concluded in f m c vs holiday and at the very least they relate to payments with respect to benefits number two if there isn't any ambiguity on this point o p m notice and comment regulation answer the question in favor of preemption and number three although the majority of the to bring quorum is or other otherwise we believe there is no constitutional infirmity in section eighty nine zero two am one under the supremacy clause if i preempted under arrest that is to say that it effectively requires plan administrators to calculate benefit on the basis of different liability conditions that vary from state to state the very importantly it undermined the of uniformity and third that it could encourage plan sponsors in this case the federal government to reduce the scope of coverage in addition to those reasons this statute gives you an additional reason to find that it is preempted and that is that it also pre amps those rules that relate to payments with respect to benefits it is quite clear to us that the subrogation and reimbursement claims that are at issue in these rules wipe plainly refer to and relate to payments with respect to benefits and therefore the supreme court of the zorra was wrong in overlooking that part of the statute and also wrong in focus on the last clause in another state it appears on page two of the blue brief if you focus on the last clause this statute only reaches those state laws that quote relate to health insurance or plans and there are any number of subjects that may not be reached by these laws or by other loss and also subjects that are not related to benefits coverage or payment with respect to benefits congress dealt separately in action in section eighty nine  and the like but that states you know may not tax you know the benefits and the payments until congress has in fact crafted a limited preemption provision that singles out those laws that are most likely to apply to the insurance plans at issue and then only said that the scope of the preemption would be defined by particular terms of the contract and so in our view in some ways the reach of this law is somewhat more limited than the that of the original statute because although the relate language is identical and they should have identical scope with respect to benefits coverage and and payments with respect to benefits it does not reach all laws of the state it targets to begin with only the health insurance those laws that relate to health insurance or plans now if i could get to the second point we recognize that w mean we appeared to find this a difficult question in mcveigh we said there were two plausible readings we said it was a hard statute we didn't want to decide as between the two you know what do you make of that case  actually was going to be the headline on my second point of this case and so thank you you know we recognize that mike they considered the same statute and concluded that the statue did not give rise to a cause of action and federal subject matter and we believe that that question was in the difficult because on like it rissa where congress expressly provided a course of action in section five or two of that statute congress had not done so here and the court was basically being asked to imply a common law course of action out of the terms of what it otherwise appears to be a defensive preemption provision which is relatively rare the background rule in the federal system is that federal preemption is a defense only as we learn because the question then what was the statute it would bear a construction that was expansive indeed with respect to an entirely different subject matter with the with respect to the question of whether the court considered as being susceptible on the merits of the defense to possible alternative constructions i think if you look at the relevant passage what the court said was the different construction from being urged upon the court on the one hand won by the united states and on the other hand i know the one by the cruise plaintiffs out of the seventh circuit the court described both of them generally as possible and wrote to saying that he didn't have to pick either of them we do not believe that that sort of description of the litigants position really rises to the finding that the statute is bigger i said threshold for even a chevron analysis because the court was not considering any kind of construction was not considering context was not considering purpose it was simply describing the position of the litigants in front of this court and concluding that he was unnecessary to pick one or the other option in this case you have an express preemption provision or you have a federal entity that makes the contract so it that may be all you need to say in order to prevail on our book there are there are some limiting principles that we should just be in the back of our mind we think about preemption the case in boyle with i think a close case completely different from this because there was no express preemption so it's not really your obligation to direct to address the parade of horribles that isn't in this case but are there some women general limiting principles that we should keep in mind when determining whether or not preemption existed b is permitted well of course you know you have really three headings of preemption under this court's doctrine you have conflict where you take the text of the statute and decide whether this a rule actually conflict as the as the label says and i think that's the common form that comes in front of the court and i think that's just a question of ordinary statutory interpretation applying all the relevant canons and construing as well the deeper part of congress the harder cases are ones like bills man versus marietta where you're not dealing with actual language of the statute but you're considering whether this day law is an obstacle to what congress one thing wanted to get at and this case does not involve that problem except as an a for sure i type argument as to how this would be out even under that rule but the easiest case seems to me to be what you have here where congress had exercised an appropriate level of federal power under section on the article one section eight and then has gone further by itself declaring what it views as the consequences for the federal state balance and in this context it seems to us that it is especially inappropriate to consider limits would be of a doctrine that arises practically well in every case maybe one doctrine has to do with the delegation issue and suppose congress