William H. Rehnquist: We'll hear argument next in No. 97-2045, South Central Bell Telephone Company v. Alabama. Mr. Evans.
Mark L. Evans: Thank you, Mr. Chief Justice, and may it please the Court: After this Court granted certiorari in this case, respondents adopted a surprising strategy. In their brief on the merits, they refused to address the two issues on which the Court granted review and instead offered up lengthy arguments on issues that the Court had not agreed to review and, in fact, arguments that respondents had not made or mentioned in their brief in opposition. And then in yet another surprise about 2 weeks ago, respondents later withdrew one of those three arguments in their... in their merits brief. Barring another surprise today, therefore, what we are left with are two arguments, neither of which can succeed unless the Court is prepared to overrule a very large number of its Eleventh Amendment and Commerce Clause precedents. To bring the case rather briefly back to where it started, the Court granted certiorari to consider two questions: one involving Alabama's use of res judicata as a bar against a constitutional challenge to an Alabama State tax brought by taxpayers who were complete strangers to the prior judgment that was asserted as a bar, and the second involving the lawfulness of Alabama's franchise tax under this Court's Commerce Clause precedents. Now, although respondents put up a defense on both of these issues in their brief in opposition, they obviously chose not to do so again in their merits brief. And I think I can understand why. It's because both issues are controlled by this Court's recent and frequently unanimous precedents. The due process in our case is a near... in our... in our judgment is a near clone of Richards against Jefferson County, which was decided less than 3 years ago by a unanimous Court in another case that came from Alabama. And the Commerce Clause question is controlled by Fulton against Faulkner and in another recent Commerce Clause decisions of this Court that have condemned facially discriminatory taxes and that have narrowed the complementary tax doctrine. I don't think I will belabor these points because they are not contested at this point, but as we explained in our brief, the Alabama franchise tax is unlawfully discriminatory because it taxes Alabama corporations based on the par value of their capital stock, a figure that they are utterly free to set and adjust as they wish without any effect on their business operations. But it taxes out-of-State corporations based on the capital actually employed in the State, in other words, based on their business operations in Alabama. In our view there's no... no need to look any further because any tax that allows in-State corporations to, in effect, determine their own tax liability and not out-of-State corporations is facially discriminatory. In their merits brief in this Court, respondents obviously have abandoned their defense on both of these issues, and they've raised three new issues, one involving the jurisdiction of the Alabama State courts, one challenging this Court's appellate authority under the Eleventh Amendment, and one attacking the entire body of this Court's negative Commerce Clause jurisprudence. The first of these issues need not concern the Court any longer because 2 weeks ago Mr. Cooper wrote a letter to the clerk withdrawing his jurisdiction argument and acknowledging that it was in error. And in our view--
Ruth Bader Ginsburg: Mr. Evans, may I just--
Mark L. Evans: --Yes.
Ruth Bader Ginsburg: --ask to... I... I take it, from what you've said so far, that... that Justice See on the Alabama Supreme Court who spoke before on the nine... that his position is essentially right. Is that--
Mark L. Evans: Yes, exactly right. Justice See actually... just... just one minor correction... spoke for three with another who did not join the opinion but... but also dissented. In our view, the Court need not reach any of the other issues that... either of the other issues that respondents raise here because they've waived those arguments by not presenting them in their brief in opposition. But if the Court does reach the issues, we believe the Court should reject both of these arguments. Both ask the Court to overrule rafts of its own precedents without any serious justification in our view. The Eleventh Amendment theory is that in actions brought against the State in State court with the State's consent, this Court has no constitutional power at the end of the... the end of the process to review a resulting State court judgment raising Federal questions and... and deciding them in the favor of... in favor of the State. But that issue was unanimously resolved against respondents' position just 9 years ago in McKesson, and respondents have provided no good reason to revisit it. And in their negative Commerce Clause argument, the respondents ask the Court to nullify a principle the Court has embraced for at least a century and a half and that has engendered enormous reliance throughout the Nation's economy. And moreover, they ask the Court to do this in the least controversial aspect of the negative Commerce Clause, one that invalidates State laws that... that facially discriminate against interstate commerce. As we explain in our reply brief, there is simply no reason to do either of these things. Neither of the doctrines that we're talking about were announced and splintered or badly reasoned opinions that reflected departure from established precedent. Neither has proved unworkable. Some members of the Court have questioned what they view as excesses in the application of the negative Commerce Clause, but even those members have regularly expressed a willingness to continue to apply the core principle of anti-discrimination. And finally, it's not insignificant that Congress has power to alter the effects of both of these jurisprudential principles. Under the negative Commerce Clause, they can exercise authority to permit the States to do what respondents here would like to be able to do, and even under Article III, Congress could restrict this Court's appellate authority if it felt it was appropriate to do so. And the Court's precedents have repeatedly made clear that stare decisis has extra force where Congress can itself make changes in the Court's decisions.
William H. Rehnquist: --Mr. Evans, do you think the... the Congress could cut off this Court's appellate jurisdiction, say, just in Commerce Clause cases?
Mark L. Evans: I... I don't know the answer to that, and it's clearly not something we need to worry about at the moment. But I think it would raise an interesting question, and it may well be able to do that under... under its Commerce Clause authority. It would be an interesting question I think constitutionally whether that is appropriate or not.
Antonin Scalia: But it can reverse our Commerce Clause decisions.
Mark L. Evans: That's for sure. This... one of the things that I've noticed recently, in this term even, is that the Court has repeatedly refused to consider arguments raised by respondents as alternative grounds for affirmance that have not been preserved, sometimes invoking rule 15.2, sometimes not. And the most recent was in El Al Airlines just last week where the Court declined to consider an argument that was not presented in the brief in opposition. Earlier this term, there was a case called Knowles. So, from the point of view of petitioners, the Court should not address either of these new arguments that have been made by respondents, but should simply decide the questions on which it granted certiorari, reject the arguments that respondents made in their brief in opposition on those grounds, reverse the judgment, and remand it for provision of appropriate relief consistent with the Court's precedents.
Antonin Scalia: In any of those cases, was the new argument that we rejected an argument to the effect that we have no jurisdiction?
