texas attorney general from enforcing a preemption provision that he has no specific duty or demonstrated in to every forcing the district court allowed to claim to proceed on the grounds that general paxson has general as broad in force with powers under the state an appropriate ex parte young case edward young was minnesota's attorney general who like general paxton had brought in foresman powers under state constitutional and statutory law the supreme court looked at those powers as well as the principles behind the  amendment and its own president and concluded that the mere possession of such executive authority could not waive sovereign immunity or there would be no sovereign immunity left instead the court found that there was jurisdiction that case only because there was an ongoing violation of federal law in the form of an actual or threatened enforcement or scenes of the problem here is theirs and from your perspective is not that he doesn't have the power it's that he hasn't didn't demonstrated any intent to use that power is that correct yes you're right and if you were to go and give a press conference topic that equally that said this is wrong and this needs to change and we're going to texas is not going to stand for specific statements in the public expressing an intent to enforce but if i'm going to just understand your response to joe joe ron you're conceding that general paxton has the authority to institute litigation with respect to i guess for lack of a better term the supremacy of state law over the city of austin or you can see that yes your honor and he's done that with respect to other similar controversies in the past  in lawsuits on occasion past not i would not concede that they were similar to this ok all right so you can see that i get i get that the reason you're saying there's no ex parte young you know  of austin cites two cases from supreme court to demonstrate why there was sufficient intent for or threat of lawsuits here to establish not only the connection requirement ex parte young but at least controversy requirement for article bleeding into the rightness part of standing when we start talking about well he hasn't done anything to threaten them it's not immediately impending yes it is is this more of a standing case than an expert to you that there was because there was no actual or threatened in foresman proceeding there was no ex parte young to no action but he clear majority held that there was no standing now so do you so we would have to analyze whether or not they they have actually stated a claim that is viable at this point is it premature i'm not sure i understand your honour's question you do need to analyze whether there is yes ma'am that there is the problem and going back to the cases to which they rely on the on stefano and susan b anthony the supreme court has held in those cases that there are three general requirements that  so we are you in agreement with the scholars i guess professor chimeras among others that says that we used to talk more about this in ex parte young this type of problem but that ad in the in  the th century as the standing doctrine says became more developed we tend to look at these problems through those lenses is that a or you don't you may not want to comment on that i'm not familiar with professor article to which you are referring generally speaking the court has as it dealt with them in two different contexts most ex parte a young concept and cases that are more current tend to be in the context of an administrative scheme in the air event case for example whereas this is a straight preemption case which is not an ex parte young a traditional it's part of a young claim for a number of problems namely being that preemption is not enforced as this case as this court has normally defined the term to mean compulsion or constraint and while austin is undoubtedly constrained in their ability to enforce their preferred housing ordinance it is not constrained by a particular state actor they are constrained by the language of the statute  st to justice kennedy's concurrence in that state in that case which explained that to me deceptively simple in cases that are on life horizon where there was a specific in foresman order that was under review as this court recognized just two years ago well after a horizon air event that in fact the question times on nuances of the complaint including the defendant and the alleged conduct here the defendant is different he is an attorney general with broad enforcement powers the conduct is also different in the fact that there really is no conduct on the part of the journey general so going back to sort of higher levels about what ex parte young injunctions actually require may be the best way to examine the question injunction if you give austin what they ask for doesn't require general paxton to go through and pull out to fifty point seven out of every copy of every code book in the state of texas instead it simply in for ass in and out orders and not to enforce which they interpret to mean bring a preemption claim against the city of austin he is already not doing that so the court's order would be to for him to continue not doing something he's already not doing and that would have no impact the court doesn't have jurisdiction to order those under any normal circumstances and it certainly doesn't have under the standing to draft trends that we discussed earlier and it certainly doesn't have any jurisdiction to do so the case of a claim against a public official it is entitle to sovereign immunity unless he's actively violating federal law so austin needs to stand at the ready in case he decides to do something that your position that austin into what might primary response to that is that preemption is not typically an affirmative claim as the supreme court recognized st and in armstrong against exceptional child care and more recently unearthed murphy