effect, a records check, a rap sheet, so Sheriff Printz had to get the name and the social security number from the Brady form, period.

There was no obligation to turn that back over to the gun dealer, no obligation to give it to the Federal Government.

Here, we've got to tell our State DMV employees that, listen, you've got this really complicated law, it's got these 14 exceptions, who knows what they mean...

Justice Kennedy: No, but I take it to be General Waxman's point that in Arizona, when the citizen couldn't buy the gun, he didn't know who to blame, the State or the Federal Government.

Here, there is no operation, as I understand his argument... and maybe this is... maybe you'd disagree with it.

Here, there is no operation of the law on State citizens by reason of anything State officials do.

Mr. Condon: Well, I want to get back to my original point.

Let's say you get your car towed this morning.

The act provides that, pursuant to a car being towed, you're entitled... there's an exception there, a permissible exception that the State records can then be released.

But the citizen then comes in, and presumably the State official has to look at that exception and develop standards and develop forms.

We have to verify if, indeed, this is the correct information here, you're not making this up to stalk someone, so the citizen is really being directly regulated by us.

We're being puppets of the Federal Government.

Justice Breyer: Isn't that true of every Federal prohibition on what a State government does?

I mean, suppose you sell hot dogs at the State park.

Don't you have to comply with the food and drug laws?

I mean, and they may be complicated, and you may have to say what kind of a hot dog and what kind of a stand, and what about... it's certainly a lot better than the minimum wage, or the... isn't it?

I mean, you have to do a lot less than that.

And... in other words, is your argument on this part just going to set aside all Federal regulatory programs that tell States what they can't do?

Mr. Condon: Justice Breyer, that again is a good question, but that goes to the heart of this case.

We aren't selling hot dogs here.

Justice O'Connor: Well, let me ask you another example.

I think Congress passed the Internet Tax Freedom Act, and it told States they couldn't tax these Internet transactions for a period of time, can't do it.

I suppose under your theory that's invalid, too.

It only dealt with the States and governmental entities.

Mr. Condon: That could raise...

Justice O'Connor: I suppose that's invalid, is that right?

Mr. Condon: That could raise some concerns, if the Congress is telling the States that pursuant to your taxing authority we take...

Justice O'Connor: And yet that's a far cry from the kind of commandeering of State personnel that concerned the Court in Printz, isn't it?

Mr. Condon: Yes, but...

Justice Breyer: Your theory is... your answer to Justice O'Connor that because that statute that she mentioned tells only States what they can or can't do, it doesn't apply to private people, that for that reason... it says, State, you can't tax.

For that reason, it would likely... I'm not holding you to this, but I mean, your instant reaction is, that's just as unconstitutional.

Mr. Condon: It would raise concerns.

Justice Scalia: All right.

Justice Breyer: If it raises concerns... I take it you're not attacking all of this Court's dormant Commerce Clause jurisprudence, are you?

Mr. Condon: No.

Justice Stevens: No, fine.

Justice Breyer: If you're not, then I would think... and think of all those cases.

Each one of them, a judge has said to a State, you, as a State, cannot do something.

Now, suppose Congress said exactly what courts have said, and they said it in statutes.

In each of those statutes Congress would have said to a State, as a State, you cannot, you cannot run your airport and keep Egypt Air out.

You cannot sell natural gas and keep Algerian gas out.

I mean, you can't regulate it.

You can't regulate your electricity and keep Canadian electricity out.

You can't, you can't, you can't.

And if you accept that jurisprudence, but you're also arguing you can't regulate the State as a State, how do you do that?

How do I... how would I possibly find for you on your theory you can't regulate a State as a State, and not set aside the entire dormant Commerce Clause and dozens of statutes, et cetera?

Mr. Condon: Well, national security implications may be different, but if I can get back to your hot dog...

Justice Breyer: It's not national security.

I mean, is that the distinction?

Mr. Condon: No.

Justice Breyer: I'm talking about the entire Commerce Clause jurisprudence.

Mr. Condon: I understand.

Justice Breyer: The dormant Commerce Clause.

I'm talking about any kind of a congressional statute aimed at a State which would say, State, you can't tax this, State, you can't tax that, and I have 10 examples if you want me to give them.

State, you cannot keep out Algerian natural gas.

State, you cannot... those don't apply to private people.

They apply to States, and they say to a State, State, you cannot.

Now, are you asking us to set aside all that?

Mr. Condon: Well, I think what's telling here is that when asked of the Solicitor General, is there one case that tells the States under the Commerce Clause, and only the States, you can't do X, Y or Z, you come up with this airport example that Justice Stevens pointed...

Justice Souter: What about the answer to Justice Breyer's question?

Mr. Condon: Well, I'm trying to answer it, but to answer your question, if you look at the Garcia line of cases, and the...

Justice Souter: Well, what about Justice Breyer's questions?

Mr. Condon: Well...

Justice Scalia: Commerce Clause regulation?

Justice Breyer: lots of examples.

I mean, I can give you 10 statutes where Congress says to a State, you can't tax airplanes, you can't tax cars, you can't tax electricity, you can't tax this, you can't tax that.

I'm familiar with the regulatory area, where maybe it isn't Congress, but it's Federal regulatory agencies that say, when you regulate natural gas distribution systems, you cannot discriminate in your rules against Algerian LNG.

Mr. Condon: Yes, I heard...

Justice Breyer: You can't discriminate...

Justice Kennedy: Is the answer that this is exactly the way preemption and supremacy power should work?

Congress has the ultimate determination over which branch of Government regulates individual entities, but that's not this case, because here Congress is regulating a State?

Justice Breyer: That's what I don't understand.

Chief Justice Rehnquist: How does that...

Mr. Condon: Well...

Justice Breyer: How is it more of a regulation of the State here to say, State, you may not release this information to a private person than to say, State electricity regulator, you may not discriminate in your rules against electricity coming from Canada?

What, in your view, is the difference?

Why is one regulation...

Mr. Condon: Well...

Justice Breyer: State as a State, and the other not?

I'm not saying there isn't one.

I'm just saying I don't see it.

Mr. Condon: When you look at the jurisprudence in terms of preemption and other enumerated powers within the Constitution, admittedly it's different in terms of where we are, but to get back to the decisions of this Court, which has breathed new life into our system of dual sovereignty, we simply...

Justice Breyer: I'll ask Justice Kennedy later.

Unidentified Justice: [Laughter]

Mr. Condon: Well, you know, to reference this point, directly regulating individuals is a different matter here, and when you've got the States here... and again, if I could go back to the hot dog, because I like that one, if I could, we're not selling hot dogs here.

When the car first came through South Carolina, we took this over.

This is what we do in terms of regulating automobiles, and for the Congress to come along, worried... and we're responsive to our citizens.

We have to run...

Justice Kennedy: Well, of course, that's one of the problems with the case, is that we go from commandeering to exclusive State function, and nothing seems quite to work, as Justice Scalia pointed out earlier.

Now you're... what you're doing is saying that this is an integral State function, it's an inherently governmental function.

That's different from commandeering.

Mr. Condon: Yes.

Well, I think it's...

Justice Souter: Well, are you saying, then, that Garcia was wrong, that we go back to Usery?

Mr. Condon: In this case we don't need to revisit those issues.

That's a law general...

Justice Scalia: Well, you might need to.

Well, there's...

Justice O'Connor: You might need to.

That's the point.

I don't think that the commandeering rationale of Printz quite covers this, and yet the old law under Usery pre-Garcia, we might say this is a traditional State function, but what are you saying to us, that we ought to go back to that, or... or what?

Mr. Condon: If you look at Printz, and just really keep it simple, and if you've got some questions about the commandeering, I would ask you to look at the practicality of what's going on here.

This is much more commandeering than what the sheriff...

Justice Souter: Well, but it's... you say... you keep emphasizing the burden and, as Justice Breyer suggested a moment ago, save for details, I don't see anything distinguishable between this burden and the burden of the wage and hour law, which can be nightmarish to administer.

And if the burden is in fact the... going to be the criterion, then even without going back to Usery, the wage and hour law extension to the States, even though it covers private individuals, I presume is unconstitutional, too.

Is that your position?

Mr. Condon: No.

Justice Souter: All right.

Mr. Condon: And of course, the balancing is not necessary.

I... as Printz makes clear...

Justice Souter: So the burden, then, is... the so-called burden argument I assume, then, takes you nowhere.

That's not essential to your position.

Mr. Condon: I think it takes you to look at the aspect of administering, because in the abstract I think you can say, well, they're not... this is merely a prohibition.

But to get back to my concrete example, when the officer...

Justice Souter: So... but I don't want to misunderstand you.

The... your point, I take it, is not whether the burden is heavy or the burden is light.

The burden is... the only relevant question is whether acts of administration are required on the part of the States in order to comply with a Federal statute.

Is that the criterion?

Mr. Condon: That's the heart of this case.

Justice Souter: Then the wage and hour law goes, because the States certainly have to take many, many steps to administer the wage and hour law to their employees.

Mr. Condon: Well, as this Court has said...