Mark L. Evans: There are cases, Justice Scalia, in which... at least two cases in which the Court has recently said that if a State does not raise an Eleventh Amendment argument, it need not be considered. And in one case, Patsy--
Antonin Scalia: Is that because that may not be a jurisdictional argument?
Mark L. Evans: --Well, that's right. It has... it has... as the Court has put it, it partakes of jurisdiction in the sense that it can be raised later in the process than at the first instance, but it is not jurisdictional in the sense that the Court must consider it on its own motion. And in... in fact, in Patsy, where the argument was raised in a brief in opposition but not pursued in the merits brief, the Court felt no obligation to consider it.
Antonin Scalia: I think you have to make that point because... I think you have to make that point because if it is strictly speaking a jurisdictional--
Mark L. Evans: Yes.
Antonin Scalia: --point, not only do we have to entertain it if... if the respondent raises it here for the first time or the petitioner, indeed we have to entertain it on our own, even if he doesn't raise it here for the first time.
Mark L. Evans: I... I fully agree.
William H. Rehnquist: Well, there's some earlier Eleventh Amendment cases, aren't there, Reed Detective and that Indiana case, that say it can be raised here for the first time?
Mark L. Evans: It can be raised here for the first time, and I'm not suggesting anything to the contrary, but it needs to be raised properly. And here, where in... in these more... in Patsy where it was not raised properly in the merits brief, even though it had been raised here, the Court felt no obligation to consider it. Here, what I think is even worse, it was not signaled to the Court in the brief in opposition, but showed up for the first time in the merits brief. Certainly a respondent could not come here and make an argument for the first time in oral argument. There's some requirement of propriety about when something must be presented, and this Court has every reason to disregard an argument that shows up for the very first time in the brief on the merits.
John Paul Stevens: Mr. Evans, what are the two cases you were saying where we had done this before?
Mark L. Evans: The case called Knowles, K-n-o-w-l-e-s, which was decided earlier this term, footnote 2, which refused to consider an alternative argument presented for the first time in the merits brief and not in the brief in opposition, and El Al Airlines, which again was not preserved in the... where the argument was not preserved in the merits brief, and that was in footnote 10 of that decision.
Stephen G. Breyer: Well, I don't see why... why is it inappropriate to raise this? What he's raised in the Commerce Clause is an argument he couldn't really raise before this Court. I mean, the argument previously was whether or not the Commerce Clause jurisprudence was properly applied, and... and now he agrees that Alabama was wrong. They didn't apply it properly. But he's saying that the cases of this Court which set it forth are wrong and we should overturn them. Well, I don't it's fair to ask him to have raised that before the lower court--
Mark L. Evans: And I'm not... Justice Breyer, I'm not asking that they do... that the respondents have any obligation to do that. If they want to present that argument here--
Stephen G. Breyer: --Yes.
Mark L. Evans: --they can. But they do have an obligation to present it in their brief in opposition, in part, to give notice to petitioners so that we can consider briefing the issue in the opening brief, but more importantly, for this Court's control of its own docket, to know what it is buying into when it grants certiorari.
John Paul Stevens: And also to give notice to the amicus.
Mark L. Evans: And to the amici, absolutely.
Ruth Bader Ginsburg: And that's why we have it in our rules, that if you want to bring it up, put it in the brief in opposition and not for the first time in the respondents' brief.
Mark L. Evans: That's right, Justice Ginsburg. Unless the Court has further questions, at this point I will reserve the balance of my time.
William H. Rehnquist: Very well, Mr. Evans. Mr. Cooper?
Charles J. Cooper: Mr. Chief Justice... excuse me... and may it please the Court: The argument that has preceded me has crystallized, I think, two issues: one with respect to our Eleventh Amendment argument, one whether or not it is appropriate for it to be taken up and considered by the Court in light of the fact that it was not mentioned in the opposition to the certiorari; and second, if it is, whether it has merit. This Court's rule 15.2 says that we may waive an objection based upon what occurred in the proceedings below if the objection does not go to jurisdiction. Go to jurisdiction. We submit to the Court that the Eleventh Amendment goes to the jurisdiction of this Court. Just a little over 2 years ago, this Court in Seminole Tribe said that the Eleventh Amendment stands for the constitutional principle that State sovereign immunity limited the Federal courts' jurisdiction under Article II. The Court has repeatedly stated that the Eleventh Amendment, for example, in the Ford case which really is on all fours with our circumstance here, the Ford Motor case--
Ruth Bader Ginsburg: Mr. Cooper, may I interrupt you with this point to read from a unanimous opinion 9 years ago with which you are no doubt familiar. It says, the Eleventh Amendment does not constrain the appellate jurisdiction of the Supreme Court over cases arising from State courts. Period. Now, that... you are asking us to overrule a unanimous 9-year-old decision. Is that correct?
Charles J. Cooper: --That is accurate, Justice Ginsburg. I have many reasons for that request that I... that I will... that I will address, but--
Ruth Bader Ginsburg: May I ask you also as an anterior question, do we take it that you are not pursuing any of the... the questions that were in... raised originally? You are... you are not defending the res judicata point that the Alabama court relied on and you're not defending their analysis of the discriminatory tax.
Charles J. Cooper: --Justice Ginsburg, that is accurate. We are saying that the Commerce Clause merits argument is that we... we're entitled to prevail on that but not because of the Alabama Supreme Court's correct application of the Commerce Clause precedents, but rather because, as three members of this Court argued not long ago, the dormant Commerce Clause cases are not well considered, and the Court should carefully reexamine those arguments that were advanced by those--
Ruth Bader Ginsburg: But so, if we don't... if we don't accept these new arguments you're presenting today, then you agree that we must reverse the... the judgment.
Charles J. Cooper: --Unless some member of this Court can think of a different argument, Justice Ginsburg, for upholding the Alabama Supreme Court's decision, that is accurate. Our premise argument however, Justice Ginsburg, is that this Court cannot reach the merits of this issue because of the Eleventh Amendment. And again, Ford Motor Company, which I think the Chief Justice was referring to earlier, the Indiana case, Your Honor, is on, we believe, all fours in terms of the ability of the Court to take the case up. There the... the State of Indiana did not raise the Eleventh Amendment in the district court. It didn't raise it in the Seventh Circuit. It didn't raise it in its op cert. In fact, it raised it in its merits brief because--
John Paul Stevens: Of course, we've changed our rules on what the brief in opposition has to include since the City of Tuttle... Oklahoma City against Tuttle I think.