against n c double a to either could or could not in his discretion decide to intervene and so this is not a circumstance like the cases that they cite in their brief where they are standing at the risk of some sort of fine or criminal penalty the worst thing that's going to happen is that they're going to litigate at the preemption telling him in a clean that they have chosen to bring is an unfortunate matter and frankly they brought it amongst themselves about bringing this premature claim against aston that reason we suggest this case should have been assistant city attorney here on behalf of the city of austin the attorney general's argument boils down to this in order for us to trigger ex parte young we have to violate state law and see what the attorney general does or we have to do nothing and see what the attorney general does hasn't done anything here and threatening why is this lawsuit right it is right because the city has been injured and we would be a part of our injury would be redressed by a decision of the order he has to understand how your injury may be concrete your law might might or might not be invalidated but how is it impending doesn't pre injury have to be immediately or imminently impending the threat of enforcement when we're talking about it has a standing perspective as well we have a personal how common this is in personal stake in the outcome of the case and this we will additionally i'd point the court to the nd recent nd circuit opinion tweed new haven airport authority where they actually brought a case against their attorney general for a state statue that was limiting how long the airport runway could be and in that case they did not raise its party young but  raise standing as an issue and the court said the fact that that state law is directed at that particular entity is coercive it is that a threat of enforcement without having to wait for the attorney general to take an affirmative step because in that case the attorney general also made the same argument that this attorney general is making a choice as to whether we pursue this under the act party framework or the standing framework no your honor we been dismissed completely so had judge sparks dismissed her case entirely then we would be bringing all of those issues before you your success and i could tomorrow that you don't have standing and then they would have to wait they have already moved that we do not have that in the way that would be the judge sparks could rule on that and everybody would wait yes he has ruled already on standing and agree that the city does house in bring it because they did not bring it as part of their appeal however if the court feels that these items are used in issues are so inextricably intertwined we would ask for an opportunity to fully brief the standing issue as we are focused on exporting young that being in  party why are you not like why don't you lose because of morris morris so the cases cited by the attorney general focus on situations where there is another state agency or private individuals who have being brought under the t c j such as that and that the executive director actually had sponsibility so the district court substituted the governor for the executive director for the governor and said that the governor didn't have any affirmative steps or do anything that would trigger it this would this case would be different if there was a separate state agency responsible for enforcing preemption which there is not there is would also be different if it is abolition of private cause of action just as and below be where there was a private tort action we don't have any of those circumstances here and then those cases th circuit has looked at we already have someone who is responsible and so the attorney general can be brought in just because we are have somebody who's responsible they would have to take an affirmative step the closest you get to that actually would be the summit medical case o the th circuit where the attorney general in that case issued direction to the district attorneys about how to interpret the criminal statute agree that under our circuit precedent and i mean i guess in the supreme court's cases there has to be some connection of the state official you've sued to enforcement of the challenge that you yes we don't agree there has to be some connection or leave aside you know whether a pool of these demonstrated willingness thing is part of our circuit law i soon that you agree with me that there's nothing in the statute itself that points to the attorney general that gives the attorney general enforcement authority right side on the statute is silent about it so so  just try to or to articulate for me your argument on what is the enforcement connection here they attorney general himself has taken the position in multiple litigation multiple cases involving the city of austin that it is his duty to uphold and terminal's case is brought on the basis of preemption on the texas association of businesses which is a case currently going through the courts in the state courts for preemption under the texas minimum wage act where we've adopted paid us and in those cases the attorney general is taking the position that this is his responsibility now i haven't reviewed those but can you tell me what the basis of the attorney general's argument is that he has  included their nd intervention in this case where they say that the texas city attorney general has a duty to uphold and enforce the constitution against the city when it acts in violation of the law doesn't that create it's interesting because i mean i  take it that i mean that's i think that's a good argument but doesn't run into our precedents that say the generalized duty of a state official to enforce laws isn't enough to create that enforcement and it does not run a because the courts in those situations or in those examples there is someone else is either