passed a law that said well any professional responsibility any professional responsibility rule adopted by the a b a will preempt contrary state law is that ok under preemption doctrine well it seems to me likely you just described second to my failure just are you just saying this is beyond congo regulating well profession is beyond congress as described is not self evidently connected to anyone or always assume it is within congress's power to legislate when then there is a question of identifying what it is that congress is trying to do it is in fact true that congress has adopted what otherwise would be state stay  provided enough governmental supervision for the activity so that it is subject to a delegated exercise of power under appropriate standards by and ultimately responsible is it you know in some of those years you're talking about state governments is is it permissible for congress to delegate the authority to decide what laws are preempted to a private entity i think it depends on how we  reluctant to say that considering whatever crisis or problem congress may be considering that there is a particular avenue of dealing with them that is completely foreclosed but to the extent that there are limits to the ability of congress to do such things it seems to be that he precondition for congress ability to do that would be to do something like has happened for example in the securities markets where you have what are called self regulatory organizations where trade groups in effect have rules that apply to parts of the industry but they're strictly supervised and approve of this if you as an exchange commission and there is recourse for their violation going federal court now those rules and some cases are considered a preemptive and so i don't want to foreclose you know the proposition that as a category using an industry group or a private group so long as it is subject to a proper government supervision could not be a possible to the congress but in that event if i could just finish but in that event you would also without appropriate standards as to what it is that they may do or not do but i want to distinguish the hypothetical that you posit from what's at issue in this case well before you could get to that i mean it would seem to me that you could deal with the concerns you have and still address the problem in other words it's not a blank check you know with it any rate between you know ten dollars per mile and thirty dollars per mile but you parties you know we want to give  free enterprise system of little more scope than having the government set it so whatever rate you said between ten dollars and thirty dollars a tonne a room mile will preempt contrary state regulation again it seems to me that this is a question to some extent of conceptualizing i think i am agreeing with the basic premise of your question mr chief justice that there are of course limits to the ability of congress to delegate to private it was a question i think which is perhaps purely speculative is a non delegation question their delegations had run riot but suppose they did use the words unfair competition instead of fair competition and therefore they had satisfied the non delegation dr given satisfaction of the day of the source of power and satisfaction of the delegation dr anon delegation is there in addition requirement does the preemption matter assuming there were parts of that th preempted is there must have been is that a separate doctrine that imposes yet a further restriction or once the first two are satisfied have you automatically satisfied the third i find it hard to say that would ever say that in dealing with a crisis like the great depression for example congress could not turn to the type of remedies that it tried in the schechter case and that those would be completely foreclose to congress you know but the idea in the concern is raised by your friend on the other is yes congress can do that but we're talking about the preemption of state law and the question is whether or not they've authorized someone not subject to the political constraints of the congress is subject to to undertake that pretty significant step of telling state law state legislators that they can't legislate but if i could just pivot to what why the argument doesn't really fit what the problem is that we have in this case even though it is withstanding the contrary it's better etc and that although i understand that the whole the delegation going down you know the the the road of delegation is very interesting i will point out that is had it has displaced state law to create a room for the operation unimpeded of certain contract terms they believe should be encouraged for the public interest if they'd all be creator an act is one example of that even though it is a purely private tripp mr chief justice of may please the court o p m as regulations answer the question presented here and i'd like to just make three points about how they work why they're important think do you think this is differences i guess or basic take is that the answer that doesn't really matter because we've picked one of the two interpretations and it's really up to respondent to show that our interpretation is not even reasonable and we think that there's no way that they can do how these regulations work and i so i think that the key point that i want to emphasize here is that in the preemption provision the crucial language is what is the nature and extent of the benefits and benefit payments available under one of the plans and that is tied to something p m is already administering under a different provision of the statute eighty nine o two d says that each contract shall include such benefits and limitations and other definitions of benefits as it considers necessary or desirable so those two things go hand in hand in the regulations they work the same way in section b one of the regulations it says that subrogation imposes a condition of and a limitation on benefits and benefit payments and that makes good sense it's  you've just slid into the chevron question right i understood just the sort of you were to want to know if you were at least as i would want to know do you need chevron to get around the ambiguity because once you say that it's you get into somewhat serious questions about  whether chevron applies basically to the decisions of private entities to you i think the concern is it's bad enough that they're preempting state law but now they get deference they can preempt state law so long as their terms are plausible  so i think we