Frew v. Hawkins – Oral Argument – October 07, 2003

Media for Frew v. Hawkins

Audio Transcription for Opinion Announcement – January 14, 2004 in Frew v. Hawkins

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William H. Rehnquist:

Ms. Zinn.

Susan Finkelstein 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.

Antonin 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.

Is that right?

Susan Finkelstein Zinn:

No, it’s not immaterial.

The… Texas’ Attorney General is authorized by the legislature to represent the State and its employees–

Antonin 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?

Susan Finkelstein Zinn:

–Unrepresented by the State Attorney General.

Antonin Scalia:

Unrepresented.

You would–

–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?

Susan Finkelstein 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–

Antonin 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.

Antonin Scalia:

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?

Susan Finkelstein 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.

William H. Rehnquist:

And therefore it’s consistent with the Eleventh Amendment without any waiver.

Susan Finkelstein Zinn:

Correct.

The Eleventh Amendment is not engaged for that… for that–

David H. Souter:

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–

Susan Finkelstein Zinn:

–In… in this case–

David H. Souter:

–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?

Susan Finkelstein 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.

Ruth Bader Ginsburg:

And–

–There was no separate order.

It was just this consent decree that’s in the lodging.

That’s–

Susan Finkelstein Zinn:

That’s correct.

David H. Souter:

–that’s it.

Susan Finkelstein Zinn:

That’s correct.

David H. Souter:

Okay.

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?

Susan Finkelstein Zinn:

The same parties–

David H. Souter:

Wearing different… wearing different hats or proceeding under some different theory.

Susan Finkelstein Zinn:

–The same parties were before the Court for the entire case with the exception of two State agencies which were dismissed early on.

David H. Souter:

Right.

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?

Susan Finkelstein 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.

Ruth Bader Ginsburg:

The State, if… if I remember correctly, came before the judge and urged the approval of this consent decree.

Susan Finkelstein Zinn:

Correct.

Ruth Bader Ginsburg:

Did it not?

And there were… there were several representatives of the State who so testified.

Susan Finkelstein 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.

Antonin Scalia:

That… that’s your waiver.

That’s the waiver side of your argument.

Susan Finkelstein Zinn:

Correct.

Antonin 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?

Susan Finkelstein Zinn:

In our… in our view both positions are clear in this case.

The… the–

Antonin 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?

Susan Finkelstein Zinn:

–No.

In Lapides, it appeared to… to be a question of law.

Susan Finkelstein Zinn:

The issue–

David H. 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?

Susan Finkelstein Zinn:

–But in Lapides, it appeared to me that that was resolved fairly simply based on the application of Federal law to the State–

David H. Souter:

Once… once it was understood that he could represent.

Susan Finkelstein 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–

David H. 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.

Susan Finkelstein Zinn:

–But–

Antonin 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.

[Laughter]

Susan Finkelstein Zinn:

–I do too, Your Honor.

John M. Harlan II:

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….

Susan Finkelstein 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–

David H. Souter:

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–

Susan Finkelstein Zinn:

–Yes.

David H. Souter:

–rules, that then there must be a waiver?

Susan Finkelstein Zinn:

No.

David H. Souter:

All right.

David H. Souter:

How can they do that without a waiver?

Susan Finkelstein Zinn:

Well–

David H. Souter:

Especially if they’ve asserted their immunity at the beginning.

Susan Finkelstein 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–

David H. Souter:

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.

Susan Finkelstein 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–

David H. Souter:

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.

Susan Finkelstein Zinn:

–For example, damages?

Would that fit within your hypothetical?

Because in that case without waiver, no.

William H. 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.

Susan Finkelstein 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–

Antonin 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.

Susan Finkelstein 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.

Stephen G. 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.

Susan Finkelstein Zinn:

Correct.

Stephen G. 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.

Stephen G. Breyer:

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.

Susan Finkelstein Zinn:

Correct.

Stephen G. Breyer:

Ex Parte Young authorizes such a thing.

Susan Finkelstein Zinn:

Correct.

Stephen G. Breyer:

Now, is that last statement right?

Susan Finkelstein Zinn:

Yes.

Stephen G. Breyer:

So then it’s not outside Ex Parte Young.

You’re giving us an interpretation of what Ex Parte Young means.

Susan Finkelstein Zinn:

Yes.

William H. 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?

Susan Finkelstein 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.

William H. Rehnquist:

Well, I’m not talking so much about enforcement as about entering it in the first place consistently with Ex Parte Young.

Susan Finkelstein 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.

David H. 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.

Susan Finkelstein 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.

David H. Souter:

When you had–

–Would you help… excuse me.

May I ask one more question?

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?

Susan Finkelstein Zinn:

Well, I’d hate to put words into Mr. Cruz’s mouth.

Sandra Day O’Connor:

I know.

I should be asking–

Susan Finkelstein Zinn:

But I believe that is part of their claim.

–Okay.

May I reserve the rest of my time?

Very well, Ms. Zinn.

Mr. Gornstein, we’ll hear from you.

