proceed please the court jason is there on behalf of the pellets this suit calls for nothing more than a straightforward application of settled legal principles ex parte authorizes prospective relief against state officials to remedy ongoing violations of federal law that is exactly what this suit seeks it is a suit to enforce the federal readmission act in which congress set up for a federal floor for education in mississippi congress chose as the content of that floor a previously existing and democratically adopted state law and you say it's just a straightforward case there's always room for st but there's never been a real mission act litigation that's been successful ever correct originated this case law is butler that's the nineteen thousand five hundred and thirteen district court panel decision from virginia and that was the case under virginia as you want to consume your time with that case you don't have to defend what other courts have done but but  their argument hovers around several things one is that the text of the readmission act is specific to amendments that occurred in this case fifty plus years ago the one that lead to the uniformity and then they say also the structure of the readmission act is this is about the text and the admission at one point in butler is butler does illustrate that this case is not going to open the floodgates for example the federal court litigation because the right side issue in most of the readmission acts are already bolstered by federal law but there was a case like this would be constitutional izing of federal education right in virginia texas louisiana your us in the federal constitution not be kinder to be a statutory right federally to uniform education across those three education it's very important i agree and this is something that congress chose that's not constitutional izing anything it's in forcing a statute that congress wrote with respect to the text of the readmission act and particularly i am unaware of any case other than the seminole tribe which is a different issue in which the text of a federal guarantee somehow takes the case outside the ambit of ex parte and i think this court's in a slower story i'm sorry that again i'm unaware of any case in which the text of the federal guarantee takes the case and no one suggested that it wasn't enforceable under its parts simply because the law was passed in one thousand nine hundred but rather what mattered to discordant is that there was state action pursuant to an invalid state law and you can see that really across the little to assess with but the more difficult spring court cases pen her right so and in that regard why are we saying ok district judge you've got jurisdiction to assess whether a violates federal law but you can't say  like uniformity or federal law those aren't anywhere in the readmission right so i think you can think of the readmission act it sets a federal floor for education this is the you can think of it like a specific reference statute and you see those across the federal statutes congress all the time chooses to incorporate some other body of federal law as they were that it's all or if you're using but they don't incorporate things like uniformity or number of days per year right that's where they say this is more like has and what's the other case has and brag and i'd be happy to address as what congress chose to protect here is the school rights and privileges in the mississippi constitution one of those school rights and privileges was the uniform guarantee coming back to penn hearst however and we know that the readmission ac that constitution shall not be amended shall never be amended or changed to deprive any citizen or class of citizens of the school rights and privileges secured by the constitution of said state there are men who are arguing that mississippi couldn't improve on that cost absolutely if it is a floor congress chose the school rights and privileges then existing then democratically adopted by the state of mississippi as the floor of course mississippi could exceed the floor could provide substantively better education this is just a floor and congress happen to choose the content of a previously existing state law with respect to penn hearst it's important i think to consider the facts of pan hearst penner's it was a state law a claim against state officials alleging that the state  officers failed to comply with the state statute there was no federal law in the picture whatsoever and in fact the case was under the court's pending jurisdiction so what you have there is a case claim that could just as easily have been brought in state court and an allegation state officials were acting alter virus state authority again take the federal law out of the picture the claim is exactly the same that's not this case you have a person critics explain it in the cases that i mentioned that's in brag and i'd be happy to address them because those are the ones you have is a federal statute setting the floor at minimum federal standards then you have a state statute adopted to comply with the federal standards and to get federal money spent in class legislation of course so that makes it distinguishable to begin with but then you have state action that fails to comply with the state law right so you're on the state state level there's no federal law sort of out of the picture in that case but the federal law if it ever heard you want to use incorporated federalized state law to the point it becomes federal law that's your argument as to what's here to no no that's not our argument in has and in bragg the state law everyone agreed that the state law was fine there was no problem the state law didn't conflict with federal law it was just state officials weren't enforcing the state law and i think you can actually see it very clearly in the hess case where the state of pencil then you adopted a bonding requirement that the state officials were alleged not to have complied with that went well beyond anything in the federal statute what you see in cox by contrast is a federal standard then you have a state plan adopted pursuant to the federal standard and the allegation was not that the state officials work failing to comply with the state plan but that the state plan itself failed to comply with federal law and that's analogous to what we have here we have a state law that doesn't comply with federal law rather than state officials failing to comply with state law and so if you put cox and you put lipscomb together they