would win this case even without chevron deference without the regulations i think we just have the better of the two readings of the statute the application of the presumption against preemption here i think is really just fundamentally misguided not only do we have an express preemption provision we're talking about federal benefits for federal employees under federal contracts entered into under a federal statute and the way this would work on the ground is if missouri can bridge it subrogation then what happens is that federal workers in illinois who are enrolled in the same plan and paying the same premiums are footing the bill for benefit payments they can't even keep and it's not part of the state's traditional authority to impose those kinds of extra anality on out of state federal workers i think so what i was getting at in the answer to justice sotomayor is question is that we would clearly get deference here on on eighty nine zero two d in determining what are what are the definitions and other limitations on benefits available under a plan and i think under chevron it doesn't make much sense for us to get less deference in determining what is the nature and extent of benefits and benefit payments because it's really just another way of saying the same thing so on why it's important i think i covered this a little before but to be very concrete about this in the d c metro region virginia prohibits subrogation but maryland and the district of columbia do not under respondents position similarly situated federal workers working for the same agency and rolled in the same plan and paying the same premiums would have different benefits and  different extent of benefit payments depend on whether they live and bethesda or mclean i think that's just clearly wrong and then in finance you understand the problem and i understand the argument that it's a man to but sometimes semantics like to illustrate why i think it really proves no constitutional problem at all it's on page two of the blue brief or page three of the grave or if it says that the terms of these federal contracts shall supersede and preempt state or local laws relating to health insurance or plans without clearly means is that the terms of the contract shall apply notwithstanding the state or local law its anonymous dante provision like the supremacy clause itself and i think when you read it that way it makes it crystal clear that the suit that the statute is doing all the preempt in read in a shell superseding preempt to interpret that to mean shall apply notwithstanding because the supremacy clause itself has some one language about notwithstanding we think that's obviously what congress was getting at here every other federal benefits general general federal benefits statute has the same language so it's health insurance life dental vision long term care we don't think that there's any problem and in pick in this particular language are no further questions thank you counsel words purposely limited and not designed to disturb the important role that states play in regulating those private insurers who participate in the program indeed that is why when congress first enacted the provision it's but typically warn that the clause would not preempt insurers from traditional state laws governing insurance reading fee was expressed preemption clause now really here so that subrogation clock contract terms do not preempt otherwise the political state law honors congress intent and a respect for the states as independent sovereigns and their historic role in governing matters of insurance and preempt anything well we think that the statute is unconstitutional under the supremacy clause and so as written it has it should have no effect i think if you carve that out for one second i think wh your honor is asking is are there a subset of laws that congress was attempting to displace by virtue of these contract terms and i think the answer to that is yes and you can get that from the legislative history there were some when i think just to back up for a second when congress first passed the bar nine hundred fifty nine it did not attempt to enact a uniform area of federal law and you you know this because what congress said when it first passed a law was there is a problem with federal workers they don't have the same competitive federal benefits packages that those in the private sector do and we want to create a competitive way to allow that to entice them to work for the government but they also had a problem because the government wasn't administering any sort of serious health program and so what they chose to do was to tap into the private market they explicitly said we don't have the expertise to administer this program we'd like to act as a market participant and buy these plans from private insurers who are doing business in the states and so from its inception the feeble program was a dual regulatory scheme congress intended states and their insurance laws to govern those participate those private insurers who are participating in the program now in the seventy's what happened was that a number of the carriers and the agency administering the program which was then at the time called c found that there were a number of states that had begun to pass benefit laws state laws that required for instance a carrier to cover acupuncture services or chiropractor services and the carriers went to congress and they said these laws pose a problem we need you to address this in some fashion and that's what congress did with eighty nine zero two and one but it was very clear in the legislative history at the time it passed the statute in one thousand nine hundred eighty eight that it was purposefully limited and not intended displays the state background insurance laws that would apply to all of the carriers participating in this before we get to the legislative history could you say something about the terms of this provision would you argue that the terms of the start of a subrogation a contract that has a subrogation provision do not relate to coverage that you do not relate to benefits that they do not relate to payment of benefits could you explain how you would reach that conclusion that's right your honor that we think is the best reading for three reasons first the it makes sense to distinguish subrogation from benefits because subrogation claims involve the proceeds of a distinct and separate tort cause of action that happens distinct in time it is highly contingent it doesn't involve any it doesn't affect at all any payment for a benefit