the actions required by the supreme court's concurrence and proportionality test to show that it intended with appropriate legislation under section five of the fourteenth amendment to abrogate state of alaska's sovereign immunity from private sue for money damages the supreme court has determined that what constitutes appropriate legislation against the states congress must use a clear statement of its intent to abrogate sovereign immunity using fourteenth amendment powers congress must create a legislative record documenting a pattern of discrimination by elected state officials in violation of the fourteenth amendment and then the court has to do a balancing test it has to take the legislative record and match it up against the remedy that congress has enacted to see  put the expressed intent to act under the fourteenth amendment as part of the part of the clear statement doctor other cases say that's part of the legislative history requirement whether falls under both whether it falls under the clear sta process that was already there but from which they were exempted if you recall darragh has its own implementing regulations that are separate from title suddens regulations implementing regulations that answer your question i think maybe but it maybe i'm maybe you can clear this up for me as i understand it there was an amendment made to the civil rights act allowing state employee needs to come with entitled seven but exempted a certain group that was in one nine hundred seventy two craft right then in the act before  but the cases that i cited from the supreme court specifically blacks for where the supreme court explained that congress permitting a claim against the state is very different from congress abrogating the defense of sovereign immunity refers to title seven refers to a provision that applies to federal employees by definition that's a provision to tell someone that was not an actor pursuant to the fourteenth amendment because the fourteenth amendment doesn't apply to the federal government it applies to states an example of specifically carved out an exception for elected state officials and their staffers you know let me just ask for those state employees that came under the one nine hundred seventy two amendment there was no eleventh amendment congress identified in its legislative it's ok then when when we get to the current bill why can't they rely on the one nine hundred seventy two record because it deals with state employees it deals with a common problem and it merely excluded some of the state employees why did they have to go back and say the same thing again when it's an amendment to that very statute well congress and somebody to made that distinction between categories of state employees that would be covered in categories that work there was a sovereign immunity interest that didn't justify the extension of title seven now if you have seen or dated there's there's nothing is there in the record where the congress made an actual finding at that time that there's no need of a problem in this new this excluded group just seemed to me politically it wasn't going to happen well for senators made a finding they introduced an amendment on a majority of senators and house representatives agreed with them and acted the exemption so i would say that congress did make a finding that that remedy against elected state officials was not appropriate legislation and not necessarily they may have just found they're not going to do it well politically but then if congress in ninety one is going to reverse that decision made in one nine hundred seventy two it's got to have a legislative record the great lines that so the question is is the legislative record in seventy two sufficient if all they did was say ok we have evidence for all state employees but these are over here politically we're not going to touch later on we change our mind there why would they have to go back if the legislative record was for our state that there was a problem with state employees then an amendment is made that we're going to exclude these i don't quite understand why we're why that finding that there's a problem with all state employees isn't sufficient for this why they have to go back and redo it for this group because apparently they had it for all employees and then there was an amendment carving these people out so i think your question is you know why did congress making a distinction between sta seventy two when they could just covered them all you know and i think they could have incentive but once congress does make that distinction then they have to explain it in their legislative history why they're removing that distinction assume for the sake of right human that findings they made it covered all employees including the ones they subsequently excluded would they have to go back and make new findings for a group of only million for you know they decided later to exclude yes because in seventy two they determined that it wasn't appropriate legislation and so now to show that it is appropriate legislation there's going to have to be new findings that explains why it's appropriate legislation and if i was going to write that in an opinion i couldn't cite what you just told me i'd have to cite some case what whether what is the case i would rely upon in order to to come to that conclusion gregory versus ashcroft just go to gregory yeah in fact if you look at  stevens dissent in that case he agreed that con you know he explained the eighty eight exemption by looking at title seven is exemption and he goes in detail to explain what congress has concerns were and why extending title seven to elected officials was not appropriate legislation if you look in fremont county and some of that same legislative history is discussed in that case as well to previously exempt state appointees it acted within its authority under the fourteenth amendment and therefore validly abrogated state sovereign immunity and  yes it did your honor and i actually don't understand counsel for alaska to be disputing the clear intent to allow suits against the state the clear statement he seems to be talking about is whether congress valid section two thousand east sixteen b of this fact which is here shall apply with respect to employment of any individual chosen or appointed by a person elected to public office in any state its in title coverage of previous previously exempt state employees in this section of the civil rights act of one thousand nine hundred one this particular section only applies to the local and state employees that's not it's different than in cases where you have a broad statute which  found it's not clear that for example a person is intended to mean state i mean here it is the statute on its face is clearly applies to state employees and allows such state was to incorporate title seven and extend and explicitly extend the provisions of the federal sector title seven to these previously state and local political appointees so it wasn't actually amending title seven as such back then but it was it was extending it was completely incorporating the remedies and protections of title seven and  strongly supports our argument here the free my canon case because they are the tenth circuit found in rejecting a tenth amendment challenge that was enacted under the congress's fourteenth amendment authority and they are what the tenth circuit said was that you need to look at this thing context that this was there was a broadening of title seven and there was a sequence of steps and in one nine hundred seventy two congress first extended title seven protections and actually then amended title seven to apply to most state employees and established a lengthy legislative record there which the supreme court itself up held as a valid  of sovereign immunity so when congress enacted gira it was the last step in the sequence to cover previously exempt state appointees and congress was doing so in the backdrop of this really strong legislative record nine want what's wrong with it i think what the requirement that the supreme court has said is is that in the congress for personality test as you look first at the right that congress you have to identify th right that congress is trying to protect here it is the core fourteenth amendment right to be the equal protection guarantee and to prevent state discrimination