responsible another state official or there's a private cause of action this is a rare case where we have a state law that regulates minister pallies that is silent on who is responsible for enforcing so if you take the attorney general's position there is no one at the state level that can enforce a law that directly regulates my client and i don't think they're saying that attorney general can't enforce they're saying that the attorney general hasn't shown in an indication to enforce they're not saying there's no one who could on i believe they believe the attorney general can very well and force judy jews to do so so that's different you don't automatically get someone to sue so that it doesn't have to be a substitute board or a substitute you don't automatically get that in every expert to young it young follow up bits didn't abrogate bits but said they had already commenced to portsmouth proceedings so this whole idea that you have to be on the edge of doing something you have to shown some inten part of the supreme court's jurisprudence from expert to young all the way through it doesn't say you automatically get someone to sue and if it's not the a g it's the board or the commission respectfully you are the expert to young i actually think supports our position in this case more than it supports the attorney generals in that case the enforcement happened after the district court had already issued an injunction it came before the supreme court on a hate b s petition because he was already found  contempt for violating the court's injunction and the language of ex parte young says that the clear that the attorney general under his powers existing at common law the virtue of the various statues had a general duty imposed upon him which includes the right and the power to enforce the statutes of the state including of course the act in question so minced boersma proceedings that after the injunction had already been issued statute also so the city passed its ordinance and then a week later a bill was filed at the state legislature directly focused on the city's organise and it actually has you may not adopt and you cannot enforce so we blow on the books that we're not allowed to enforce because of the state statute with that we believe violates the fair housing act and the supremacy clause is invalid and so we should be able to enforce our ordinance an injunction be written in this so what would injunctions ace keep doing nothing i realized judge sparks's opinion or order discusses injunction we've actually asked for a declaration at this point with additional relief if needed but at this point maybe asking for a declaration that this particular law is invalid and a declaration is appropriate under ex parte in a pre enforcement challenge you believe we have the authority in this in a lucky to repeal to give you a declaration that judge parks didn't give you were not just ruling on the injunction all we have done at this point is do the motions to dismiss that is all that judge parks has heard the you don't believe that so you don't want that from us you you just want us to say that it doesn't lose because of x party are correct about we back so you can argue to judge sparks about what you really need from him yes sure because what he gave you is not good enough what he gave us was a decision that the attorney general's immunity is waived and therefore we may proceed on our case so we would ask the court to affirm that decision a judge sparks so that we may proceed and have our day in court onus i have a question though about other circuits law i don't see which circuits would support your view and i just want to make sure that you agree that it like you didn't agree on exporting young and that's very helpful but with regard to the  rd circuit the rd circuit in the west coast court case you know the secretary and the a g had a general duty to uphold the laws in that case but no evidence in the record showed that there was a realistic likelihood that they were going to do it been in that particular case and so the court held that you know they did not allow the case to proceed at the end  enforcement responsibility lie with the school district not with the attorney general who actually the court held that the a g did have a general duty to uphold the laws agree and the secretary of education also was not found liable correct because under the statute the secretary of education only had the authority over all school districts but the school district in philadelphia and so the court said you disagree terry of education doesn't have any say in any of th the attorney general will get they actually did have a say the eighty had been advising whether the school district should complied been telling the school district what to do so the a g did have a say in that case the a g advised the secretary of education and this is a g s decisions are binding on the secretary of education not on the individual school districts had been advising the school district through the secretary of education and it was based on my remembering of the case it was about three years before this issue even came up where the school district breached disagreement with its contractor and so in that scenario the court said the responsibility for foresman actually lies with the school district not with the secretary of education and not with the attorney general because the attorney general doesn't if i or remember correctly the attorney general opinions in that state requires state agencies to actually follow the attorney general's opinion ok you brought up some  earlier ok can thumb it the governor or the ag that in the district attorney the defendants in that case admitted an intent to enforce the criminal provisions so that's so in that case the attorney general did issue a letter to the district attorney saying this is what his interpretation of the criminal statute was which the court did look at but