Justice Souter: Do you agree that the wage and hour law, therefore, has got to be struck down in its application to the States?

Mr. Condon: This Court has said that was a law of general applicability.

Justice Souter: But it has administrative burdens, so...

Mr. Condon: And my point about administrative burdens is to get to the heart...

Justice Souter: they're okay if they're distributed to States and to private entities?

No matter what the administrative burden, it's okay as long as private entities also have administrative burdens?

Mr. Condon: Again, in terms of trying to answer your question directly...

Justice Souter: Well, that would be yes or no.

Unidentified Justice: [Laughter]

Justice Souter: I mean, truly, if... is it your position that the administrative burdens are okay if the same statute imposes administrative burdens on private entities?

Is that your position?

Mr. Condon: In this particular case?

Justice Souter: Well, in all cases.

Mr. Condon: Well, there may be a case that is so... and I can't imagine this getting through the Congress, but it might, where it's so broad but so burdensome it would get to the core of our State functions.

That... it would depend upon the statute.

Justice Souter: Well, if your core is State functions, then you're back in Usery, and you don't need the burden criteria.

Mr. Condon: Correct, but...

Justice Stevens: May I ask you a question about your central theory?

As I understand it, your central theory is that unless the statute regulates both private conduct and State conduct, it's invalid under a Tenth Amendment concern.

And that's supported by the fact that as far as you can say, and I don't think the... your opponents have found anything... historically, it just hasn't been done, and so you say that we must assume that there is this constitutional limitation on the power of Congress to regulate States.

Now, does that principle mean, for example, that Congress could not pass a statute the obverse of this, requiring States to send their... all of the information about criminal conduct, finger prints, missing children, and so forth, to a central bureau in Washington for review and use and for Federal purposes?

Mr. Condon: Ministerial reporting, I know, Justice...

Justice Stevens: Well, but my example is one... I don't think the test is how burdensome it is.

The test, as I understand your argument, and I want you to enlighten me if I'm wrong, is the absence of impact on private parties, and the statute just impacts on the States, and I give you an example and you say, well, that's all right because it's not very serious, or does the principle apply there?

Mr. Condon: If the reporting involved a lot of cost and expense in gathering it, I think that would raise some concerns.

Justice Stevens: It would routinely require the police to report all missing children, and finger prints, and something of that kind.

It's... it requires the information.

It doesn't require it be kept quiet.

Mr. Condon: Well, of course, that's not this case.

Justice Stevens: Well, why isn't it this case?

That's my question.

Mr. Condon: Well, that's really my point.

Justice Ginsburg: It is this case in part, because one part of this statute does require the States to provide certain information.

All of the Federal statutes... this is not a hypothetical case that Justice Stevens has raised.

Several Federal statutes require the States to supply information to various enforcement agencies.

Mr. Condon: That also is a good question, Justice Ginsburg, and this statute does codify the existing statutes that require some reporting.

We've not made that the core challenge of this case because of this administerial reporting aspect, but when you get back to what's going on, to the DMV employee in South Carolina, if I could, they are being commandeered by the Congress, Congress'...

Justice Stevens: Would you... I know you've been interrupted, and I hate to do it to you again.

Would you answer my question?

Mr. Condon: The administerial reporting?

Justice Stevens: Does your principle apply to my hypothetical?

Mr. Condon: I believe that in terms of the core of this case, it could.

Justice Stevens: It... I should think you'd have to say it must if there is really a principle and not just an accident of history.

It may well be true that some things have never... the Federal Government may have never done some things in the past, but that does not necessarily mean that the power isn't there, even though unexercised for 200 years.

Mr. Condon: Well, could I rely on a little elbow grease at the joints there, in terms of a little play?

I mean, the Governments have to function together, and reporting missing children to the Congress, I mean... but here, the Congress has decided that privacy is the issue de jour, that we're going to tell these horrible States...

Justice Stevens: But that's an argument about the wisdom of the legislation.

Mr. Condon: The commandeering.

They've sent no money with this.

It's very complex.

It's complicated...

Chief Justice Rehnquist: In Justice Stevens' hypothetical, it seems to me people are being commandeered perhaps even more so than in this situation.

Mr. Condon: Depending upon the nature of the reporting...

Justice Stevens: Yes.

Mr. Condon: that is true.

I agree with that.

If there's whole new aspects in terms of gathering and costs and things.

But just sitting right there, and the Congress wants to require the States... but the principle, I agree, might come into play, but again, here you've got the Attorney General of the United States that can assess a $5,000 a day fine against the States for not complying, we have a...

Justice Stevens: No, but if you beat up... if a State official beats up a prisoner he can get fined under the Civil Rights Act.

The fact that there's...

Mr. Condon: Well...

Justice Stevens: criminal penalties attached to State violation of Federal law doesn't really make it any different than a lot of other statutes.

Mr. Condon: Again, the Fourteenth Amendment is not involved.

Justice Stevens: I understand, but you could also have a speed limit that if they violate it, that... you know, the fact that criminal penalties attach doesn't really reach the question of what Congress' power is, it doesn't seem to me, anyway.

Mr. Condon: Well, in terms of... again, the practical effects, in terms of the commandeering, and again, this isn't information that it's improper for us to have, or something new, or that the flow of information is new.

People need to have this information.

Insurance rates...

Justice Scalia: Well, basically...

I don't see how they're commandeered at all, come to think of it.

I mean, all they've told you is, don't give out information.

Why is that hard to comply with?

I mean, if a State didn't want to go through a hassle, all it would have to say is, nobody can get any information from our driver's records, period.

What's to commandeer?

What's the big burden?

If you choose to give out some of it, that's your problem.

In figuring out the details of what we're going to give out, make sure that whatever we do give out doesn't run afoul of Federal law, but Federal law doesn't require you affirmatively to do anything.

All you have to do is sit on your hands and not give away any driver's information.

Big deal.

What's so hard about that?

Mr. Condon: The information has to flow.

It's essential that...

Justice Scalia: That's your choice.

That's your choice.

That's not the Government commandeering you to make all these hard decisions.

It's because you choose to make some of it available that as a matter of State function you say, well, if the State's going to do what it wants to do, we're going to have to make sure that it doesn't run afoul of the Federal act, but that's your choice.

Mr. Condon: Well, these are things we do.

rate-setting with insurance companies, they have to know who's the good driver and the bad driver.

Police, in terms of solving crimes, they have to be able to look at these records and do things, and to simply say, well, you can just simply stop doing your business and doing your job, I think...

Justice Ginsburg: General Condon, I find such difficulty with your commandeering burden argument when I think of the legislation you're not challenging, at least here, the Fair Labor Standards Act, the Surface Mining Act.

Lots of environmental legislation poses very heavy burdens on the States.

Mr. Condon: Well, Garcia and Baker, that's still good law, and again, that's not here before this Court, but that's not what's involved in this case.

This statute only applies to the States, and it only applies to the officials in those States, and we have to comply with this statute or face these penalties, which... you may make light of it, but I don't know how many Federal statutes that are out there that can have someone arrested for the FBI for knowing violation of simply doing their job day-in and day-out.

And again, in terms of blurring the political accountability, getting back to that, these are records that South Carolina law requires to be produced, these are records that we pay tax dollars to produce, and we're just simply saying that, let South Carolina be run by South Carolinians, and...

Justice Souter: But the wage and hour law provides the same confusion.

When you go the employee and say, I'm sorry, you can't work more than 40 hours because you'd be subject to overtime and we're not going to pay it, the employee doesn't know whether that it's the State government that doesn't want them to work, or whether it's because the National Government requires time and a half.

I don't see how you can draw any principle distinction between the statutes which you are disclaiming any effect upon, and the one that you are challenging, because in each of them there is going to be uncertainty in the minds of the citizen as to the source of the law.

Mr. Condon: Well, when you've got a statute like the wage an hour that applies across the board, and is part of the national fabric, here, as to what's going on here... and again, we're for protecting...

Justice Souter: Well, this is certainly... this statute is certainly intended to be part of the national fabric.

It applies to all the States.

That's about as national as you can get.

Mr. Condon: Except for the fact that the Federal Government has data bases that isn't covered by this.

FAA has data bases on the Internet with people's personal information, the FCC, the ICC.

It's at the State level.

It's us we have to implement.

They're commandeering our officials in terms of how to apply this act, and again...

Justice Scalia: Well, I suppose you could distinguish the wage and hour laws and a lot of other examples if you made the argument that there is something distinctive about State records, and that the Federal Government, this is just a category which the Federal Government can't control, that just as it can't tell a State where to have its Statehouse, it can't tell a State what to do with it's governmental records, how that... you know, that's an argument.

That may be right or wrong, but at least it would be compatible with your acknowledging the validity of these other statutes.

They don't deal with State records.

State records are... I don't know, they're sacred, just as a Statehouse is.

They belong to the State, and the Federal Government mucking around with them goes over the edge.

I mean, I... that's a conceivable argument.

Mr. Condon: That may be a possibility, but there are other... this is... what should be done here as a last, last resort has been the first resort.

The Congress could directly regulate individuals who get these records.