Charles J. Cooper: --If... if the... if this is not a jurisdictional point, if this issue doesn't go to jurisdiction, then the Court could certainly exercise its discretion not to reach the issue. It's our submission, Justice Stevens, that the Eleventh Amendment and this Court's consistent understanding and application of it--
Stephen G. Breyer: I don't understand your rule actually. I mean, this is... can you explain? The copy I have, which may be... it says, any objection... any objection to consideration of a question presented, based on what occurred in the proceeding below, if the objection does not go to jurisdiction, may be deemed waived. I take it yours is not an objection based on what occurred in the proceeding below.
Charles J. Cooper: --Not at all, Justice Breyer. In fact--
Stephen G. Breyer: Then this rule doesn't cover it.
Charles J. Cooper: --Well, this... this... the element--
Stephen G. Breyer: Is that an argument? I don't know. I haven't focused on this rule.
Charles J. Cooper: --Oh, it's... it is absolutely our argument, Justice Breyer. Our... our contention is not that the Alabama Supreme Court was barred by the Eleventh Amendment. We don't have a problem with what... what took place below. It is that what took place below, the adjudication of the merits of the issue, can't take place here. That... that is our argument. And the reason it can't take place... so, we have a double argument under the... under rule 15.2, Justice Breyer. That's point number one. But point number two is in any event, the Eleventh Amendment goes to jurisdiction.
John Paul Stevens: Well, a better practice under rule 15 under the previous part of the rule, two sentences previous as to what Justice Breyer quoted, is for you to notify the Court what issues are properly before us, including jurisdictional issues.
Anthony M. Kennedy: You don't think you can just lay back--
Charles J. Cooper: No, Your Honor.
Anthony M. Kennedy: --from the standpoint of good practice and not tell us about jurisdictional issues.
Charles J. Cooper: No, Your Honor. We regret that this point was not mentioned in the opposition to certiorari. It would have been better practice if it had been. The part of the rule, however, that goes to and alerts counsel to the possibility of waiving an argument speaks to jurisdiction and it speaks to objections based upon what occurred below.
Stephen G. Breyer: I understand.
Charles J. Cooper: And with all due respect, we maintain that this Court actually doesn't have discretion in a jurisdictional argument that is waived... that is asserted to the Court to... to not reach the issue. Again--
Ruth Bader Ginsburg: Mr. Cooper, this is... this is the problem, as I see it, with fair notice. One could hardly anticipate such a question given that there was a unanimous decision 9 years ago addressing precisely that question and rejecting your position. So, the petitioner could hardly expect that that would be an issue in this case, and that's why this is so troublesome, that you're bringing up something that one really could not have anticipated.
Charles J. Cooper: --Your Honor, all I can say is that the issue, again, goes to jurisdiction. The question is whether or not... I think there are two different questions, whether it would have been better practice, and certainly it would have, to have mentioned this in the opposition to certiorari. The issue had been spotted that in fact what we have in this case is a suit in which... that was commenced by the petitioners, none of whom are citizens of Alabama, against the State of Alabama and its Department of Revenue, State defendants. And if this Court exercises... does reach the merits, it will be exercising the judicial power of the United States. The case is squarely within the very letter of the Eleventh Amendment, and it is our respectful submission to the Court that the McKesson case, for a number of reasons, was simply wrong. In fact--
Antonin Scalia: If... if it is a jurisdictional objection based upon sovereign immunity, which is what you assert, right, the Eleventh Amendment being a reflection of sovereign immunity, sovereign immunity is normally waivable, isn't it, by the sovereign? So, I mean, it may be jurisdictional, but... but maybe it's a peculiar... it has to be a peculiar kind of jurisdiction.
Charles J. Cooper: --Your Honor, sovereign immunity can be waived, but this Court's decisions have clearly stated that sovereign immunity must be waived in the most unequivocal way, that--
Ruth Bader Ginsburg: Not this particular situation of... of appellate review by the Supreme Court. This was not just a offhand statement. This is a very heavily footnoted, 5-page discussion of the issue, citing cases going back to Martin against Hunters Lessee.
Charles J. Cooper: --You're referring to McKesson?
Ruth Bader Ginsburg: Yes.
Charles J. Cooper: Well, Justice Ginsburg, since that case was decided, the Seminole Tribe case has been decided, and four members of this Court characterized the reasoning in McKesson as being specious, particularly in light of the Seminole Tribe case. And I would--
David H. Souter: They were also the same four who would find Federal question jurisdiction here.
Charles J. Cooper: --Yes, Your Honor, but if there is Federal question jurisdiction, if... if... if the Eleventh Amendment does, indeed, bar a Federal question case, that is, a case as in Seminole brought by a citizen of the State against the State, then the Court's analysis... or the dissenting Justices' analysis in Seminole Tribe, it seems to us, is precisely correct.
Anthony M. Kennedy: Well, of course, those... those who agreed with the majority position did so on the assumption that the Supreme Court had jurisdiction. If that assumption were to change, then those who were in the majority in McKesson might rethink the correctness of the position advanced in the dissent.
Charles J. Cooper: Might as well, Your Honor, and it may well be that here my argument is focused more specifically on the five members of the Court in the... in the majority in Seminole Tribe. But McKesson, Justice Ginsburg, while it was a unanimous decision, was premised upon... its central linchpin was the Cohens case, and it... it is simply based, we respectfully submit, on a serious misreading of the Cohens case. That case involved--
William H. Rehnquist: You don't challenge the Cohens case itself, I take it.