answer completely the two arguments that appellant's have advanced on sovereign immunity turning back to the text of the readmission act there are many other federal guarantees with similar language that i suppose purport to operate directly on sta can't be brought into court by virtue of sovereign immunity since simply because it's old the st amendment even though it's phrased like that you can bring a case in federal court because what matters for sovereign sovereign immunity is state action pursuant to an case it's similar to any other case in which congress sets a federal floor and the state doesn't comply with the federal floor the only wrinkle in this case is that congress chose as the content of that federal floor a previously existing state law there is no case at all suggesting that's problematic for sovereign immunity purposes and i would submit the reason is is because it's more respect to the state sovereignty congress chose what mississippi itself had democratically adopted rather than impos judge barbour who had the case before may have retired and has stopped taking cases i'm not entirely sure about will be procedure but it would go back to the southern district wouldn't that george then be obligated to give content to the word uniformity that's a you can think about the takings clause of the due process clause any federal guarantee that talks about property what's the property at issue it's a state law property right you have to look at state law to say he could you you district judge but can you have a nd declaration your request but actually bind officials to that right absolutely and that is what the readmission act requires i see the two declarations as flip sides of the same coin if section two  one is unenforceable to the extent it concerns all turns on your use of the word in your brief one is the converse of the other but you also emphatically say the guarantee uniformity guarantee is not state law and that's still difficult for me to go whether or not it's stay at last a it's not state law in the brief for act whether or not it's state law there's no pandora's problem i think the way to read the statutes is what matters is what congress understood the school rights and privileges in the mississippi constitution to be in eight hundred and seventy when it passed readmission act and that's just a ordinary specific reference can in case the supreme court decided one just last term in jam but you were st in school rights and privileges and the only question is what did congress understand the school rights and privileges to be how do you sued in one thousand nine hundred and sixty your argument would be they're trying to create a segregated school system in response to brown right and that would be a very timely suggestion whatsoever in the text of the readmission act and the text is what matter is that object man from congress in is the remedy that there is no tax whatsoever that says if mississippi violates the readmission act then it's ejected so congress way back in it's not the supreme court in jet said section one thousand nine hundred and three was passed in order to make previously existing federal guarantees federally enforceable in federal court and that's exactly what we're doing returning however to the nine jurisdictional unlike the other arguments but if you look at the plain text of the statute and again the text is what matters it talks about school rights and privileges so it matters is what congress understood the school rights and privileges to be a pelleas of advance the argument that it would be difficult to determine what uniformity means but i think this court would just apply the ordinary tools of statutory construction in dictionaries contemporaneous cases house debates to floor debates to the extent relevant review articles any decisions relevant that congress may have considered at the time being in private right of action would be secondary but political question would be just as presently available to resolve this and your brief invitation is if we were even thinking about that you'd like an opportunity to brief absolutely if the court has questions i mean of course i would be happy to answer them today i'm ready to answer them we would appreciate the opportunity to brief it more if the court is concerned i think all of those are hard issues but in this case the answers are easy i mean straightforward outlook ation of settled doctrine resolves the political question doctrine in our favor in this case the st case obviously would be severe tosti i think there's no such thing as a political question states actually was a statute and actually their best cased al sharif the majority opinion actually rejected that what they cite is a concurrence and actually in texas vs united states this court actually rejected a guaranteed clause claim that was brought not only under the guarantee clause but also under texas articles of an execution and i actually just if i can just go to that point it actually really doesn't make sense didn't say that but political question is your honor mentioned is actually article three jurisdiction and i think it's a pretty common principle that statutes can expand article three jurisdiction which is what the majority in l she's actually said but you can see that across the board for example in footnote three of brains versus byrd so i think that's actually wrong i think nixon having nixon put it is right and that's that court's quote determined the extent to whether in the extent of the issue whether or not that committed to it to a coordinate political branch and nixon actually talked about the nd feature factor of baker as well and that's lack of judicially discoverable unmanageable standards i would have thought this would be correct let me just say this about the district court opinion in light of that question i think it started right and it ended right and with respect to the district court i would have done the details a little bit differently with the declaration part the district court did not exactly say this but the way i read it the district court opinion mostly but it's it's overlooking quite a bit of their complaint allegations that we have a present ongoing severe problem in mississippi's public education system caused by the fact that uniformity was taken out in  problems here at home and yes which i think your honor said you got by that's retrospective relief that's that's part then you get to paint her as such i'm going to go directly to but i do think that there is the rd problem that