The Congress could take our records, take this burden over.

We can do other things with our time.

But what they've done, they've gone right after the States with an act that really doesn't work to begin with.

It's very complex, and in terms of this Court's decision in terms of Printz and New York, it raises the exact same principles that are at stake, and we simply would ask, on behalf of the States, to continue to keep... breathe new life with your prior decisions into our dual sovereignty system, which protects us all.

Justice Ginsburg: Do you say that to the extent that the Federal Government requires you to turn over records, that that would fall under your principle, too, but as a matter of comity you're not objecting, or that that's distinguishable when the Federal Government says, South Carolina, you will give your driver's license information to certain Federal agencies for certain purposes?

Mr. Condon: I think in terms of the principles, we're at the comity level, especially when...

Justice Ginsburg: So that if you wanted to insist on that being unconstitutional, you can say they're our records, and we don't have to give them to anybody.

Mr. Condon: Again, that's not the case before here.

There's time enough for that.

Justice Scalia: I assume that if anybody's hurt by South Carolina's being more liberal with its disposition of its driver's records than other States are... other States may indeed follow the Federal practice under their own State law, but I suppose if California is more liberal, if you call it liberal, it doesn't hurt anybody but South Carolinians, does it?

Mr. Condon: Democratic accountability.

As a matter of...

Justice Scalia: There's nobody outside of South Carolinians who would have their driver's information coughed up by South Carolina.

Mr. Condon: That's correct.

Justice Breyer: So...

Mr. Condon: But as a matter of information, we've gone further in South Carolina than the Federal act.

We protect privacy more now, and that's really the point.

Let the States run their own records, let them make those individual choices, and we're accountable to...

Justice Scalia: Or the people of the State whose driver's license are at issue.

Mr. Condon: That's precisely our point, to let us run our records, and again, I understand that this case has broad implications for the future, but when you look at what's going on here in terms of the facts of this case, we feel that the prior holdings in New York and Printz dictate this result.

Thank you, Mr. Chief Justice.

Rebuttal of Seth P. Waxman

Chief Justice Rehnquist: Thank you, General Condon.

General Waxman, you have 3 minutes remaining.

Mr. Waxman: Thank you, Mr. Chief Justice.

I'd like to make three points in my 3 minutes, if I may.

First of all, with respect to the Usery-Garcia point, Judge Easterbrook, writing the majority opinion in Travis, which is the companion case in the Seventh Circuit, found correctly, we think, and for the reasons we articulate in our reply brief at page 8, footnote 6, that this case, in any event, wouldn't be decided differently even under the regime in Usery.

And I commend the Court's attention to Judge Easterbrook's majority opinion and our analysis, which essentially takes off from the Chief Justice's concurrence in South Carolina v. Baker, where the Chief Justice emphasized that the more expansive conception of the Tenth Amendment espoused in Usery recognized that congressional action that, quote, operates to displace the State's freedom to structure integral operations in areas of traditional Government functions runs afoul of the authority granted by Congress.

Justice Scalia's hypothetical, where there was a bar on releasing any information that is in a State record, probably would raise very serious concerns under Usery, but a release in commerce on information that is personal and private that is provided by citizens we think doesn't implicate Usery.

With respect to the... Justice Kennedy's point and Justice Stevens point about the category of one, I... if one looks at the environmental laws, for example, that Congress has regulated sludge and solid waste systems that are operated, if not exclusively, overwhelmingly by municipalities, and Congress... and it has regulated in a way that is different than it regulates other types of environmental issues, and the fact that Congress distinguishes...

Chief Justice Rehnquist: I don't know that the Tenth Amendment applies with all its force to local governments as opposed to State governments.

You're talking about the regulation applies to local governments.

Mr. Waxman: Well, if it doesn't, Mr. Chief Justice, I'd sure like to take another shot at United States v. Printz, which involved sheriffs and...

[Laughter]

I don't mean to be facetious.

We have understood that in contrast to this Court's Eleventh Amendment jurisdiction, the Court has always construed its Tenth Amendment jurisdiction to include not only States but subordinate sovereign entities, or subordinate governmental entities.

I just want to point out, with respect to South Carolina v. Baker, which is always cited as a statute of general applicability, and perhaps in one sense correctly so, but only in the sense that this is, too, the section that... the statute that was at issue in Baker, section 310(b)(1) of the Tax Equity and Fiscal Responsibility Act applied only to State and local governments.

It denied a tax exemption to unregistered bonds, a tax exemption that only applied to... ever only applied to State and local governments.

The Court pointed out in its opinion that this was part of a general system of law, a general law that did away with... it tried to address the problem of tax fraud through the use of unregistered bonds.

It acted with respect to the Federal Government in a different way, and the same is true here.

Chief Justice Rehnquist: Thank you, General Waxman.

Mr. Waxman: Thank you very much.

Chief Justice Rehnquist: The case is submitted.

Attribution:

The Oyez Project

Featured:

Kimel v. Florida Bd. Of Regents - Oral Argument

Fri, 09 Jan 2009 14:50:20 +0000

Case:

Kimel v. Florida Bd. Of Regents

Media File:

98-791_19991013-argument.mp3

Related Transcript:

1999_98_791_argument.xml

Transcript:

Argument of Jeremiah A. Collins

Chief Justice Rehnquist: We'll hear argument now in Number 98-791, J Daniel Kimel v. The Florida Board of Regents and the United States versus the same.

Mr. Collins.

Mr. Collins: Mr. Chief Justice, and may it please the Court:

Employees of State agencies who have been injured by violations of the Age Discrimination in Employment Act are not barred by the Eleventh Amendment from suing the States in Federal court for redress, because Congress unequivocally authorized such suits in the statute, and Congress had the power to do so under section 5 of the Fourteenth Amendment.

The authorization of these suits is established by the incorporation into the ADEA of section 16(b) of the Fair Labor Standards Act.

That section specifically provides for suits by employees against public agencies, including the States, in State or Federal court and, as this Court observed last year in Alden, it provides for those suits without regard for consent.

By incorporating this provision into the ADEA, together with provisions which state that claims under the ADEA will be deemed to be claims under the Fair Labor Standards Act for this purpose, Congress unequivocally authorized these suits and abrogated the State's Eleventh Amendment immunity.

Justice O'Connor: Mr. Collins, how many other Federal statutes purport to abrogate State sovereign immunity without specifically referring to the Eleventh Amendment or to sovereign immunity?

Mr. Collins: I'm not sure...

Justice O'Connor: Because this statute doesn't.

Mr. Collins: That's correct, Justice...

Justice O'Connor: And I just wondered how many others there might be that use similar language without any reference to the...

Mr. Collins: I don't have the number, Justice O'Connor.

The statute, of course in Seminole Tribe did not refer to the Eleventh Amendment, and the statute in Union Gas didn't refer to the Eleventh Amendment or sovereign immunity, and the Court held in both of those cases that the intent was clear to abrogate.

Justice O'Connor: In our case, Kennecott Copper, though, we didn't think that the phrase, court of competent jurisdiction, was enough to do the...

Mr. Collins: And that was true in Missouri Employees as well, Your Honor, under the FLSA, but here Congress has gone further, as the Court observed in Alden, and clearer, in that it refers among other things to courts State or Federal, and to suits against any employer, including a public agency.

And we also know, not merely from legislative history but from the retroactivity provision of the 1974 amendments to section 16(b), that Congress amended section 16(b) into its present form for the specific purpose of providing the clear statement of intent to abrogate that the Court had found lacking in Missouri Employees.

So in these... in this situation the specific phrasing referring to public agencies, State or Federal courts, combined with the retroactivity provision making it unambiguous that the purpose of this provision is to provide an abrogation as to suits against States in Federal court, we believe is unequivocally clear.

Justice Kennedy: Is...

Suppose you had... excuse me.

Suppose you had a jurisdiction where the State has waived its Eleventh Amendment immunity in its own courts, but insists on the immunity in the Federal courts, wouldn't it be fair to say that the State court is a court of competent jurisdiction, but that the Federal court is not?

Mr. Collins: I don't believe that's correct, Justice Kennedy.

The... of course, competent jurisdiction is a phrase used in many statutes.

If it weren't used, a person conceivably could sue in an appellate court, sue in a small claims court, but this Court held in Wisconsin Department of Correction v. Schacht that the fact that an Eleventh Amendment immunity could be available in a particular case does not mean that the Federal court lacks jurisdiction over that case, lacks original jurisdiction.

So it seems to me that the phrase, competent jurisdiction, cannot properly be construed as importing defenses of consent or lack of consent, immunity defenses.

I think Schacht is clear on that, and again, it is quite clear, I think not only from Alden but from the retroactivity provision of the '74 amendments that we have here a statute that's unusually explicit in being designed to provide the statement of clear intent that the Court upheld in Missouri to have been missing from the FLSA prior to the '74 amendments.

Justice Ginsburg: Mr. Collins, in answer to Justice O'Connor's question, you mentioned the IGRA that figured in Seminole that didn't use, make specific reference to the Eleventh Amendment.