or a coverage that a federal worker might receive it doesn't it doesn't affect the benefits that the participant receives that's a right if it if there's no subrogation claim the benefit receives a certain amount if there is a potential if there's requirement of subrogation the participant receives that amount minus x i don't think that's quite regular honor they get the m r i federal worker let's say who needs that coverage for an m r i get to get that m r i covered and get the coverage for isn't the money that is getting paid for for the m r i coverage it's money that comes out of a separate the proceeds of a separate tort claim from a personal injury attorney is money i mean you know one dollar is as good as the next and and the other way you get those costs minus any recovery in a tort it so maybe a recovery won't happen and torts it but a recovery might happen in a torts it and then you get considerably less well i think i think that that is certainly possible although i do think the money matters these are historically equitable claims and the pots of money and the difference is about where those monies come matters in the way you conceive at the outset of what a benefit is and whether that benefit will be covered but i also think that part of understanding how to interpret the text of the statute requires understanding what congress intended when it passed in the first place and i think the purpose here is that congress was distinctly concerned with these kind of front end benefit laws that made it difficult for carriers to know and provide for the coverage that they wanted and not to be required to cover for arizona's acupuncture doctors benefits and services that were offered under for instance a blue cross blue shield plan or it is your point we're talking about here subrogation has nothing to do with coverage it has nothing to do with benefits you're covered you get the money you get the cat scan you're the proceeds of that tort suit are not coverage the proceeds of the tour to are some money that our state and a judge decided should be paid to a victim of an accident is that the point that's correct your honor that's the point then what about payments with respect to benefits the those payments are not even with respect to benefits again i don't think that's the best reading of the statute for largely the reasons that justice breyer gave the benefits and the payment of those benefits contemplates a front end question about whether you are getting your m r i covered by the plan not whether many years down the road there is some additional extra pot of money that is then available to be shared among a number of different entities the question isn't whether it's benefits it's whether it relates to benefits and not even whether relates to benefits whether it relates to payments with respect to benefits i think yes i think that's that's certainly right but i think relates to again it's context dependent in this and this for this statute as it is for every other statute and congress had a laser focus when it passed this statute it in one thousand nine hundred eighty eight it did not want to disturb otherwise a political state insurance laws and the reason it didn't want to disturb those laws is because it understood that the private carriers that were participating in this program should be governed by the same laws that would govern anybody in the private sector when it comes to insurance and that's why this distinction i think is a false one between a ploy or an employee and in missouri in an employee in kansas getting different rights because that their state laws are different that is precisely the kind of differences that that congress wanted to ensure controlled in the f e h b program i think also you know alito is that there is i think this textual ambiguity that certainly can be read a based on a just an a pure matter of snow in beauty the answer to the point if i got the point right as you say you know it's sort of like a lot something there's some money floating out there and what the contract says different from what the state law says is that money that's floating out there maybe you won it in a lottery or it came from mars as far as the receiving benefits is concerned by the patient but this contract says you take that money that came from mars or wherever and you pay it to the insurance company why'd you pay it to the insurance company well i think i mean i think because what is it that the insurance company did that in titles them to receive that money from mars what is it that they did well they they included in their contract this requirement i mean just very simply in three words what did they do that entitle them to money from mars short they paid the benefit exactly so there we are now it relates to benefits because they get the money from this separate thing that happened because they pay benefits so now how do you say that this contract does not relate to benefits well your honor i think again the question is largely what did congress intent when it passed the statute the question relates to could be read uncritically broadly or could be read now really and and the the proper approach i think as this court has explained in multiple different contexts is to ask what did congress in can when it passed this particular expressed preemption clause and here we know that their goal was not to create an expansive form of preemption that could extend to cover laws that would fall within traditional areas of state insurance regulation how do we know that that they said in the legislative history it  honor but again i think in mcveigh one of the lessons in the day is that there is this textual ambiguity that arises from precisely this colloquy that we've had and the question then becomes what does what does the court do in the face of th we don't quite know what congress may have intended exactly and in the area of traditional state regulation as we are in when it comes to insurance there's a when when we're talking about state laws and whether congress intended to implied form of preemption the court had the life insurance statute at issue there included an express preemption clause but the court didn't didn't address the effect or meaning of that clause at all and instead looked to the to the statutory language and the that contractual term i'm sure so one thing to say first i'll answer your question your honor but this is not an implied preemption case neither the petitioners in the government have argued that there is a conflict that has that has been created that gives rise to an