justice rehnquist talked about in green versus means or and i agree the district court did not put it in those terms but that is the net effect of what the district court was saying about the declaratory relief and so if i can just go straight to pen her story even start back to say plaintiffs say that this is just the usual thing that the federal courts do all the time this is quite literally something the federal courts have never done in one hundred and fifty years and that's what we're starting from and so i also want to start with what the actual standard is for just they'd say no until nine hundred and sixty dollars mississippi knowledged it obligations but in one thousand nine hundred and sixty when the legislature decided to take out an obligation to school children the education will be uniform to all that that's when the harm was inflicted mississippi says you know we'd like to have unbridled discretion as to school proceedings that are i would think books why didn't consistent with the floor that a century and a half ago mississippi was obligated to guarantee to get back the union so that that has its own difficulty but fifty plus years ago mississippi specifically in the wake of brown didn't like uniformity so they knock that out and then they get more in whatever it is eighty dollars they want unbridled discretion so it seems to me they've come to federal court and said you know what put two hundred and one up against the readmission act which guarantees protection to school rights and privileges and they've deleted the critical privilege we needed and they've added discretion to get rid of anything that's the argument actually it's put to a what to a wind up against the eight hundred and sixty eight constitution both of which are state law i agree in one thousand nine hundred and sixty that the constitution was changed but then it was changed again so that would have to be viewed as a past as a past retrospective relief type of a claim but there is a nd equal protection claim in pakistan that says if the pincian harm is today you can still consider no problem with with yes and now we're independent host and our independence now and now we are and i want to say it's problematic the congress put eight hundred and sixty eight in the federal law i actually the text of that the text of the readmission act is important and i want to make sure i right click created by your law so in eight hundred and sixty we commanded right you had to have a convention and as i read it i mean this is really simple history i may be wrong but we have slaves that are now free citizens and they need three things they need to be able to be elected themselves they need to be able to vote and they need to be able to be educated in order to do the st two political rights and then federal law steps in and no one disputes it and federalize as the commander states about office holding and voting but we didn't get congress to bring about education and that's this litigation mississippi according to the claimants has depleted below even a document that existed one hundred and fifty years ago the rights to that uniform education and that undercuts the political rights that's the argument and as your honor put it did uniformity clause isn't on them federal law what started the law puts you back to is state law and i want to be very clear i'm not saying that this is a federal law that doesn't have a federal remedy it does it is a federal law and it is such a unique and extraordinary federal law that that federal remedy is for congress and when congress invokes that federal limiting it does not ors and the remedy was not court the remedy was that congress again barred georgia's representatives from holding seats that is a remedy that will never violate the th amendment because that is a remedy that doesn't implicate the  but that does not mean that private plaintiffs can come to federal court and enforce what is state law school rights and privileges and i want to make this one point about ten host because plaintiffs keep saying it's been jurisdiction the issue is and jurisdiction but if you look circuit ever decision those begin to move towards if the congress incorporates state law then it becomes federal law and there's no printers problem here that maybe your obama tell me if that's wrong but what do you think about those three cases in instances you have a federal law with federal requirements and they actually by nature have to be specific otherwise you're going to violate ten host one and the your statement will so this is our federal law you have to have a state law in exchange for federal money but when you come to federal court what you enforcing it's this very specific federal criteria here we have a state constitution and yes we have congressional representative represent a district judge then just have to interpret the phrase school rights and privileges because mississippi could still violate that express federal language the school rights and privileges in eight hundred and sixty eight dollars were state law school rights and privileges so here's the difference between a bara is that u s federal criteria specific federal criteria and spending clause legislation that's what that looks like here we have the eight hundred and ninety dollars mississippi constitution the only thing that plaintiffs had put right but in spinning cause legislation you have specific federal criteria you have federal law saying this is your right not mississippi don't change your state law in a way that violates your state law in eight hundred and sixty eight they were school rights and privileges and today their school rights and privileges and when you put in a declaration state you have to comply with the eight hundred and sixty eight state constitution that is a very serious problem and in fact if that's not barred  that and it says that courts are required to quote look to quote that of their release the reason read mission act litigation but why isn't this almost the same as spending out legislation congresses you're going to get a lot of federal money if you do the following but you get to describe what the following is but you violate that you're in federal court here congress said it's not money but you get representatives in congress if you do the following what you would be saying is that by readmitting ten dollars states to representation in congress congress federalized the portions of ten states constitutions so much so that plaintiffs can come to federal court and ask the federal court to tell