Remind me about title VII.

Does title VII make a specific reference to it?

Mr. Collins: That's right, Justice Ginsburg, no, it does not, and I believe that there are numerous others that do not make a specific reference.

Justice Souter: And in this case the term public agency is specifically defined to include a State, is that correct?

Mr. Collins: That's correct.

Now, Congress had the power to abrogate State immunity from claims under this statute because this is a statute aimed at arbitrary discrimination against a class of people based on stereotypes about that class.

Justice O'Connor: Well, probably the statute goes beyond any constitutional substantive limit, does it not?

Mr. Collins: It does, Justice O'Connor, and it certainly goes beyond what the courts acting without congressional guidance could find to be unconstitutional, but it does so, as I'll undertake to explain, in a way that's congruent, to use this Court's terms, with the constitutional prohibition.

And the heart of the statute, the core, the reason it was enacted, and the purpose that is served by its various provisions, is to get at a form of what this Court has called invidious discrimination in McKennon...

Justice O'Connor: Was there any more indication in the history of this legislation other than trying to reach the private sector?

There's very little that indicates there was some need to reach State and local employment...

Mr. Collins: I don't think that's the case, Justice...

Justice Scalia: legislation, isn't that true?

Mr. Collins: I would say not, Justice O'Connor, because even in 1967, in the years leading up to the initial enactment, what Congress was looking at, and what the Labor Department, for example, studied in the reports it gave to Congress, was the general approach that employers of all sorts took to decisionmaking based on age, and the Labor Department surveys, for example, did include public agencies.

Many... there were... Congressmen referred to public agencies along with private employers in '67, and what Congress was finding in 1967, based on the information it was receiving, was essentially a pervasive problem in our society of how people look at older workers.

Chief Justice Rehnquist: You say that Congress was addressing its attention to invidious discrimination and yet, in our Murgia case, we said in effect that there wasn't, under the Constitution, invidious discrimination when you classify it on the basis of age, so can Congress change that constitutional law?

Mr. Collins: No, Congress is not changing constitutional law, Mr. Chief Justice, and in Murgia the Court did not say that there could never be unconstitutional or invidious discrimination based on...

Chief Justice Rehnquist: No, but certainly it approved the use of stereotypes.

Mr. Collins: I would not... not a stereotype of the sort that Congress was concerned with in the statute.

It approved a generalization, but what Congress...

Chief Justice Rehnquist: Well, what's the difference between a generalization and a stereotype?

Mr. Collins: Well, I would say the difference, Mr. Chief Justice, what Congress...

Chief Justice Rehnquist: I would like your answer to that question, not what Congress...

Mr. Collins: One can make a generalization regarding any classification which is for the most part true but will have certain exceptions, and which is essentially grounded in a rational determination.

One can have a stereotype, which is what Congress found to be happening with regard to age, where one has a generalization that first of all is not accurate even on the average, which is what Congress... what the Labor Department determined and what Congress accepted, and which reflects not a rational assessment of qualifications, but a prejudice, an unfounded prejudice.

Justice Scalia: Any unfounded prejudice is unconstitutional.

Mr. Collins: At least...

Justice Scalia: I mean, I find it extraordinary that Congress would have felt the need to enforce the Fourteenth Amendment in an area where there was no opinion of this Court saying that the Fourteenth Amendment was violated, and a suggestion that it wasn't violated.

Congress just went ahead and identified on its own this serious constitutional violation that had been occurring throughout the United States that, the existence of which is not reflected in a single opinion of the Supreme Court.

Mr. Collins: Justice Scalia, the judgment Congress made is in no way inconsistent with anything reflected in the decisions of this Court.

What the Court had said in Murgia and Vance and Gregory was not that age in general, or certainly not always, is a rational basis for decisions.

The Court in those cases looked at the particular jobs in question, looked particularly in Gregory at the difficulty, in the circumstances, of making individual judgments, and found a rational basis under a form of...

Justice Scalia: Do you think it's unconstitutional... suppose a State says, you know, we just don't have enough jobs.

We're just concerned, and we're going to increase the number of jobs in the labor force by having mandatory retirement at age 55, no indication that people can't do the job after that, and that is unconstitutional.

Mr. Collins: That kind of a judgment would be closer, Justice Scalia, because it would not be based on the kinds of stigmatizing attitudes towards people's ability that Congress found to be pervasive.

What Congress found to be the basic reason that older workers were not being retained were stereotypes about their qualifications, not economic judgments of the nature of...

Chief Justice Rehnquist: But in Murgia... in Murgia, it wasn't economic.

It was what you might call stereotypes about going downhill after a certain age, which...

Mr. Collins: But...

Chief Justice Rehnquist: a lot of us can testify to.

Mr. Sutton: [Laughter]

Mr. Collins: But Mr. Chief Justice, I think two points are crucial about Murgia and Vance and Gregory.

First, the Court emphasized the nature and in some instances the evidence about the particular jobs that made it rational to conclude there was a significant problem of inability of older workers, and an impossibility of making individual determinations.

And secondly, and equally important, the Court emphasized that it was applying a mode of review that applies when the courts are acting without congressional guidance.

As the Court said in Cleburne, standards of review are rules the courts devise when Congress has not spoken, and that were being applied to legislative judgments where the legislators don't... can't be called into court to explain all their reasons.

The Court in fact emphasized that one of the justifications for the limited role the courts play in reviewing age-based classifications is that age is a matter that the political process can deal with.

It's not a discrete and insular minority, and Congress...

Chief Justice Rehnquist: Well, was the suggestion that the political process could deal with it by making new constitutional law?

Mr. Collins: No, Mr. Chief Justice, and we don't believe that's what's been done here.

The basic constitutional law here is that you cannot use arbitrary classifications where they are too attenuated.

This Court has said, for example, property ownership, it's not a suspect classification, but the Court held unanimously in 1989 that it violated the Equal Protection Clause to deny certain Government positions to people because they didn't own property.

Chief Justice Rehnquist: Yes, and if Congress had addressed itself in the ADEA to simply arbitrary and irrational judgments based on age, but it seems to me it went a good deal further than that and said that between 40 and 65, that you simply could not discriminate in any way between these people.

Mr. Collins: It didn't go quite that far, Mr. Chief Justice, and I think actually it established a scheme which is more proportional to the Equal Protection Clause core than in the voting rights cases, for example, because what Congress did, it recognized, it learned from the Labor Department that there are some instances when employers rely on age in a noninvidious, rational way.

One area was benefits.

Another was where an employer can show that some older workers, because of their age, are unable to perform satisfactorily, and it's not practical to make individual determinations, as was the situation in Gregory, for example, as the Court emphasized.

Sometimes you can't.

Congress allows reliance on age in that circumstance.

So what Congress has fashioned here is a system of proof and defenses which, we submit, is well-calculated to get at the arbitrary, invidious discrimination that Congress was aiming at.

Justice Scalia: Is there any indication in the statute or, as far as you know, in the legislative history that Congress believed that such invidious discrimination by the States was unconstitutional?

Mr. Collins: There's no reference to the Constitution, Justice Scalia.

Justice Kennedy: That's extraordinary.

Mr. Collins: There are comparisons to title VII and to other discrimination statutes which Congress certainly knew had been passed to deal with constitutional problems, but of course...

Justice Scalia: You're saying Congress took this action in order to enforce the Fourteenth Amendment, but makes no reference to the Fourteenth Amendment in the text of the statute, or any reference to the fact that it thought this action was unconstitutional.

Mr. Collins: That's correct, Justice Scalia.

That was the case in Fullilove, and that was the situation, of course, in Wyoming, where the Court...

Chief Justice Rehnquist: Fullilove has been overruled.

Mr. Collins: Not on the point that Congress' section 5 power could be considered as a source of the statute, despite the fact that Congress hadn't mentioned the Fourteenth Amendment.

It's been overruled in terms of the substantive analysis of when one can take race into account in that context, but the lead opinion in Fullilove, and even the dissent, both said we will view this... we will analyze this as legislation adopted under section 5 of the Fourteenth Amendment, even though the fact was Congress had not referred to that.

And the Court has always said that what we do when we review the permissibility of a congressional enactment is to look at what Congress has done and see, with a presumption of constitutionality, whether there is any constitutional power to support it.

The Court has never required that Congress identify the power it's invoking.

Chief Justice Rehnquist: But it's one thing to say you're acting under section 5, which gives the enforcement power to Congress, but then for Congress to go and say we're acting under section 5 but we don't even mention what constitutional provision we're talking about seems strange.

Mr. Collins: But I submit, Mr. Chief Justice, that if Congress has made clear its judgment as to the nature of the conduct it is dealing with, and it made that clear here not only in '67 but in the '74 legislative history that it believed it was dealing with arbitrary, invidious discrimination, it seems to me the fact that Congress did not then finish the sentence and say, and that violates the Constitution, is not dispositive as to Congress' possession of the power to enact the statute.

Argument of Barbara D. Underwood

Chief Justice Rehnquist: Thank you, Mr. Collins.

Ms. Underwood, we'll hear from you.