on the basis of race or sex and given race and sex discrimination which are subject to heightened scrutiny or strict scrutiny based on the history of race and sex discrimination in the country which has been recognized repeatedly by this court by the supreme court they have more leeway that they use that stronger remedies might you know can be appropriate in that situation in contrast to when congress is actually trying to considering legislation that's based on rational basis scrutiny such as age discrimination and disability womanish so in that context that's all taken into account in the congregants and proportionality test and in doing so if congress as it didn't one hundred seventy two makes specific findings that state and local governments have not protected their employees against discrimination and have in fact they cited one study which showed that discrimination only they're there weren't we have cited some of the nine hundred seventy two legislative history and there were you know they did cite some examples and law enforcement agencies  district attorney's offices so you know there are certainly high level political appointees i did not see anything specifically about that but i don't think that was necessary with all due respect your honor because this that decision is if congress feels that that legislation is necessary when it's combating this kind of history of race and gender discrimination then it's not the eleventh amendment the supreme court's precedent has recognized that when acting under the fourteenth amendment congress can intrude into areas as i understand your argument is based upon the good doesn't need to go into extensive findings about high level employee discrimination because that were already done in seventy two council argues look congress when seventy two went through this and made a valid decision by congress that it wasn't necessary to cover i love all government employees employees and he says you can't do that so it seems to me that the argument that de viju is to whether or not you can do the seventy two findings and use the seventy two findings for good now if that's the case what's wrong with his argument that the legislature looked at the findings of the day they made a decision there were insufficient findings for high level employees and i live a political employees and they made a decision that it's only going to go that far and of congress is going to go any further they've got to show some basis for it won't be your response to that argument my response is that that is not shown in the legislative history of the one nine hundred seventy two act in that congress does not need to address a problem all at once and it makes political decisions and as the supreme court held in garcia which is a tenth amendment case that the political process protects you know these kind record you can just go back to seventy two when they decided not to include him you have to have a new record to show you why you should include him well as i stated your honor if you look at fitzpatrick versus bitzer and the was just an overall pattern of state discrimination on the basis of race and sex and it's just as you know the court said that in his you didn't have to find that every single state had acted discriminatory only with respect to you know leave policies to enact a nationwide remedy here as long as there is this very strong basis the congress has already shown its state discrimination findings are sufficient to include high level political appointees just assume that happen would you be able to amend with a girl without anything further or with the congress have to come back and say well now we've changed our mind and there is a patient and this is why i'm here i think that would be a much harder case and that if they found it in the context of saying there's really no need for this legislation with respect to the rights of right and right but you know but i'm not at all conceding that they would have to i mean i understand it but you understand that's the basis of his argument he's saying he's saying that when they specifically voted with an amendment saying it wouldn't cover high level employees congress  making a decision they don't have enough evidence to go there that's his argument but we don't know what basis congress was making that maybe you know there what they do have is a legislative record strong enough but we're not just relying on the legislative his record if you look at your own courts president in his which you know was affirmed by the supreme court that this court says the fact that when you are legislating to prevent race and sex discrimination discrimination and the court has repeatedly recognized the problems in the country that persist with race discrimination that the burdens are very different with respect to you know what kind of legislative so showing a pattern that congress needs to show i think here given the poor fourteenth amendment purpose of year that the one nine hundred seventy two legislative record in addition to the supreme justice and justice o'connor are gone they've been replaced by two justices who are very likely to have the same outlook on this question as before the s lane or your court overturns its own president in his then you are bound by those decisions and this is the framework of the current supreme court framework under which you're acting and i would add that there have been a series of court of appeals challenges not in this courts but in other courts to other aspects of title seven for example there are things challenges saying well the aggregation of state immunity was fine under title seven and we recognize fitzpatrick first bitter but there's no evidence of retaliation on the parts of state or there's no evidence that states discriminated against men so you know why is that constitutional notwithstanding that fitzpatrick  discrimination and a history of discrimination and then they have this broad leeway and with respect to remedy which i would add here as we stayed in our brief the remedies here are entirely conquered and proportional unlike the family medical leave act there's no substantive benefit extended to these employees it's that the title seven remedies which are the equitable remedies allowed by title seven and compensatory damages but only in  intentional discrimination which itself violates the equal protection clause so it's in and you know the remedies here are are you know entirely congregant proportional to the serious violation identified and that the you know let me by saying that the state doesn't have eleventh amendment immunity before an agency and so therefore but it did but if congress is validly abrogated that eleventh amendment immunity it's it's entirely proper to subject the state to a proceeding before an agency as well as court proceedings and here there are you know several parts of the agency the charges initially get referred to the state agency and the state agency has the first chance if it so chooses to remedy that discrimination before it is back to the e s p second there is  right of judicial review before this court there is a court of appeals review so though it does go before the administrative agency here the administrative agency does not have the last word if the complain does get to this issue that seems lost lighted by the state simply doesn't hold to the proposition that the latches issue would have to be decided first and with regard to ms ward herself h contention is that she really go ons under title seven and she has proclaimed that all along she contends that she did not have the policymaking power and the type of job that would fit are there are part of the excerpts of record three seventeen three twenty nine and three seventy so that her job was not the type of job that you come under here in the first place and  under the eleventh amendment this case should be dismissed for example in fremont county they say they determined that there was no clear statement but that a clear statement wasn't required under the tenth amendment but this is the eleventh i'm in the case and from my county from my county can claim if found that there was no reference to the fourteenth amendment and it referred to the legislative history relating to state employees as scant and those same findings by this court under the eleventh amendment group some portion al