the state how its state constitution must read in perpetuit any and state officials must conform their conduct to it well i think you know i mean that's well put but it doesn't that doesn't sound so appealing to me that's maybe because i'm a federal judge in other words if congress says states here are three specific rights no one's disputing right office all the ones disputing the right to vote there's this rd it's been neglected and it is a state law right and that is pin hearst and again congress can enforce that all they want and it was only abrogated in part which is why you see the the merit corps in arkansas reciting citing it later and there are three other grounds and just because he rested a huge amount of weight on cox tell me again to specific to cox because it sounds like you are you're is the same when you've got a federal law and you've got a state law and a near were each other and so when you come to federal court you're looking at that federal law here you're never going to be looking at federal laws think about what the that would be would be four steps you got to st determine what state law school rights and privileges were determined in or just provided nine hundred and sixty eight then you've got to determine what state law school rights and privileges are just today then you've got to mix the two together in determine which back to federal criteria in spending cause and due process and record you always are in the way spinning calls gets around some of these printers problems is by waivers like you have an idea and you do not have that here and there are three other grounds for a firm say it in three sentences plaintiff's claim that they have a private right to a uniformity clause in a state constitutions education proviso two problems problem one nowhere in any federal statute let alone the read mission act is there mention of a uniformity clause so there is no way this court could say that that statute manifests an unambiguous congressional intent to create such a bright problem to even if you survey the federal court eight hundred and sixty eight state law school rights and privileges from one hundred and fifty years ago how is the federal court supposed to pick and choose from state law what school rights and privileges congressmen and yet never actually said are to be privately in force of what do you write and the uniformity guaranteed to have me i do not know because it's for the mississippi supreme court i know i know but i'm asking you when it you have an opinion state law one hundred and fifty years ago you're doubly problematic under can stock up but expression when you look at the height law in one thousand nine hundred and sixty did there was is there any history that's relevant as to why they thought they needed to remove the requirement of uniformity in their constitution i think that was  twenty five you have to guarantee this is under the uniform and because you want to guarantee only a full month of schooling that's it for months and then back in the schools were quite tragically segregated schools that's what we're going back to if we go back to  they say it's a floor but good for mississippi every time they improve but you can't go backwards well that's a that's a pretty bad floor to start with but nd of all how do you pick school rights and privileges as federal rights that congress two rights in the readmission act are already enforceable people get into court for their political rights right to vote this is just a rd right that's in a federal statute and then doesn't that read into her argument that congress could better step up to the plate and do it with education as well now on the contrary and the reason is because there is no text in the statute that suggests that the remedy is congressional in force mean if you look at seminole tribe in that the private that's the sovereign immunity analysis you need an express train aggression wasn't congress enforcing the original ga readmission act so you can't infer therefore that i'm missing if you were just said no blacks can hold office that wasn't violate what i'd do not believe that you can go back and look i've looked at the georgia but i think you can see that it doesn't align with the modern political question doctoring jurisprudence because it undertakes no textual analysis whatsoever it just assumes that the remedy is congressional committee in the spending clause that is legislation that it's got a mirror one of the other congresses got to do it which is reference another body of law congress is allowed to do that the g m case in the supremes court last term says you can have a specific reference and incorporate another provision of law including state law which is incorporated by congress all of the time all the time congress says we're going to choose a state standard and we're going to apply that as a federal floor with respect to the spending clause i don't think it makes particularly much of a difference whether it's spending clause legislation legislation under the th amendment what matters for plies only when you have an allegation of state officials acting virus state authority that's not what we have in this case a police are saying that mississippi is not bound by a federal statute at all that is a conflict between state law and federal law and it's just a routine matter in the federal courts that when state law conflicts with federal law you can bring a federal claim under section one thousand nine hundred and three to enforce the federal right unless saying alternative remedy then of course congress can display section nine hundred and eighty three but unless congress does so section one hundred and eighty three provides the remedy and it provides a remedy here coming back to the pan has to question if you take the readmission act out of the picture in this case we have no claim this is obviously a claim to vindicate the supreme authority of federal law and that's what x part but that's what ex parte young says when you have a suit to vindicate supreme federal authority you can go to federal  seek a death declaration or an injunction if you take the readmission act out of the picture in this case we have nothing because state law currently does not comply with the readmission act this is the read machine that act applies state wide not withstanding  on the question of timing had the plaintiffs for example in rome or waited twenty five years there would be no timing problem had the plaintiffs in a burka fell waited fifty years there would be no timing problem