Ms Underwood: Mr. Chief Justice, and may it please the Court:

The Age Discrimination Act was passed after Congress heard extensive evidence that employers were refusing to hire people over the age of 40 on the basis of myths and stereotypes.

People in their forties and fifties who lost their jobs or reentered the job market after child-rearing couldn't find new jobs because of this prejudice.

The legislative findings say explicitly that older workers are, quote, disadvantaged in their efforts to retain employment and especially to regain employment when displaced from jobs, and when Congress extended the ban on age discrimination to public employers in 1974, public employers State and Federal, it did so on the basis of evidence that public employers were also engaging in this arbitrary and irrational discrimination.

It had evidence in the form of an extensive report that had been done in the State of California...

Justice Scalia: Oh, excuse me.

It's arbitrary and irrational as to any particular individual, but it's not arbitrary and irrational in gross.

Ms Underwood: Well...

Justice Scalia: Which I thought is the usual test for rational basis scrutiny.

Ms Underwood: Actually, the...

Justice Scalia: I mean, in gross you could say, you know, I'm better off hiring people under 60.

Is that an irrational calculation?

You can say it's irrational as to this individual.

You can't say for sure that he can't do the job just because he's over 60.

But if I make a generalization, I'm better off having younger workers, is that irrational?

Ms Underwood: The evidence before Congress was of a decision that was common, and it was irrational.

It wasn't under 60, Justice Scalia, it was under 40, and what Congress found was that employers that... there were studies that showed that more than half the jobs in the workplace were closed to people under 40, or under 45...

Justice Scalia: So is that irrational?

Is that irrational?

Ms Underwood: And what they...

Justice Scalia: I want to hire somebody who will be with my company for a long time.

I don't want somebody that's going to be retiring relatively soon.

Ms Underwood: And what Congress found was that those decisions were predominantly based on beliefs that Congress also found, on the basis of studies, to be false, that...

Justice Breyer: But that's not false...

Ms Underwood: It is...

Justice Scalia: if the person who's 40 is going to be retiring sooner than the person who's 20.

How is that false?

Ms Underwood: It's false...

Justice Scalia: Now, you can say as a policy matter we shouldn't allow this.

Justice Breyer: That's fine.

Ms Underwood: It's false...

Justice Scalia: But to say that it's unconstitutional because it's irrational, I... it just boggles my mind.

Ms Underwood: The studies before Congress showed that in fact younger employees did not stay with companies longer than people who joined them at the age... in their forties and fifties.

It's true, Justice Scalia, that in principle, if one were speculating about the probabilities, one might suppose that.

But the studies showed that while they may leave for different reasons, they leave more often, not less often than older workers.

The studies showed that it's... that the workers in the protected class were not more often absent, did not... were not less loyal, that is, did not move around, and were not less productive.

That's the evidence...

Justice Scalia: And didn't retire sooner.

Ms Underwood: They didn't leave sooner.

Obviously, they left for retirement sooner than younger workers left for retirement, but younger workers...

Justice Scalia: Exclude one reason.

I mean, you can exclude one reason for losing the worker, and that's not irrational.

Ms Underwood: Well, what Congress found was that the reasons actually used by employers, namely, the belief that they were less productive, more often absent, and left sooner, were false, that that's what the studies showed, and that that's the belief on which the employers were by and large acting, and on the basis of that kind of information, Congress passed this law.

Justice O'Connor: Well, at the very least there wasn't any focus, was there, on State action?

Ms Underwood: There was, even in 1967 when the law was passed, evidence before Congress about State action, although...

Justice O'Connor: There's just very little reference to State action, and don't most States have their own age discrimination laws today?

Ms Underwood: Well, by now they do.

Actually, when the statute was...

Justice O'Connor: They certainly do now.

Ms Underwood: When the statute was passed in '67, there were only a few.

When the statute...

Justice O'Connor: Could not these very plaintiffs have pursued State law actions?

Certainly Florida has actions...

Ms Underwood: It's actually not clear about the Alabama plaintiff.

There's a question...

Justice O'Connor: But Florida clearly has laws.

Ms Underwood: Florida has laws.

The existence of State laws doesn't suggest that there's not a problem.

In fact, to the contrary.

It suggests that the States recognize that there's a problem and, in fact, the State officials charged with enforcing the laws that were in effect, the State laws that were in effect in 1974, were eager to have Federal law passed because they said they didn't have the resources or the ability to enforce their laws adequately, so they didn't feel displaced but, rather, supported by the Federal effort.

And the fact that States as a matter of policy prohibit age discrimination doesn't mean that States as employers don't engage in it.

Indeed, the extensive California study that was before Congress was exactly such a case.

It was a State with an employment... with an age discrimination law, and yet the studies that California had done established that age discrimination was rampant in the public service in California, and that further legislative efforts and administrative efforts would be necessary to do something about it.

Justice Ginsburg: Ms. Underwood, in that respect it resembles title VII, doesn't it, because there were EEO laws in the States long before title VII came on the books, and I believe when title VII was extended to public employment, State and Federal, the vast majority of States had their own antidiscrimination statutes.

Ms Underwood: That's correct.

It's never... it would be surprising to think that the existence of race discrimination and sex discrimination law somehow eliminated the race and sex discrimination problem and made it unnecessary even in public employment, and made it unnecessary for a Federal law to address a problem either in the workplace at large or in public employment generally.

Justice Scalia: Of course, the reason for the unconstitutionality of race discrimination is not some generalized notion that it's irrational, but the explicit constitutional prohibition of it.

That's quite a different...

Ms Underwood: That's correct, although the history of sex discrimination is a little bit more ambiguous.

That is to say, at the point at which Congress extended the title VII to the States, this Court had not yet held that sex discrimination requires heightened scrutiny, and it still hasn't put it in the same category as race discrimination, and nevertheless, it is appropriate for Congress to... this Court has endorsed the proposition that title VII is proper legislation even against the States.

Justice Scalia: Maybe, but I've never heard it argued on the basis of irrationality, that the reason Congress can do this is that sex discrimination is irrational, and therefore... and therefore title... the Fourteenth Amendment is triggered.

Ms Underwood: The fact that age discrimination is not entitled to the same kind of constitutional scrutiny as race discrimination and therefore has to be irrational before it's unconstitutional, as distinguished from the different tests that would be applied to race, doesn't put it beyond the race, the reach of the Protection Clause or beyond the reach of Congress.

When this Court analyzed in Romer and in Cleburne, this Court was looking at grounds of discrimination that are not entitled... have never been held entitled to strict...

Justice Ginsburg: But...

Ms Underwood: or even heightened scrutiny.

Chief Justice Rehnquist: But Ms. Underwood, by that standard, things that are dealt with on a rational basis approach, zoning decisions and that sort of thing, they're all within Congress' section 5 power under your view, because there can be existent cases of arbitrary exercises of that authority.

Ms Underwood: Well...

Chief Justice Rehnquist: And I presume Congress could then address the subject.

Ms Underwood: Well, Congress... what happened here isn't that Congress identified an occasional instance of arbitrary use of age and provided a remedy.

It found that there was widespread use of a class-based stereotype, that it also found was false, that was depriving people of the ability to make a living, which is... I'm not suggesting that's a fundamental right, but that it was having sufficient harmful impact to warrant Federal intervention.

Chief Justice Rehnquist: What if Congress were to look over a whole bunch of zoning decisions and say, there's just evidence throughout the country that people are being deprived of their right to make the best use of their property by these zoning decisions, so we're just going to make it a Federal statute that allows you to bring everything in Federal court.

Ms Underwood: No, I don't think that would be an appropriate exercise of the section 5 power.

That wouldn't involve a determination... now, if Congress were to find that a particular class on the basis of stereotypes and myths about that class, were being regularly...

Chief Justice Rehnquist: Well, let's say their class is developers.

Ms Underwood: Well, I think that a... the kind of person... class-based judgment based on personal characteristics have traditionally been the subject of persistent discrimination that has a kind of impact on an individ... on a group...

Justice Kennedy: Don't you think that the far-reaching nature of these questions respecting Congress' power under the Fifth... Fifth Clause of the Fourteenth Amendment is a reason why we should insist on a very clear statement of intent to abrogate in the first place, then Congress could have these debates.

Congress did not have this debate that we are having here.

Ms Underwood: Congress...

Justice Kennedy: It didn't come to anything close to it.

Ms Underwood: Congress had the debate about the rationality of the use of age.

That was extensively debated.

It was in years of hearings and reports, and it was discussed on the floor.

Justice Scalia: Ms. Underwood, when Congress makes a conclusion of irrationality regarding the treatment of some insular minority within the electorate, I'm inclined to credit it.

When Congress makes such a determination of irrationality with regard to the treatment of a body of voters that is enormous, I am a little more skeptical.

Ms Underwood: Well, I'd like to mention...

Justice Scalia: And a body of voters that changes.

I mean, we're all going to be old.

It's unlike other personal characteristics that you mentioned, race, sex and so forth.

Some of us never have to worry about that, right, and you cannot say that about age.