Charles J. Cooper: --No, not at all, Your Honor. It seems that the Cohens case, Your Honor, is... is quite correct. It simply stands for the proposition that a... when a State commences a suit against an individual, that is not a... an individual commencing a suit against the State. And so, it's not within the language of the Eleventh Amendment, number one. It's not within the purpose of the Eleventh Amendment. A State doesn't need immunity to--
Ruth Bader Ginsburg: Why isn't it within the language if it's... if it's... the State brings the proceeding, but the person who's bringing it to the Supreme Court on writ of error, or whatever it is, is going against the State at that point. I don't understand why that wouldn't--
Charles J. Cooper: --Your Honor--
Ruth Bader Ginsburg: --You say, oh, and the language in one case... in the Cohen case, the language covers it. In the case where the parties are on opposite sides, it doesn't?
Charles J. Cooper: --Your Honor, Chief Justice Marshall examined that very issue at length. In fact, we've excerpted on page 19 of our briefing the analysis of... of the Court in Cohens that went to that issue. And the... the central point is that a suit for purposes of the Eleventh Amendment is a judicial proceeding instituted by an individual that seeks some demand upon the State, some demand upon the State. And that character doesn't change when a writ of error is taken to this Court to review a decision. The... the individual is still seeking a demand upon the State. So--
John Paul Stevens: Your view of... just to kind of... your view is that any proceeding in a State court brought against the State by a citizen of another State could never be reviewed by this Court.
Charles J. Cooper: --If... if the State itself is the party defendant--
John Paul Stevens: Right.
Charles J. Cooper: --as opposed to an officer of the State. And, Your Honor, in this very case, the Commissioner of Revenue was a party until the case went to the Alabama Supreme Court. He was dropped out at that stage, and this Court could have considered this very decision... this very case had the Commissioner remained in under this Court's decisions in the Ex parte Young.
John Paul Stevens: Would the respondent have... would it be within the judicial power of this Court to grant a motion by the respondent at this stage of the proceedings to add that individual as a defendant in order to preserve the jurisdiction and review?
Charles J. Cooper: I do not think it would be, Justice Stevens. I think whether or not the Commissioner is a party to this suit as a defendant depends upon whether he was a party in the Alabama Supreme Court under this Court's rules. And it is clear from a case called Sperau, which we cite and discuss in footnote 1 of our briefing, that... that when the Commissioner was not named in the notice of appeal from the Circuit Court of Montgomery County to the appellate courts, that the Commissioner was no longer a party. The court there said it is settled law that a notice of appeal from a judgment in favor of two or more parties must specifically name each party whose judgment the appellant wishes to overturn. And this--
John Paul Stevens: Let me go back a second. I understand your response to that and I think it's probably correct. But does it... what is your view of suing individuals in their official capacity, with the Eleventh Amendment as usually taken, to bar such a suit? Can they... could... could under your view an out-of-State plaintiff avoid the Eleventh Amendment problem, when it's thinking it may need review in this Court ultimately, by suing State officials in their official capacity?
Charles J. Cooper: --Yes. Yes, Your Honor, under Ex parte Young. And--
Antonin Scalia: To get money out of the State treasury?
Charles J. Cooper: --No.
Antonin Scalia: To get back money which they have... they claim was erroneously paid into the State treasury?
Charles J. Cooper: No, Justice Scalia, but they can certainly prevent it from going forward, and that's the purpose of Ex parte Young. The question here I guess would be--
Antonin Scalia: You're trying to get it back, though, aren't you? Are you trying to get it back or are you trying to prevent its payment?
Charles J. Cooper: --Oh, I'm obviously trying to prevent its payment, Your Honor. I represent the State.
Ruth Bader Ginsburg: But they're trying to get it back.
Antonin Scalia: To the extent... these... these plaintiffs here... I thought they had coughed it up already.
Charles J. Cooper: Well but, Your Honor, they... they--
Antonin Scalia: So, they're trying to get money back out of the State treasury.
Charles J. Cooper: --Not just to get it back. They also sought injunctive relief to prevent the collection in the future of this tax, and that, Justice Stevens, would be a case that if the Commissioner were still in this--
Ruth Bader Ginsburg: But you're saying that they have nothing... nothing... no way of getting back... getting a refund. This is a suit for a refund.
Charles J. Cooper: --Well, they... they... they have the Alabama court system for getting back a refund. The question is whether or not--
Ruth Bader Ginsburg: Yes, but whatever Alabama says, this Court has no... and it's a Federal question that we're dealing with. Alabama will be the final word on that Federal question with respect to outsiders.
Charles J. Cooper: --With respect to this suit, yes, Justice Ginsburg.
Ruth Bader Ginsburg: Well, all taxpayers from out-of-State.
Antonin Scalia: With respect to all suits involving a claim for money.
Charles J. Cooper: Well, but I... I want to hasten to note, as the Court pointed out in Seminole Tribe, that there are... there are several methods where ongoing violations of the... of the Constitution, if that's what this is, can be prevented. The United States can bring an action. An Ex parte Young action can be brought. The Congress can decide to abrogate the State's sovereign immunity.
William H. Rehnquist: What would be the authority for the United States to bring an action in a case like this where you're talking about the negative Commerce Clause?
Charles J. Cooper: Well, Your Honor, I... I think that... I don't have a case to cite the Court that the United States would have authority on that score, but at least broadly considered, the United States can sue a State and there's no... there's no Eleventh Amendment problem to this Court's jurisdiction over that.
William H. Rehnquist: Well, do you think the United States can just go around and sue a State whenever it feels like it?
Charles J. Cooper: Oh, no. No, Your Honor. That's... that is not my submission. But... but I think the key point here is that Ex parte Young would... would provide the taxpayers relief with respect to going forward. But--
Sandra Day O'Connor: But in any event, for... for you to prevail here, I guess we would have to overturn McKesson and ignore our own rule as a minimum.
Charles J. Cooper: --Your Honor, I think... I think that the Court need not... if you're speaking about rule 15.2, I believe the Court can apply its rule and... and reach the Eleventh Amendment. That is our submission. I do also believe, however, that yes, it is true that McKesson was wrongly decided. The Court should reexamine it, and... and it should overrule it. Your Honor, sovereign immunity... inherent, Justice Ginsburg--
Sandra Day O'Connor: This is the kind of argument that one would certainly hope that amici would focus on and be interested in. Nobody had a clue it was going to be raised until your remarkable brief appeared here in this Court.