Irving L. 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.

Anthony M. Kennedy:

Suppose the Attorney General had not been involved and simply the State officials on their own entered into this consent decree.

Irving L. 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.

Anthony M. Kennedy:

So that would be a factual inquiry in every case whether the particular official–

Irving L. Gornstein:

Well, I would say… I would say it’s a legal question–

Anthony M. Kennedy:

–I understand.

Irving L. Gornstein:

–that typically in almost every State, Justice Scalia, it would be the Attorney General who is authorized to represent the State in litigation.

Anthony M. Kennedy:

Well, Justice Scalia can preserve his own hypothetical.

Irving L. Gornstein:

Right.

Anthony M. 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.

Irving L. 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–

Antonin 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.

Irving L. 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.

Antonin 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.

Irving L. 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–

Ruth Bader 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?

Irving L. 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.

Antonin 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.

Irving L. 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.

David H. 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?

Irving L. Gornstein:

Yes, but let… let me explain further.

David H. Souter:

I guess my question is–

Irving L. Gornstein:

Yes.

David H. Souter:

–why do you acquiesce in this phrase, going beyond Ex Parte Young?

David H. Souter:

Have you ever–

Irving L. Gornstein:

No, I–

David H. Souter:

–Has anybody seen a consent decree that simply said, we’ll obey the law?

Irving L. 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.

David H. Souter:

That’s all–

Irving L. 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.

Antonin 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.

Irving L. 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.

Antonin 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.

Irving L. 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.

Antonin Scalia:

The Attorney General was involved in the case in Rufo.

You said in all of the cases that you know–

Irving L. 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.

William H. Rehnquist:

–Thank you, Mr. Gornstein.

Mr. Cruz, we’ll hear from you.

R. Ted Cruz:

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

R. Ted Cruz:

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.

John Paul 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?

R. Ted Cruz:

It does not necessarily mean that and no court has determined that.

John Paul 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?

R. Ted Cruz:

Well, under Ex Parte Young, the question is not retrospectively was there a violation of Federal law, but… but–

John Paul 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.

R. Ted 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.

John Paul Stevens:

That’s right because the State, in effect, waived its right to adjudicate that.

R. Ted Cruz:

What the State did is pursue an option to settle the… the matter and avoid an adjudication.

John Paul 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?

R. Ted 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.

John Paul 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?

R. Ted 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.

Antonin 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?

R. Ted Cruz:

If the agreement was–

Antonin 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.

R. Ted Cruz:

–Well–

Antonin 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?

R. Ted 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–

Ruth Bader 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?

R. Ted 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–

David H. Souter:

Why?

Why would it be more difficult?

It seems to me this is more difficult.

You agreed to it.

R. Ted 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.

Anthony M. 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.

R. Ted 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.

David H. Souter:

No.

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.

R. Ted Cruz:

In essence–

David H. Souter:

So we’re in… it seems to me you’re in the same boat under Justice Ginsburg’s hypothetical.

R. Ted 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–

David H. Souter:

So in other… I take that to mean, yes, we would be making exactly the same argument–

R. Ted Cruz:

–Absolutely.

David H. Souter:

–if this had been a litigated decree.

We would… we would say that–

R. Ted Cruz:

Absolutely.

David H. 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.

R. Ted Cruz:

Under Milliken, the question would be the relation–

David H. Souter:

No.

I want to know under you.

[Laughter]

On your theory, isn’t that going to be your answer?

R. Ted 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.

David H. 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?

R. Ted 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.

David H. 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. We may or may not succeed, but we can always object to it, even though we haven’t appealed it.

R. Ted Cruz:

If there’s an ongoing injunction–

David H. 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.

R. Ted 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–

Stephen G. 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.

Stephen G. Breyer:

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?

R. Ted 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–

Stephen G. Breyer:

No.

I… I don’t… that’s not–

R. Ted Cruz:

–consent decree explicitly–

Stephen G. Breyer:

–That’s not answering my question at all.

So would you please direct yourself to my question?

R. Ted 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.

Stephen G. 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.

R. Ted 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.

Stephen G. 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?

Stephen G. Breyer:

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?

R. Ted 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–

David H. Souter:

You mean you can never move for modification prior to an enforcement action?

R. Ted 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–

Ruth Bader 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.

R. Ted 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–

Antonin 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)?

R. Ted Cruz:

–That–

Stephen G. Breyer:

Why not?

That’s–

–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.

It’s a totally different question.

R. Ted Cruz:

–My… my–

Stephen G. Breyer:

Right?

R. Ted Cruz:

–My hope–

Antonin Scalia:

So that’s your answer to Justice Breyer.

R. Ted Cruz:

–My… my hope would be–

Antonin Scalia:

But that… that leaves you with Justice Ginsburg’s problem.

Antonin Scalia:

[Laughter]

R. Ted 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–

John Paul 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.

R. Ted 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–

John Paul Stevens:

Well, but there are allegations of fact that would have… the allegations did allege a… a violation of Federal law, did they not?