We're all going to be old, and therefore you can assume that the laws regarding what happens to the elderly will be more fairly... will be more fairly adopted than those regarding race or sex.

Ms Underwood: Well, I think you've identified a distinction, but that doesn't mean that Congress didn't have the power to find what this Court couldn't.

I'd like to save the balance of my time for rebuttal, if I may.

Chief Justice Rehnquist: Very well, Ms. Underwood.

It's you rather than Mr. Collins, then, who will do the rebuttal.

Ms Underwood: That's correct.

Justice O'Connor: Very well.

Argument of Jeffrey S. Sutton

Chief Justice Rehnquist: Mr. Sutton.

Mr. Sutton: Thank you, Mr. Chief Justice, may it please the Court:

In 1974, Congress became the 26th legislature in the country to enact an age discrimination law that applied to public employees.

In 1983, 7 years later, this Court in EEOC v. Wyoming held that the Age Discrimination Act was permissible Commerce Clause legislation that applied to the States.

We do not challenge that holding.

In the Wyoming case, four justices also reached the question whether the age laws were permissible section 5 legislation.

They concluded that they were not.

We agree with that reasoning for two reasons.

First, Congress failed unmistakably to abrogate the States' immunity from suit and, second, lacked the power to do so.

As to the clear statement point, I'd like to pick up on some of the questioning in the first half of the argument.

There are two principal problems, we would submit, with the clear statement claim petitioners have made.

First of all, they have read 626(c) out of the statute.

The court enforcement provision that has existed in 626(c) from 1967 all the way to the present accomplishes nothing if petitioners' reading of the incorporation argument is correct, and that's the first problem.

The second problem is 626(c), even on its own terms, and I would even submit 216(b), does not suffice precisely for the reason Justice Kennedy identified, that the phrase, court of competent jurisdiction, still creates an ambiguity about abrogation.

Indeed, that's exactly what the Court recognized in the Missouri Employees case.

Justice Scalia: Mr. Sutton, I don't understand this argument of yours.

How does 626(c) have independent effect under your interpretation?

I mean, it seems to me under either one it's swallowed up by the later provision, the incorporation of section 216, no?

Mr. Sutton: Yes, Your Honor.

Our position is that in incorporating some of the powers and remedies of the FLSA enforcement provision, this is simply not one of the ones that was picked up, for the basic reason that the 626(c) enforcement provision already existed, was not repealed in 1974, and has not been repealed since, so in order to credit petitioner's argument one must assume that Congress did a useless act.

The useless act was to have 626(c), the very first sentence, still in existence after 1974, and it's an accepted canon of construction that Congress doesn't do a useless act, that the words of every statute have some purpose and meaning.

That may not be the best reading of all of these statutes, but that's not our burden.

Our burden is simply to show that it's a plausible one, and that they have not left any reason beyond a doubt that their reading is the correct one.

Justice Breyer: When I put these statutes together by using quotes and brackets and so forth, I got the following: bracket, the ADEA, bracket, shall be enforced in accordance with the, bracket, quote, following, quote, provision

A suit for violation, quote, may be maintained by, quote, any employee, quote, against any employer including, quote, a State or a political subdivision of a State, end quote, in any Federal, dot, dot, dot, court of competent jurisdiction.

Now, if I put them together, how could it be clearer?

Mr. Sutton: Two problems, Your Honor.

First of all, the...

Justice Breyer: If I put them together right.

Mr. Sutton: First of all, the problem that Justice Kennedy identified, the phrase, court of competent jurisdiction by itself is ambivalent, the reason being there are two issues in an abrogation case.

The first question is whether the subsequent provisions of the law have been extended to the public agency.

We don't dispute that.

They have been extended.

But the second question is whether one of the principal defenses to those claims has been abrogated.

There's plenty of reason to have a statute that reads just as you've read it.

I would point out that you've used several subchapters and incorporated several of them, but I admit correctly under petitioner's reading.

The problem with it is, you could still have a situation where you need that statute for a Federal Government action against a State for money damages, which is permissible under the Eleventh Amendment.

You could have a situation in which you bring such claims in Federal Court and the State waives its immunity from suit, which is permissible, or you could have Justice Kennedy's situation, where such claims are permissible in State courts of competent jurisdiction where there's a waiver.

But your reading does leave a redundancy, and the redundancy is in 626(c)(1), and the thing I've not heard raised or shown by petitioners is how 626(c)(1) accomplishes anything.

It's at page 93a of the cert petition.

Justice Ginsburg: If that section had been repealed, would you then agree that there had been a valid abrogation, or are you arguing in effect that Congress must say in so many words that the Eleventh Amendment immunity, the States shall not be immune under the Eleventh Amendment?

Mr. Sutton: Our case gets much harder, Your Honor, at that point.

In effect at that point I'd be saying that it didn't even suffice for the FSLA, which of course is a difficult argument.

In 1973, the Missouri Employees decision came out saying the abrogation was insufficient.

One year later, they did amend the statute, clearly for the purpose of correcting that problem.

Justice Ginsburg: Without saying, and the Eleventh Amendment is hereby abrogated.

Mr. Sutton: And they've not used what we'll call magic words to say the Eleventh Amendment, so my case...

Justice Ginsburg: So what would you here... if you say, you don't need those magic words, what in addition to the repealing of the section... whose number I forgot, what, in addition, would it have taken?

Mr. Sutton: Just what we have in Seminole Tribe, which is several mentions of the phrase, State, in the enforcement provision, the State itself, not just in the court enforcement provision, but throughout the whole remedial scheme.

Justice Ginsburg: How about title VII?

Mr. Sutton: Well, title VII is... does mention the public body in the scheme itself.

In other words, when they made the amendment, I think it's in '72, to extend title VII to the States, they mentioned State in the enforcement provision, and so that does suffice.

Justice Ginsburg: Although they didn't say the immunity under the Eleventh Amendment is abrogated.

Mr. Sutton: That's true, they did not, Your Honor.

Justice Ginsburg: And so they could have been thinking of State in an Ex parte Young sense, the injunctive relief.

Mr. Sutton: That is true, and I think that is an ambiguity, and I think that's one of the things that Justice Kennedy's question prompts, is the question...

Justice Ginsburg: So you think Fitzpatrick v. Bitzer was decided wrongly.

Mr. Sutton: No, Your Honor.

No one raised the clear statement question, and I'm not saying... I don't want to be mistaken, and I hope I didn't misspeak.

I'm not saying there is an insufficient clear statement in title VII.

That's... we don't take that position.

In fact, we think the title VII case is very much like Seminole Tribe and is controlled by it.

If I could, I'd like to switch to the power question.

Justice Kennedy: Just before you get there...

Mr. Sutton: Yes.

Justice Kennedy: Has either Florida or Alabama permitted a suit in its own court, waived sovereign immunity in its own courts, in State courts?

Mr. Sutton: Your Honor, there are published Florida opinions where there are money damages actions brought against public employees in State court against Florida, public employers, as to...

Justice Kennedy: Under this statute?

Mr. Sutton: Oh, under that... I'm... excuse me, Your Honor.

I'm not aware of that, and I don't know the answer.

My assumption is that most of these claims are brought in Federal court.

Keep in mind, and Hallett v. Rose was a case that came from Florida, it would be a difficult situation for a State to abrogate immunity as to State law age discrimination claims and then not abrogate it as to Federal claims.

Chief Justice Rehnquist: Howell wasn't the State, was it?

Justice Kennedy: I mean, wasn't it a county or something?

Mr. Sutton: It was a county, Your Honor.

I'm not saying it would be controlling, but I'm just raising the issue, and I think the issue would be, at least in the language of Hallett, and Justice Stevens can back me up, the language of Hallett would be the question of whether the State is discriminating against Federal rights, and that could potentially be a problem.

I'm not taking a position one side or the other, but it is in an issue.

Justice Breyer: Can I quickly ask you on that 626(c)(1), it looks as if its there either to specify legal and equitable or for the purpose of putting in the proviso.

Mr. Sutton: Right.

Right, Your Honor.

Well, the proviso, we're not referring to the redundancy there.

It would be the first sentence...

Justice Breyer: Wall, you could write (c)(1) in order to put in the proviso.

You want to know why did Congress write it if the other thing means what it says, and the answer could be, because they wanted to stick in that proviso.

Mr. Sutton: Uh-huh.

Well, let me answer the first question, which it turns out is a little easier than the second.

As to the first question, 216(b), the so-called incorporated provision, also refers to legal or equitable relief, so in that sense they are utterly... they are utterly redundant.

As to your second point, I suppose that is a conceivable argument, but again I would go back to what my burden is, is not to rebut every conceivable argument, but to show that it wasn't clear.

As to power, City of Boerne makes clear that there were two inquiries.

The first is... and I want to be clear, two inquiries when it comes to prophylactic legislation.

That is, section 5 legislation that goes beyond what in this case the Fourteenth Amendment requires.

The first inquiry is whether there is a sufficient predicate for imposing extra constitutional requirements on the States.

The second is whether the section 5 law at the end of the day is, in fact, proportional.