Charles J. Cooper: --Once again, Justice O'Connor, the Eleventh Amendment argument is a constitutional one. It is a jurisdictional one, and it is our respectful submission to the Court that the State can raise this in its... in its merits briefs. By no means did it waive its sovereign immunity in this... in this case. And, Justice Ginsburg, with respect to the notion that... that the petitioners here would have no Federal avenue of appellate review, inherent in the notion of sovereign immunity is... and inherent in the notion of the Eleventh Amendment is that the Federal courts are precluded from taking jurisdiction over a case brought against non-citizens against the State itself. And this is a case against the State itself.
Stephen G. Breyer: Once you hold that... once you say that, you know... once you treat the Eleventh Amendment as including citizens of a State against a State, which I take it we have to read into it... right? Isn't that so?
Charles J. Cooper: Well, that's the Hans case, Your Honor.
Stephen G. Breyer: Yes, all right. So... so then could... is it reasonable that the thing... if we accepted your view of the statute that this applies to the Supreme Court, cases coming out of the State courts, then wouldn't there have been a large subset of cases where it would have been impossible or difficult to enforce a uniform Federal law striking down unconstitutional State statutes, that power that Holmes thought was absolutely essential to create a Federal Nation? I... I think if your... if your view had been adopted back then and we had Hans, there would have been a whole subset of potential unconstitutional State laws that it would have been impossible for the... or State laws that conflict with the Federal statute, that it would have been impossible or difficult for the Supreme Court ever to reach. So, you would have had that. Now, is... now, you're going to deny that, and I'm very interested in your reasoning.
Charles J. Cooper: Well, Justice Breyer, I think that the point I would make to you is that if Chisolm, in Chisolm against Georgia, had advanced a Federal cause of action, I don't think that the State's reaction would have been any different. It would have... the general alarm that swept the... the country when the Supreme Court took jurisdiction over that State law claim against the State would not have... I would submit to you would not have been different if a Federal constitutional claim had been included in it. And, in fact, the... the Congress and the ratifiers of the Eleventh Amendment would have used exactly the same words in order to reach what happened there. This... this Court's--
Stephen G. Breyer: The only way it could have reached the Supreme Court would be if the States basically had waived their sovereign immunity within their own courts. Right? Otherwise, the issue couldn't have come up.
Charles J. Cooper: --Well--
Stephen G. Breyer: And if it had come up in that form, what would have been the objection to the Supreme Court hearing it?
Charles J. Cooper: --Two points, Your Honor. First, that the... this Court has recognized that a... a State's waiver of its own State sovereign immunity in its own courts doesn't... in Atascadero, the Court made clear that the waiver of sovereign... of the Eleventh Amendment must be specifically worded. So, Alabama's waiver here does not include a waiver of its Eleventh Amendment because it doesn't mention the Federal... the Federal court. And the... as I say, in the Chisolm case, the... if... if there had been a contract clause or... and that was an original action. But, Your Honor--
Stephen G. Breyer: So, your answer to me is, well, the Eleventh Amendment does create such a subset of cases. All the State has to do is keep out of the courts. And... and this doesn't make matters that much worse. That's the answer.
Charles J. Cooper: --That's... that's... that's essentially it, Your Honor. But... but I think the Court's focus on... on... on Chisolm is... or at least on the origins of the Eleventh Amendment is... is... is well taken.
William H. Rehnquist: Well, does your... does your doctrine that you're espousing now have a Ex parte Young exception to it?
Charles J. Cooper: Your Honor--
William H. Rehnquist: So that you could sue... you could sue the Alabama Revenue Commissioner in... in... in State court and bring that suit here if it was decided against you on a Federal ground.
Charles J. Cooper: --Yes, Your Honor.
John Paul Stevens: For refund? For refund, is it?
Charles J. Cooper: No. Thank you, Justice Stevens. I think that's an important amendment. I think Ex parte Young only goes as far as Ex parte Young, but I think it's available to the petitioners in this case and it would... and it would allow the case to be brought to this Court as an at least--
Ruth Bader Ginsburg: How... how many years was, Mr. Cooper, this case in litigation, this refund claim?
Charles J. Cooper: --Your Honor, the... the refund claim I think was in the Alabama court somewhere on the order of a decade.
Ruth Bader Ginsburg: Yes, and all that time the corporation must pay the tax, and on your Ex parte Young theory, maybe there could be a prospective relief, but for all those 10 years, the Federal Court, this Court, is unable to say that the State law was unconstitutional. And there's no remedy at all for 10 years of unconstitutional behavior on the part of the State.
Charles J. Cooper: Your Honor, I think that's... I think that is the consequence, the unavoidable consequence, of sovereign immunity. I think that is inherent in the notion of sovereign immunity.
Ruth Bader Ginsburg: And that would certainly run counter to Justice Breyer's reference to Holmes saying it wouldn't matter so much if this Court didn't have the authority to declare an act of Congress unconstitutional, but if it lost that power with respect to State laws, the Union would be something quite different from what it is.
Charles J. Cooper: Your Honor, the... the language of the Eleventh Amendment, its... its very letter, does not contemplate this exception. It says the judicial power of the United States. When this Court reaches the merits of this case, it will be exercising the judicial power of the United States. The Eleventh Amendment specifically and precisely enjoins this Court from construing the judicial power of the United States to extend to a suit commenced by these petitioners, non-citizens of Alabama, against Alabama.
Anthony M. Kennedy: Well, if we're going to be fastidious about the language of the Eleventh Amendment, we'd have to redo a lot of our jurisprudence, wouldn't we? [Laughter]
Charles J. Cooper: Well, Your Honor, I think that... my answer, Justice Kennedy, is this. Never has this Court cut back on the Eleventh Amendment. In fact, every time it has recognized that the letter of the Eleventh Amendment doesn't exhaust the protections of the Eleventh Amendment, it has extended it, such as in Hans, to citizens of a State, such as in Monaco, to foreign nations. How is it... how can it be that in Seminole Tribe that a case that is not within the letter of the Eleventh Amendment, brought by citizens of the State of Florida, and despite--
John Paul Stevens: Mr. Cooper, the issue I suppose, even on the letter, is whether this is a suit within the meaning of the Eleventh Amendment, and that's the answer Justice Marshall gave. The writ of error was not a suit. And you could similarly, it would seem to me, say that a proceeding in State court is not a suit within the meaning of that provision because that's dealing primarily with original Federal actions.