what's important about that case is in that keeps the attorney general argu similar to attorney general paxton that they were challenging meaning the plaintiffs are only challenging the responsibility such officers have in their status as state officials and in that the court disagreed and said that really goes to whether or not there's an ongoing and continuous violation of federal law and here because we have a state state law that prevents the city from enforcing its ordinance we have a ongoing and continuous violation that the court in that case did not find that the civil provisions could be and could it was waived with regard to the civil provisions because i agree with you your honor they did not because there was a private cause of action associated with those same life someone else can be just like the the landlords could bring that part of the suit why isn't that analogous to this case i'm trying to find a circuit that would go the other way and see to see if we would create a circuit split if we all listen announced if we even had the power to announce that there's no longer a threat or and it is stated intent that you're going to do something in the future so in that case i suddenly started  there is a threat of a horseman because there's an estate law that prevents us from enforcing our ordinance and it is coercive on the city so the city's options are to violate the law and wait to see what the attorney general does or do nothing and wait to see what the attorney general does  think that's the threat for purposes of ex parte youngers prudence and it actually has to be a press release or a or a lawsuit or you know a demand letter i would argue that the case is when it comes to the threat of enforcement when we're talking about x to x part a young really goes to whether or not the defendant will be impacted by the court's decision so they're very similar the threat of enforcement issue goes between both ex parte and standing under ex parte young it's focused on the defendant and in standing it's focused on the plaintiff and if there is a declaration issued by a judge barks that this law is invalid the city can move forward with enfor and we will move to enforce our ordinance and it will not admittedly not alleviate all of our injury but it will take care of a significant portion so that we can move forward with information but if we were to say there if we believe that you actually needed us pacific threat but then we said well maybe we don't need that anymore this may be a local o b is no longer good law and milla and morris doesn't apply and we could give you your world where you don't need a specific threat of enforcement would we be creating a superstar could split if we were to do that based on our research we have not found a case that is in the posture that this one is in the sense that we have a state connection is not merely the general duty to see that the laws of the state are implemented but the particular duty to enforce the stature in question and he demonstrated willingness to exercise that duty that's language from no your honor ok will i mean look i guess i'm somewhat sympathetic to that view but i just read the language from a panel opinion of our court from two thousand and fourteen ordinarily rebound about right and i see my time is did not follow that and actually in that case the court said to the extent that ex parte young requires a state official to threaten or commence proceedings to enforce their constitutional act the previous of enforcement satisfies the test and so it didn't attach to the threaten or commence language would that have to do with the fact that another case has talked about the problem since that if we have a rule of evacuee i believe that the court recognized it out which is the basis of morris is not controlling on the court if i remember correctly but they that's not an on bond but morris is the case that says the test and even if that isn't the test of the circuit we still went under that the immunity is still way while there where is the demonstrated willingness of the attorney general to enforce it's an issue of the preemption issue that's what it goes to there is not going to be a situation where multiple cities are going to enforce or violate the recession's a force and this particular state law that preamps the city a city from adopting or forcing and without that we would be in a situation where we either violate the law are we stay silent and in any case sorry that because he brought her intervened in for unrelated staff lawsuits that he is going to bring a case here that's in him that just doesn't bear the weight and what she puts it there is only actually one of those claims that was bringing a claim on and so as a result the rest of them just aren't preemption cases and it's really hard to see how you can make the logical leap that because general paxton and in intervened to support a private business association on a question about sickly that he's going to do the same thing in a case involving fair housing regulations they're just too disconnected in fact the record in this case would suggest that he wouldn't she noticed that a way that the state statute  regulation and to fifty seven mooted the appeal because it was up now very very clear that the law was in fact granted but the the only point is there are parks and didn't get involved in that he's there's no reason to think he's going to get involved here and even if he did are guessing right we're gals maybe we'll be able to use theirs and theirs and that's the problem with that the court's not supposed to guess city of austin is supposed to demonstrate that ken paston is going is willing and likely to do to enforce this provision and they haven't done it and because they haven't done it this case this court should reverse judge sparks's ruling and dismiss either on the grounds of standing or on the grounds of sovereign immunity whatever the court