As to the predicate, we would submit that, while there may well be age discrimination in an Article I sense in the States, in the Federal Government, in the private sector, when it comes to Fourteenth Amendment equal protection discrimination by State employers, the record shows absolutely nothing.

First of all, the law was extended in 1974.

Murgia isn't even decided until 1976.

The whole concept of constitutional violations regarding the elderly wasn't even on the radar screen in 1974, and that's exactly why the Congressional Record is so silent.

It wasn't something anyone was debating.

But even if one goes beyond 1974, and we think that would be permissible, all the way to the present, looking at cases from this Court, the State courts, the Federal courts, the record is still silent.

Now, the Federal Government in its reply brief has identified three cases.

These, by the way, are the only three cases that have been identified so far in the briefing in this case regarding State discrimination against the elderly under the Equal Protection Clause.

None of them suffice.

First, for the most obvious reason, none of them involve State employment.

Every single one of them dealt with State laws.

They didn't involve State employers violating the equal protection rights of their State employees, which after all is just what the ADEA is about.

One of the cases, the Seventh Circuit case, was on a motion to dismiss, a situation where the State simply hadn't supplied any rational basis, and the court of appeals properly said, at a minimum, you've got to give us something, and rejected the motion to dismiss.

There's no indication that there was a constitutional violation.

The second case is even worse.

That's a case in which the discrimination was against 22 and 21-year-olds who were denied the opportunity to live off campus in college.

23-year-olds were given that right.

Well, there was a violation of the U.S. Constitution, but it was certainly not one that helps prevent discrimination against those over 40.

And the third case from Colorado is a State court case, involve violations under the State and U.S. Constitution, which of course precluded review here and again did not involve a State employee.

But again, Congress does have authority to do more.

In other words, they don't have to wait till a record of violations piles up and suddenly act after there have been 50 or so.

There's no doubt they can head the problem off, cut it off at the pass, but there's no such threat, and to use the words of Florida Prepaid, any such harm is exceedingly speculative, and the reason it's speculative, we would submit, is if you look at page 38 in our brief, we've identified what I think are eight preconditions for an equal protection violation by a State employer to go unremedied.

First, the States would have to not properly enforce their age discrimination laws, which, after all, overprotect the constitutional rights of their employees.

Then the State and Federal lower courts would have to deny relief under the Equal Protection Clause.

This Court would have to deny relief under the Equal Protection Clause.

The individual would not be able to get Ex parte Young relief in Federal court, which is, after all, still permissible after EEOC v. Wyoming.

The EEOC as a Federal agency would have to decide that however grave this violation was, it wasn't important enough for them to bring the action for money damages in Federal court and then, perhaps most importantly, the judgment in Vance v. Bradley that even improvident decisions by State and Federal Governments usually are corrected by the political process, and one would presume that would likely be the case in that particular...

Justice Scalia: Of course, seven out of those eight steps can be eliminated by the simple fact that the elderly employee just says, life is too short, and doesn't seek litigation.

I mean, that would jump over seven of the eight.

I mean, it's possible that it is a problem, but people just haven't had the time or the incentive or the gumption or whatever to sue about it.

Mr. Sutton: No doubt, Your Honor, but that is not a problem the ADEA is going to cure.

If they're not going to use the State laws, if they're not going to use the U.S. Constitution, the State constitution, the political process, it seems to me exceptionally unlikely...

Justice Ginsburg: Doesn't the ADEA require you to touch base with State law?

That is, before you can institute a Federal suit, mustn't you invoke the State process?

Mr. Sutton: That is true, and there's a 60-day wait before you can bring a Federal action, but there's nothing about the age laws that require you to wait.

All one has to do is file in State, and it can be rather informal, just with the Human Rights Commission, and at that point there's a 60-day timetable before you can bring a Federal court action.

There's no requirement, which would be, I think, somewhat respectful of the State...

Justice Scalia: There's no exhaustion requirement.

Mr. Sutton: Excuse me.

Justice Scalia: There's no exhaustion requirement.

Mr. Sutton: Exactly.

Exactly, so you do have the precondition of filing in State court, but there's no requirement that you sit and wait and see if you get State relief.

Justice Ginsburg: Well, there's one point in this that puzzles me.

I think I heard you concede that there could be an action for injunctive relief, an Ex parte Young relief, forward-looking, against a State that is maintaining a practice of discriminating against people over the age of 40.

Did you say that that legitimately under Ex parte Young the State could be sued?

Mr. Sutton: I... I'm sure I did, and I most clearly misspoke.

It would have to be an action against a State official under Ex parte Young.

Justice Breyer: Yes, I mean that.

Justice Souter: Last...

Mr. Sutton: Okay.

Well, no, then I... my... I'm pretty sure I made that concession.

Justice Ginsburg: Okay.

So we have action against a State official...

Mr. Sutton: Right.

Justice Ginsburg: to stop using this formula to calculate salaries because it discriminates against older people, stop order from the Federal court.

Armed with that stop order, could the employee then go into his State court, which has a State law that waives the State sovereign immunity in its own court, and say, here's my Federal judgment, it says the practice was illegal, that's issue preclusion, now figure out what compensation I'm owed?

Mr. Sutton: Well, Your Honor, that raises some of the questions we were addressing earlier, and that's whether the State waiver with respect to claims under State law constitutes a waiver for Federal law claims.

That would be one problem we have there.

Justice Ginsburg: But it's not a Federal law claim.

It's a State law claim, but the fact question, was there discrimination against older workers under this formula, has already decided, been decided in the Federal court.

Then the worker comes to State court, suing under State law, and all he's saying is, this fact issue has been precluded, so the only thing that the State can do, following ordinary rules of issue preclusion, is to figure out how much.

Mr. Sutton: Your Honor, the premise of the question about ordinary rules of issue and claim preclusion, and I'm certainly underarmed against you on this particular issue, if that is correct, I think that would be a problem.

Chief Justice Rehnquist: Wouldn't that depend on State law?

Mr. Sutton: Absolutely.

I mean, if they... that's exactly what I'm saying.

If those rules of issue and claim preclusion do apply in State courts under State law, then there's no reason you couldn't do it, just for the same reason you couldn't go in reverse.

If you won under... in a State claim under Federal law, if the Federal rules of issue and claim preclusion permitted it, you could do the same thing in Federal court, but again, on the assumption that those rules of preclusion did apply, and permissibly applied as to claims in one court based on...

Justice Ginsburg: But I don't follow the beginning in the State, because you'd have no reason to go into the Federal court for Ex parte Young injunctive relief if you win on the merits in the State, where you could get both.

Mr. Sutton: That is true.

I'm just saying as a...

Justice Ginsburg: And you might be... if you tried it, that, encounter a problem of splitting your claims.

Mr. Sutton: No, I'm just saying as a theoretical matter, one could.

I'm not saying it would be a practical thing to do.

The second problem with the ADEA is one regarding proportionality, and the proportionality problem I think is best illustrated by this Court's decision in Western Airlines v. Criswell, which dealt with an age law claim, and it was actually a situation in which the corporate employer came in and tried to win the age claim on the grounds that there was a rational basis for the disparate treatment of an individual over 40.

And the Court quite categorically made clear that rational basis review does not apply in an age claim, and in fact said that that's a virtually unreviewable standard, and one in which an employer would always win.

In fact, there would be no reason even to go to a jury in an age claim and...

Justice Souter: Well, does that... given your argument, does that as a practical matter entail that there simply cannot be general statutory enforcement of a first tier equal protection claim in the practical world, so that your position really is that you can enforce... Congress can enforce by general legislation antidiscrimination against suspect categories and so on, but that is really in practical terms the extent of the enforcement power under section 5?

Mr. Sutton: Well, Your Honor, they... and I think I'm answering your question... they can always pass legislation that creates a standard that parallels the equal protection standard and supplies...

Justice Souter: What would that... true, but what would that accomplish?

Justice Scalia: I mean, as a practical matter, what good would it do?

Mr. Sutton: Well, I...

Justice Souter: Why not simply leave it to the individual claimant to come in under 1983?

Justice Kennedy: That would...

Mr. Sutton: Well...

Justice Souter: Would there be any advantage?

Mr. Sutton: No, I... 1983 is an enforcement statute...

Justice Scalia: Yes.

Mr. Sutton: and I think you're right to suggest that there aren't going to be many situations where an individual is going to have a successful equal protection claim for discrimination against the elderly.

Justice Souter: On your view.

Mr. Sutton: Well, yes.

I...

Justice Souter: I'm not suggesting that as a cosmic matter that I am adopting your view.

Mr. Sutton: No, no, no.

[Laughter]

Justice Souter: I'm simply exploring your position.

Mr. Sutton: No, but I... and I'm answering it by referring to this Court's cases, and that would be under Murgia, Bradley, and Gregory v. Ashcroft, that that seems to me a very difficult standard to meet.

I mean, my guess is we could posit utterly irrational laws that discriminate on the basis of age and in which there was no rational justification, even after the fact, no conceivable basis, but that hasn't happened.

the Fourteenth Amendment has been around since 1868, and no one's found one yet, so it does strike me as very unlikely, completely unlikely up to now, and very unlikely into the future.