a form of implied preemption their argument is focused solely on the meaning and scope of this expressed preemption clause now there could be down the road if the government were in fact enact a substantive regulation some form of implied conflict that could give rise to the displacement of state law but we're not in that world in this case today and i think that's actually a crucial point that where we have here is the challengers are asking for what is in essence an unprecedented expansion of chevron at the same time while trying to end smuggle in insurance laws through an express preemption clause when they have available to them the possibility of arguing as in hellman an implied form or preemption that would still allow the court to do that to to make the decision about whether there is indeed an irreconcilable conflict between so i do it with that i did meet with whiplash or all of a sudden you have implied preemption and that's the the preferred argument to express preemption should be just the other way or well i think your honor that is what happened in helmand in the verandah and the act there was an express preemption clause like there was here but the court you know instead of considering whether that express to cause displaced virginia law adopted a form of implied preemption to decide whether there was a conflict but we don't have here a substantive regulation but it just seems to me orderly proceeding for us to ask the first that i wouldn't i don't think there's necessarily a priority but i don't think the express pre nuptial cause in this case can bear the weight of the interpretation that the challenge will that is crowded with lace on it but for example just a couple of years ago we said with respect to an expressed preemption clause we said that the presumption against preemption just didn't apply in a case like this and like that it that it was only a clickable in a case of implied preemption while i don't think this court has overruled the seventy years of  the presumption against preemption applies to express preemption causes i think that was just a careless statement no i think that i think in that case that what the point the court was making was that where the language of an express preemption clause is clear where we know that congress intended to displa a particular state law the presumption does not need to apply and i think that's perfectly consistent with an interpretation here that where the text is ambiguous where we do not have a clear statement from congress that it intended to display some particular area of state law that we would we would exercise caution and not cavalierly displace that state law unless and until congress makes that intent clear i'd like if i can to just turn to justice roberts chief justice roberts question that he posed to the challengers about the very odd nature of this express preemption clause because i do think it raises some very serious constitutional problems that with that if if if if if if this court were to adopt the challenge interpretation would would allow these contract terms to really do the displacing of state law and i do think that there is and it would be unprecedented congress has never and acted in another state form of this type of preemption that would actually authorize the terms of privately negotiated contracts to step in and and displays otherwise of clickable sovereign decisions of states and there really is no way around this problem in the case other than to adopt a narrow interpretation of what  relates to benefits means because congress when it wrote this statute in one nine hundred seventy eight in unambiguous lee intended to delegate the power to preempt to these terms of contract and these contracts are not clause does or does your argument depends on the wording of this provision doesn't depend on the fact that it says the terms of a contract shall supersede state or local law would would would you have a would you make the same argument if  this statute hereby supersedes and preamps and the state were local law that conflicts with the terms of the contract i think that is i think that is a far better approach that would would likely not raise these to the terms of these contracts are determining the scope of preemption and the terms themselves are not known by congress at the time it passes the law while your honor suggested looks a lot more like what arista looks like where congress said the subchapters of a determine preemption that congress doesn't know the term doesn't know what's in all these plans they didn't know what would be in all these plans when they enacted it no it depends on the on the formulation if you say the contract pre amps anything that conflicts with state law that's that's a problem but if this says this is you're by pre amps anything that conflicts with a contract that's that's not a problem well it depends on what the statute substantive provisions give force to the preemption of state law here there isn't any of that all congress has said is where we are authorizing these contract terms sight unseen that are entered into by the government not acting as regulator but acting as as market participants and the terms of those contracts are able to other to displace otherwise apply the sovereign state law and it and there truly is no limiting principle if in fact that i authorized under the supremacy clause because of the chief suggested there would be nothing to stop congress from doing the same thing for completely private contracts or the rules of some informal body when when the supremacy clause speaks of a law this being capable of of states it requires that there be some accountability checkpoints some procedural protections that safeguard states from the kind of arbitrary decision making that could occur and through an informal process where there is no public participation and no judicial oversight i think i don't quite understand you're answer to justice alito first question i think he gave you a statute something along the lines of this federal law preemption supersedes any state law that conflicts with these kinds of contracts and you said that would not be subject to your constitutional concerns is that right i may have misheard i may have misheard justice alito because those contracts  as indefinite as the as the contracts in this that's right and here that's right and the key point the one that i think might in fact constitute would it would in in fact that that hypothetical is that where the contract terms themselves are determining the scope of preemption where they the