Charles J. Cooper: --Your Honor, I think Cohen is a very difficult road for that argument. A writ of error in that case wasn't a suit because it was... because the suit had been commenced by the State against the individual.
John Paul Stevens: I understand.
Charles J. Cooper: And... and--
John Paul Stevens: But it's still a key to your argument that we read the word suit to refer to the State proceeding because--
Charles J. Cooper: --Oh, yes.
John Paul Stevens: --the petition for cert isn't a suit. So... and... and it seems to me one could conceivably say they were thinking about actions originated in a Federal court, and that's the kind of suit that is referred to in that... in that provision. That's consistent with what Chief Justice Marshall said. And incidentally, we don't just have to overrule McKesson. We've got overrule all the cases in the footnote he cited too. There are about 30 of them there.
Charles J. Cooper: Your Honor, I think Chief Justice Marshall in Cohens made clear that the... that... and that was a case that came up out of the State--
John Paul Stevens: Correct.
Charles J. Cooper: --appellate system. And... and... and if it was as easy as nothing that happens in the State constitutes a suit, then--
John Paul Stevens: Within the meaning of the Eleventh Amendment.
Charles J. Cooper: --Within the meaning of the Eleventh Amendment, then a very short opinion. But Justice... but Chief Justice Marshall analyzed at great length what a suit is, and he said it's any proceeding brought in a court of law, court of justice, which included, presumably, the courts of Virginia, by a non-citizen. So, Your Honor, I think... I think it would be a very strange, with all due respect, interpretation of the word suit to suggest that the framers and the ratifiers of the Eleventh Amendment didn't contemplate at all a suit coming to the courts through the appellate route as opposed to initially instituted in the Federal court route. In fact, presumably, the Federal courts of appeals could be authorized to review State supreme court decisions if... if... if that view is correct.
Stephen G. Breyer: They are actually in some instances. In the FDIC area--
Charles J. Cooper: Well, this--
Stephen G. Breyer: --there were some. In the FDIC area, there... when... a Federal takeover of a bank, there is appellate jurisdiction. I've had them. We had those cases.
Charles J. Cooper: --But surely not when the State is--
Stephen G. Breyer: Yes, it was tried in the State court, tried in the State court, and they got their appeal over to the Federal appeals court.
Charles J. Cooper: --When the State itself is a defendant.
Stephen G. Breyer: In that case.
Charles J. Cooper: Yes.
Stephen G. Breyer: I... it didn't--
Charles J. Cooper: Your Honor, I... my time is about expired and obviously I have little time left to devote to our... our respectful request that the Court reexamine this Court's negative Commerce Clause jurisprudence. We have nothing to add to the treatment that was provided by Justice Thomas in his dissenting opinion not... not long ago in the... in the Camps Newfound case on the merits of that point. But I would like very briefly to address the issue of stare decisis and the... thank you, Your Honor.
William H. Rehnquist: --Thank you, Mr. Cooper. Mr. Evans, you have 18 minutes remaining.
Mark L. Evans: Just three very quick points. Mr. Cooper has referred to Seminole's... the opinion in Seminole as suggesting that there are other routes to raise Federal issues. The footnote I believe he is referring to is footnote 14, and the three items that are mentioned are a suit by the United States, an Ex parte Young action, and then I'd like to just quote this language. And this Court is empowered to review a question of Federal law arising from a State court decision where a State has consented to suit. That is this case, just to underscore Justice Kennedy's point that the assumption underlying Seminole may well have included this Court's appellate authority over a case like this. Second, Mr. Cooper mentioned the Ford Motor case as an example of one that held that a... a waiver of State sovereign immunity does not necessarily translate into a waiver of Eleventh Amendment immunity. True, but only with respect to actions in the district court. That very case, which is typically cited for this proposition, says the following at page 470 at 323 U.S.-- As we indicated in the Reed case, the construction given the Indiana statute leaves open the road to review in this Court on constitutional grounds after the issues have been passed on by State courts. So, the very decision in which the Court held that a... a State sovereign immunity waiver does not convert to an Eleventh Amendment waiver also assumes that there's review available in this Court. And finally, a lot of this we believe is entirely hypothetical because the... for purposes of Alabama law... this is a case cited at page 6 of our reply brief... in a case called State against Norman Tobacco, which was basically the reason the jurisdictional argument that Mr. Cooper had made as his first argument did not work. The Alabama Supreme Court said that a... an action of the sort we have here... and I'm quoting again... is not a suit against the State. Now, that doesn't necessarily bind this Court in its interpretation of the Eleventh Amendment, but that bears some relevance to the question. Unless the Court has further questions.
William H. Rehnquist: Thank you, Mr. Evans. The case is submitted.
Speaker: The honorable court is now adjourned until tomorrow at ten o'clock.


John G. Roberts, Jr.: We will hear argument next in Case 10-1211, Vartelas v. Holder. Mr. Bibas.
Stephanos Bibas: Mr. Chief Justice, and may it please the Court: As the government concedes, INA subsection 101(a)(13)(C)(v) added by IIRIRA does not expressly mandate retroactivity. Under Landgraf, applying that new provision would attach new legal consequences to pre-IIRIRA offenses, penalizing both those who travel and those who don't. Covered lawful permanent residents could not visit their parents abroad without being forced to abandon their children here. They would be removed from the country or else confined here. Either way, they would lose an ability they had under pre-IIRIRA law based on pre-IIRIRA offenses. Thus applying the subsection to them would be impermissibly retroactive. The settled expectations at issue here are those of round trips by lawful permanent residents, not, as the government would put it, one-way tickets or first-time entrants. These are people who have structured their lives here. They have homes, spouses, children, and careers here, and yet have a settled expectation that they will be able to maintain ties to visit aged and ailing parents abroad, to go to funerals and wakes and visit them in the hospital and surgeries. Our amici, the NACDL brief, and the Asian American--
Ruth Bader Ginsburg: As far as going forward is concerned, that's -- that's just the way it is, right?