But Your Honor...

Justice Ginsburg: Mr. Sutton, where do you put sex discrimination, then, in the... because as I understand it, there's race and national origin and religion in title VII...

Mr. Sutton: Yes, Your Honor.

Justice Ginsburg: which all had something before the Civil Rights Act in 1964 to suggest that those were suspect categories, but sex discrimination, as I think was pointed out, even in the time title VII was extended, the only decision on the book was Reed v. Reed, and that applied a rational basis test.

Mr. Sutton: Yes, Your Honor.

Title VII, when it comes to gender discrimination, is an excellent example of the fact that Congress is allowed, as a predictive matter, to make its own judgment about what the Constitution means, and in 1972 it is true, when Congress extended title VII to gender discrimination, gender discrimination still received rational basis review.

That doesn't mean it would be impossible to use it, but it would have made it a lot more difficult.

In 1976, when Fitzpatrick was decided, or if this issue were reviewed today, it would not receive rational basis review.

It would get exacting scrutiny.

So Congress is fully entitled to make that predictive judgment.

The thing it can't do, as City of Boerne reveals, is, it can't make a predictive judgment and then impose it on the court.

Ultimately, when that section 5 claim gets to the court, it's the court's judgment as to what the Constitution means.

Now, as to remedies, the extent of them, Congress does get wide discretion, as City of Boerne confirms.

The other thing is, I think gender discrimination and really all of the protected classes in title VII not only are presumptively unconstitutional classifications, whereas age is presumptively constitutional, those are all instances where you're going to have a predicate of some violations.

Just looking at this Court's cases you're going to find that predicate, so the...

Justice Ginsburg: Could you add anything to the catalogue?

You said you recognize that Congress was making a prediction, which the court later bore out, in that sex classifications deserved exacting scrutiny.

Is there anything else that's not in the catalogue yet that could be there, that Congress could make a predictive judgment about, or are we at the limit?

Mr. Sutton: I couldn't begin to answer that.

I apologize, but I mean, I wouldn't even want to step into Congress' shoes on that point.

It seems to me they are allowed to look at that issue.

They are allowed to decide that perhaps there is a discrete and insular group with immutable characteristics that do warrant additional constitutional protection.

That judgment's entitled to some respect, but it's not entitled to complete respect.

When that case, and when that legislative judgment gets to this Court, it seems to me that's the important issue, and I'm not disagreeing with your question.

I don't think the important question is whether such classes are out there.

The important question is, what happens when that section 5 law gets to court.

And what happens is, this Court decides whether there's proportionality and whether there's a predicate for this prophylactic legislation, and if it turns out they predict correctly, well, it's really not that prophylactic.

It may be in most cases that the legislative standard parallels the constitutional standard, in which case there's not much of a section 5 inquiry.

Justice Souter: Do you take the position, when considering proportionality with respect to a first tier rational basis equal protection category, that it is irrelevant, or at least unnecessary for us to consider the defenses in the statute, e.g., bona fide occupational qualification and so on, and limitations on remedies?

In this case, I think the remedy is limited simply to back pay.

Are those things really irrelevant, because the burden of proof issue, and the scope of coverage which follows from it, is so dispositive that we never get to look at these other things like defenses and limited remedies and so on.

Mr. Sutton: Well, Your Honor, first of all I would say the defenses don't parallel Equal Protection Clause defenses, so that's one of the central arguments we're making, and I think it is borne out by this Court's decision in Western Airlines, but there are... it's true, there are things in the statute.

Justice Ginsburg identified one.

There's a 60-day waiting period before the claim can be brought in Federal court.

Elected State officials and their top staff are insulated from ADEA claims.

So it's true that...

Justice Souter: That certainly goes to federalism, but is it... do you take the position that it's irrelevant to the question of proportionality?

Mr. Sutton: No, it is relevant.

It just doesn't do the trick.

It's not even...

Justice Souter: It just doesn't get you across the line.

But in any case, you are taking the position that the disparity between the scope, as determined by the burden of proof, let's say in 1983 litigation, and the burden of proof under this statute, is not dispositive totally, without consideration of such factors as those that Justice Ginsburg and I have been mentioning.

Mr. Sutton: Just, when you say 1983 litigation, you're referring to litigation involving equal protection claims...

Justice Scalia: Yes.

Mr. Sutton: exactly.

Well, Your Honor, I do think it is unfortunately a contextual facts, fact and circumstances inquiry where you have to look at all of those things, but it seems to me at the threshold this Court's Western Airlines decision makes it crystal clear that on the one hand the age laws were designed to deal with prohibiting the employers from making the generalization that mental and physical acuity decline with age.

In contrast to that are this Court's trilogy of decisions where they say that is permitted by Federal and State legislatures, so that... that strikes me as a very serious threshold problem.

Now, it doesn't mean that you don't consider at all, it all.

In fact, I think we should embrace the fact that it is a fact and circumstances test, and that there is no Rosetta Stone here, and the reason that's good is because the greater the underlying violations, the more remedial power Congress ought to have.

So I think it's appropriate to embrace that fact and circumstances problem, because while it's difficult for this Court when it comes to drawing those lines, I think it's appropriate to have the freedom to give Congress much more authority in situations where there truly has been a record, in the case of voting rights a record of pervasive and systematic discrimination against certain classes...

Justice Stevens: Mr. Sutton, can I just ask one very minor question.

The facts aren't very clear, because everybody just got right to the legal issues.

Am I correct in assuming that in all three cases the plaintiffs are citizens of the same State that they're suing, so that this is not the real Eleventh Amendment, in my view of the two Eleventh Amendment problems.

Mr. Sutton: With that last caveat, yes, Your Honor.

Justice Breyer: Yes.

Mr. Sutton: That is true.

The... I would like to, if I could, in closing, it seems to us, we would respectfully submit, that the age laws are unlike any other prophylactic section 5 law this Court has ever upheld.

Instead of pervasive discrimination by State employers, we have a situation in which all 50 States overprotect the constitutional rights of their citizens.

Instead of a calibrated remedy that seeks to parallel the constitutional standard, we have an entirely new standard of review that directly contradicts this Court's decision in Western Airlines, and instead of systematic, constitutional violations of the protected class, we have absolutely none.

It would seem to me a sad and unfortunate irony to uphold this broadest of section 5 laws precisely in the areas where the State is not only respecting the constitutional rights of their citizens, but in fact overprotecting them.

Unless there are any other questions...

Chief Justice Rehnquist: Thank you, Mr. Sutton.

Mr. Sutton: Thank you, Your Honor.

Rebuttal of Barbara D. Underwood

Chief Justice Rehnquist: Ms. Underwood, you have 3 minutes remaining.

Ms Underwood: As to the fact that this Court has not found an age discrimination unconstitutional, I'd like to point out that this is no different from what happened with literacy tests for voting.

The Court upheld English literacy tests as a reasonable voting requirement, then Congress found that English literacy tests were being used invidiously and prohibited them, and this Court said Congress had properly used its fact-finding power to enforce the Equal Protection Clause of the Fourteenth Amendment.

As to the... well, in fact, this is stronger than that, because Congress in 19...

Justice Scalia: It's not quite parallel, because the discrimination there is discrimination on the basis of race or national origin, which was clearly unconstitutional discrimination, and the only issue was whether this device achieved it or not.

What we have here is whether the discrimination on the basis of age in and of itself is unconstitutional.

Ms Underwood: Well, no, it's whether... I think it's... the parallel is much stronger.

It's whether age discrimination which could in principle be proper, as literacy tests could in principle be proper, was being used in an unconstitutional, arbitrary, and irrational way, warranting congressional review, warranting a remedy under the enforcement power of the Equal Protection Clause.

As to the proposition that age is different from race and sex, Congress calibrated this statute to that.

The reason age was not put in the 1964 Civil Rights Act was that there was an awareness that there are proper uses of age, that seniority systems and pension plans and other decisions that are made in the workforce are properly calibrated to age, but there are also irrational and arbitrary ones, and so a separate study was commissioned and a separate statute was written to deal with precisely that problem, to tailor the remedy to the constitutional violation that Congress perceived.

As to Mr. Sutton's observation that there is no predicate for this, there wasn't then and there isn't now in the world, Mr. Sutton is right to focus on individual decisions of State employers.

That is what the act is largely aimed at today in view of the demise of mandatory retirement, but the reported cases under State and Federal statutes do show examples of irration... the same kind of irrational, unconstitutional, arbitrary age discrimination that Congress was concerned about, situations of employers essentially harassing and insulting an older worker because of his age, situations where a reduction in force was required and the employer simply went down the age list and reduced from the top down, and the allegation in this case is that...

Chief Justice Rehnquist: Would you say that was irrational under the... under our constitutional jurisprudence?

Ms Underwood: I would say that Congress... that it was irrational under our jurisprudence if it was based on the belief... false beliefs, as Congress found that these decisions were.

Chief Justice Rehnquist: Thank you, Ms. Underwood.

The case is submitted.

Attribution:

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