terms are actually requiring state law to yield that is where i think they're the supremacy clause comes into play because those contract terms themselves are not laws they have not been enacted by congress they come with no safeguards presumably that again is true of a wrestler to a wrestler as a statute that says this federal law displaces the state laws because they conflict with a bunch of contract terms well i think the difference is that when this court does preempt when the supersede state laws and true that's true but what happens then is you have federal common law that comes in to fill the gap what we know from mcveigh here is that we are not in a federal common law context these contract terms the ones involving reimbursement are not governed by federal common law they are distinctly state law controlled they arise after a personal injury happens in a state and through a tort action in state court they're governed by these distinct state law rules not any federal common law and so the difference here is that you have what is otherwise a state focused area of law in which these terms in federal contracts that go through no oversight no public participation are being used to deflect those state laws in a way in which congress itself does not have any control over and i think the court ought be very careful before wading in to whether in fact that is something preemptive now is there a problem with that i think that i think if you are in a world where there is fuel preemption where congress has displaced everything you might not run into this problem but i don't think that's what we're talking about you might run into problems you might run into the problem i think again it depends specifically on what the federal law says and how it's operating but the closest to example that the challenges have come to floor for an analog to what congress has done here is a risk which refers specifically to the subchapters of the law as doing the preempting and the federal arbitration act which itself only establishes a federal rule of nondiscrimination it is to put arbitration agreements on the same plane as other contracts and have state laws appl equally to both what's going on here is a rule of a sensually priority and which which congress has delegated to these contract terms the power to override state law and exist above what would otherwise apply to in the private sector and i think that actually cuts strongly against what congress intended when it first passed the bow which was that this this statute and the and the and the insurance policies that are offered to federal workers who are also state citizens should be subject to the state insurance regimes that have controlled these carriers from day one in the private sector and when congress has been asked to address specific problems in this area it has reacted in responded repeatedly the one thing that is agency here o p m has not done as much as its tried to argue for chevron deference over and expressed its interpretation of an express preemption cause it has never in fact asked congress to amend this law to address what it perceives as a problem and i would point the court in this ro this respect to the way preemption works under the diff the department of defense insurance regime because for all all of the again the challengers pointing to several copycat versions of this statute and several of their other insurance regimes the department of defense insurance regime looks very different what congress did there is that it person acted and expressed preemption clause that looked nearly identical to what the court has in front of it here and then five years later it amended that law and it delegated the power to preempt not to terms of a contract but to regulations promulgated by a federal agency there the secretary of defense and i think if we're thinking about the democratically accountable ways that preemption should work and the protections that states must have for their own law allowing either congress to do the preempting or delegating that power specifically and expressly to an agency are the only two ways that we can that it that are constitutionally permissible and here we have neither congress itself does not control the terms of these contracts and it has not expressly delegated any authority to the agency to pronounce on preemption and so the agency  over what is explicitly a conclusion on the scope of an express preemption cause just doesn't work congress well knows how when it wants to to delegate that power to the agency and it has not done so here there are no further  questions the rest of my time thank you counsel three minutes mr estrada thank you mr chief justice i'd like to start with the last point counsel made about how congress did not expressly delegate the power to preempt i'll point out this highlights one of the many audit of the case on the other side under this court's ruling in the cuesta which held up you know this court held that an agency may use general rule making authority to preempt state laws and in those circumstances of course there are regulatory power under eighty nine thirteen and yet congress cannot do so by expressly provided that this is the conclusion it wants the second point i would like to make is that one that addresses just as briers point which is keep in mind that this is not a fight as to who gets complaint is we took his benefits back the case cannot be related to benefits the relevant parts of the complaint are doing the pending sixty two and sixty three a the third point has to do with democratic accountability and whether you would leave this to agencies all bureaucrats as opposed to congress but as you recognize in city of arlington the choice that is being proposed is not between congress or the agency but between the federal courts which are certainly unelected and generally unaccountable in the democratic process and people that at least in theory are ultimately accountable to the electorate present that if that is to say an agency and finally to the extent that you believe that this statute has  doubt in the terms in which it was drafted i can well believe that you have seen many cases in which you feel that you are the body shop for the roller derby across the street this is no one of them this requires no significant surgery it congress in dealing with these matters at the federal level and not on a chalkboard basis state by state for all these reasons we ask that the judgment of the supreme court of his aura be reversed thank you very much thank you counsel the case was submitted