Stephanos Bibas: --Yes, because Congress has expressly changed the law post-IIRIRA. The question is for those before IIRIRA, whether those settled expectations are being disrupted.
Ruth Bader Ginsburg: Could they -- could they -- the -- the person who -- who is here and then the new law is passed, could that person have petitioned for discretionary relief before traveling?
Stephanos Bibas: Yes, Your Honor, that is a possibility. That is not the same as the automatic ability to travel, and in fact in this case the discretionary relief was denied. It depends on a different set of factors from the automatic pre-IIRIRA ability to travel. But it is a theoretical possibility in some cases.
John G. Roberts, Jr.: So your expectations argument is that somebody trying to figure out whether to go ahead and rob the bank is going to say, well, if I do and I am caught and I am found guilty, I won't be able to take temporary trips abroad, so I'm not going to rob the bank?
Stephanos Bibas: No, Your Honor. First of all, you phrased it specifically as a reliance argument, which is an alternative. Even the government concedes it is not a prerequisite. Second, the right time to look at expectations is the moment before the law is enacted: Does one have an expectation at that point that one will be able to continue--
John G. Roberts, Jr.: You are concerned under Landgraf, I think, with whether or not it disrupts settled expectations, and it just doesn't seem to me that this issue enters into the expectations at all when the pertinent act, which is the commission of the crime, not the pleading guilty, takes place.
Stephanos Bibas: --No, Your Honor, I believe the practical impact is a new travel disability or penalty, just as in Landgraf. The discrimination there had been illegal for decades, yet adding a new form of damages to it was impermissibly retroactive. In Hughes Aircraft, filing false claims with the government had been illegal for years, yet broadening the class of people who could file suit and removing a defense -- no reliance possible at all, but there was a settled expectation that there would be no additional consequences attached to that.
Samuel A. Alito, Jr.: What is the difference between someone who commits the crime just before the act is passed and someone who commits the crime just after the act is passed? The person who commits the crime just after the act is passed had the expectation prior to the passage of the act that if he did certain things he wouldn't -- he wouldn't have this consequence from his conduct.
Stephanos Bibas: Congress of course has the power to change things. But the expectation until an act is passed is that the consequences are fixed in time. And if Congress decides that the potential unfairness is outweighed by the benefits of making the act retroactive--
Samuel A. Alito, Jr.: But the person who commits the crime just after the act is passed had the expectation prior to that time, that had -- if he did certain things in the future he wouldn't suffer certain consequences.
Stephanos Bibas: --And yet Congress has -- has affirmatively warned and put everybody on notice that now there is this new consequence; you may be deterred by this new consequence; we may be punishing you by this new consequence, but the consequence has been announced.
Antonin Scalia: Mr. Bibas, I have -- this is almost a question of personal privilege. You -- you make your whole argument on -- on the basis of Landgraf. So does the government. You do not cite, the government cites but does not discuss the relevant portion of a -- of a later case which involved the same question, Republic of Austria v. Altmann. I concurred separately in Landgraf because I thought that the test that the Court was using, upsetting settled expectations, was indeed the proper test for constitutional provisions forbidding ex post facto laws, which is where the Court derived it from, Justice Story's opinion in a New Hampshire constitutional case. But I said in my concurrence that the proper test for -- for the other issue of retroactivity, namely, constitutionality aside, does this statute mean to be applied only in the future or in the past? And for that I propose -- well, I'll read you what we said in Altmann: "Our approach" -- which postdates Landgraf. "Our approach to retroactivity in this case thus parallels that advanced by Justice Scalia in the concurrence in Landgraf. " Quote, and it's quoting the concurrence: "The critical issue is not whether the rule affects vested rights or governs substance or procedure, but rather what is the relevant activity that the rule regulates. " "Absent clear statement otherwise, only such relevant activity which occurs after the effective date of the statute is covered. " "Most statutes are meant to regulate primary conduct and hence will not be applied in trials involving conduct that occurred before their effective date. " "But other statutes have a different purpose and therefore a different relative retroactivity event. " --"relevant retroactivity event". And that is what we have here. The -- the event that is sought to be regulated is entry into the United States, and it is clear that this statute applies only to prospective entry into the United States. It doesn't apply to past entry so that those people who came in, in violation of this statute can be deported. Now, why shouldn't we apply that rule in this case, as we did in the Republic of Austria case?
Stephanos Bibas: No, Your Honor. As a -- first of all, our reply brief discussed Altmann, and the majority of the Court has viewed that as limited to the foreign sovereign immunity context. But taking your test--
Antonin Scalia: Why would it be limited just to the foreign sovereign immunities context?
Stephanos Bibas: --That -- that's the majority's approach. But taking your test on its own terms, what you are pointing out is there is a future act--
Antonin Scalia: Why do you say that's the majority's approach?
Stephanos Bibas: --I'm sorry. The majority in Fernandez-Vargas expressly said that Republic of Austria was in a sui generis context and that its holding shouldn't be extended to -- to Fernandez-Vargas.
Antonin Scalia: Its -- its holding.
Stephanos Bibas: Yes. But to take -- to look at your test, you were pointing out that there is a future event which the government, practically its entire theory turns on that. But even if there is a future event, there is a past event being regulated here, and the activity at issue under your test would be the pre-IIRIRA offense, not just the innocent post-IIRIRA travel. What we have is future lawful travel, concededly lawful, nothing nefarious needs to be shown of it.
Elena Kagan: Well, Mr. Bibas, how is it different then from a felon in possession statute, where you look at the past offense--
Stephanos Bibas: Right.
Elena Kagan: --and then you say, well, this man, because of that past offense, can't buy a gun in the future? How is it different at all?