R. Ted 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–

John Paul Stevens:

Yes, but that’s not an answer to all… the statute requires more than waiting for requests to be made.

R. Ted Cruz:

–But… but that really is the critical dispute because the statute, the Medicaid statute–

Anthony M. Kennedy:

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.

R. Ted 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–

Stephen G. 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?

[Laughter]

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.

Stephen G. Breyer:

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)?

R. Ted Cruz:

–Yes.

Stephen G. 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).

R. Ted Cruz:

And that’s what the Fifth Circuit treated what we did.

So we–

Stephen G. Breyer:

All right.

So then there’s no problem.

We’re all in agreement.

R. Ted Cruz:

–We will prevail either way.

Stephen G. Breyer:

So if we think you have a right to go in under 60(b), is that the end of the case?

R. Ted Cruz:

If… if what we did is deemed that, because–

Ruth Bader Ginsburg:

Mr. Cruz–

–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)?

R. Ted 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.

William H. Rehnquist:

Well, 60(b) is basically changed circumstances or changed law, isn’t it?

R. Ted Cruz:

It is.

And–

Ruth Bader 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.

R. Ted 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–

Ruth Bader Ginsburg:

Yes, but we’re talking about 60(b).

And I think the… the… you’re saying, well, this is essentially the same thing.

Ruth Bader Ginsburg:

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.

R. Ted 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–

Ruth Bader 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.

R. Ted Cruz:

–But–

Ruth Bader Ginsburg:

You could have said, yes, we are.

R. Ted Cruz:

–But what–

Ruth Bader Ginsburg:

You didn’t say that.

R. Ted 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.

Antonin 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.

R. Ted 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–

John Paul 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?

R. Ted Cruz:

–The State officials endeavored to improve the program–

To comply with the decree.

–But the decree was drafted as an effort to end this… this litigation.

John Paul Stevens:

Yes, but it imposed obligations on the defendants which they had to perform in… to avoid being held in contempt of court.

R. Ted 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.

Anthony M. 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.

R. Ted 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–

Anthony M. Kennedy:

These are just necessary procedures to implement the program and to make it work well.

R. Ted Cruz:

–I mean, the consent decree–

Anthony M. Kennedy:

And they were agreed to you by your client.

R. Ted 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–

Anthony M. Kennedy:

Well, suppose it were shown that the failure to do this caused serious flaws in the implementation of the program.

R. Ted Cruz:

–The Federal law requires–

Anthony M. 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.

R. Ted 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–

Anthony M. Kennedy:

But that’s… that’s the issue.

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.

R. Ted Cruz:

–Justice Scalia–

Antonin 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.

Antonin Scalia:

Why shouldn’t that be the end of the case?

R. Ted 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.

Ruth Bader 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–

R. Ted 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.

Ruth Bader 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.

R. Ted 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–

Ruth Bader 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.

R. Ted Cruz:

–The State acted in an attempt to avoid a long, protracted litigation.

We were hailed involuntarily before the Federal court.

William H. Rehnquist:

In Gunter, the State was also hailed involuntarily before the Federal court.

R. Ted 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–

William H. Rehnquist:

Well, you prevented it from happening by entering into the consent decree.

R. Ted 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.

John Paul Stevens:

Are you suggesting they filed a lawsuit they didn’t think they could win?

R. Ted Cruz:

They filed a lawsuit that was filed before Judge William Wayne Justice–

John Paul Stevens:

It was filed in good faith alleging violations of Federal law, was it not?

R. Ted 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–

Sandra Day 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.

R. Ted 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.

David H. Souter:

No.

But you’re saying then that the consent decree is basically a continuance.

R. Ted 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.

David H. Souter:

Right.

We’ll see… a consent decree means we’ll see you later.

R. Ted 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.

Antonin Scalia:

Only with the State Attorney General.

[Laughter]

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.

Antonin Scalia:

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.

R. Ted Cruz:

That–

Antonin Scalia:

But that’s not this situation.

Your Attorney General appeared and said, this is okay as far as we’re concerned.

R. Ted 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–

William H. Rehnquist:

Well, surely they had attorneys, State attorneys, representing them, did they not?

R. Ted 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.

William H. Rehnquist:

Thank you, Mr. Cruz.

Ms. Zinn, you have 4 minutes remaining.

Susan Finkelstein 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.

Susan Finkelstein Zinn:

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–

Antonin Scalia:

Would a change in administrations be a change of circumstances that… that justifies 60(b) being invoked?

Susan Finkelstein Zinn:

–No.

Indeed–

Anthony M. Kennedy:

Is there then a way to deal with the problem that Justice Scalia raised, which is a serious problem I think?

Susan Finkelstein Zinn:

–If a change in… in administrations results in–

Stephen G. 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.

Susan Finkelstein Zinn:

–Yes.

Stephen G. Breyer:

But it’s a known problem, and what’s your solution to it?

Susan Finkelstein 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.

William H. Rehnquist:

Thank you, Ms. Zinn.

The case is submitted.