Stephanos Bibas: Your Honor, there are five pertinent distinctions. Permit me to unpack. The first and most important is that the Landgraf test should have a broader scope than the ex post facto context in these criminal cases because Congress can override it expressly. Since the ex post facto clauses disable both State and Federal legislatures from acting at all, the deprivation of the power must be narrow and careful so State and Federal legislatures can continue to regulate felon in possession or racketeering or the other crimes the government advances. But Landgraf just tells Congress how to legislate. It's a background rule. So it's legitimate to have a presumption against retroactivity sweep more broadly, as Congress is free to override it and, as I will explain, does override it regularly. Secondly, felon in possession is inherently dangerous conduct. This is a protective law. It's not just a punitive or deterrent law. The third and related point is that felon in possession laws are tailored. There is a nexus to a danger, a threat to people suffering firearm -- it's narrowly tailored. Fourth--
Elena Kagan: Well, why isn't the -- the government, Congress, making the exact judgment same judgment here? If the activity to be regulated is entry and Congress is making a judgment that we do not want dangerous people to enter, and we're using the conviction, the prior conviction, as a marker for who was dangerous, and that's exactly what Congress has done in the felon in possession statute.
Stephanos Bibas: --Your Honor, I believe the two are quite different. Felon in possession is limited to firearms in the hands of proven dangerous people. Here we have a law that says you can stay in the country indefinitely; we are going to discourage you from going abroad and leaving the country, because we will make it harder for you to come back. That is not tailored at all to protecting the people inside the United States. I would also point out that the felon in possession statute, as this Court noted in Heller, is part of a long tradition of forbidding such activity as a crime. So it's hard to say there are settled expectations being upset by felon in possession laws. And the final one is, Congress can do that simply by being explicit, and it has done so repeatedly in laws such as IIRIRA. Elsewhere in IIRIRA, section 321(b) says the aggravated felony definition applies to convictions entered before, on or after the statute's effective date. It knew how to do it; it did it more than a dozen other times in IIRIRA, as this Court noted in St. Cyr. It didn't spell it out here. The point of this--
Sonia Sotomayor: The career criminal enhancements, instead of the felon in possession, and assuming your arguments, what limits can Congress put on anyone with respect to future conduct if it's going to be a burden? Under your view, it stops people from traveling. Career criminal statutes put on the distinct disadvantage of a longer sentence.
Stephanos Bibas: --Yes, Your Honor, and as we noted in the criminal context, this Court in Witte and Gryger notes, it's a heavier punishment on the new crime because it's aggravated, because it's repeated. And because Congress has more leeway in the ex post facto context and because recidivism enhancements have a long tradition, it's entirely legitimate. There's no need to say that that's punishing the past offense because the future offense -- it -- it's permissible to increase it under the Ex Post Facto Clause. And that's an inquiry that's different from the Landgraf test here, because all Congress has to do is spell out expressly: We want to apply this to convictions entered before, on, or after the statute's effective date, which it did in 321(b), which it didn't do here. So if we were looking at the function of--
Sonia Sotomayor: Does that argument that you just made go more to whether or not the BIA's conclusion that Congress intended to rescind the Fleuti decision -- but you assume that's what its intent was?
Stephanos Bibas: --We've assumed arguendo because that's the premise of the question presented.
Sonia Sotomayor: So if we assume that, if we assume that was Congress's intent, doesn't that start give you the conclusion? If Congress tended to undo it, doesn't that prove that they intended to effective retroactively?
Stephanos Bibas: No, Your Honor, it doesn't. All the case law, the legislative history, and other discussion was about certain other aspects of entry doctrine that needed to be changed. The discussion was express about saying: We're changing the definition from entry to admission, because we don't want people who snuck into the country outside of--
Sonia Sotomayor: No, no. Those go to the basic premise.
Stephanos Bibas: --Right. Right.
Sonia Sotomayor: If you assume Congress intended to rescind the prior doctrine, isn't that proof itself that it intended to apply the statute retroactively?
Stephanos Bibas: No, Your Honor--
Sonia Sotomayor: To this conduct?
Stephanos Bibas: --No, Your Honor. Congress can intend to rescind -- to abrogate a statute such that it will have no effect going forward. But as this Court noted in Landgraf, the -- the background default rule that the public and Congress expect is that new laws will apply prospectively. That has the virtue not only of giving a clear background rule which -- against which Congress legislates, against which it did legislate in IIRIRA, but it also forces Congress to advert to the potential unfairness of retroactivity and decide that the benefits outweigh it. That's what this Court said in Landgraf. It makes perfect sense and that clear statement rule serves the function of having them smoke out into the open. If you think it's beneficial to make this affect convictions in the past, just say so. But it didn't. So to go back to our primary point, with the practical impact or effect being a new travel disability, the government's argument seems to boil down to that, because there is one event that must happen after the statute's effective date, therefore there can be no retroactive effect.
Elena Kagan: Well, that event is the event that the government cares about, which is the entry into the country. It's not as though the -- you know, the government says -- just picks an event at random and -- and makes it the trigger mechanism. The government has picked the event that it wants to regulate, which is entry.
Stephanos Bibas: Yes, Your Honor, but this is an effect test, and under Martin v. Hadix and Landgraf, we have to take a commonsense functional view of what the effects are, the new legal consequences. I--
John G. Roberts, Jr.: I would have thought your answer to my colleague would be: No; what they want to regulate is the staying in the country, and they're trying to make that as uncomfortable as possible in order to encourage the individual to leave. If he can't go to the, you know, the parent's party, the cousin's wedding or whatever, he is just going to leave, and then once he does, he can't come back. Why would -- why would the government care -- it's a question for them, I'm sure. Why would they care whether somebody that they don't want to be here stays here? It seems to me the exact opposite. So I would have thought your argument -- your answer would be, no, what they are trying to regulate is not the coming and going, but simply the staying.
Stephanos Bibas: --Yes, Your Honor, you're right that, particularly given the strange way in which its written, it's hard to understand it as something other than a penalty and possibly a deterrent, but certainly a penalty based on past crimes, to make life uncomfortable. And that does not speak of a protective, forward-looking exclusive function, if that's the test. But to go back to the earlier point, if that were -- if we were to follow the approach Justice Scalia outlined, that would be the right response. But we don't even need to get there because the primary test under Landgraf is not the point or function or purpose, but an effects test. The effect, as the government concedes, is to force him to choose between his parents in Greece and his wife, children, career, and home here.
Antonin Scalia: But there are a lot of -- but there are a lot of statutes which we interpret to be valid and not retroactive which have a substantial effect. You can pass a statute altering the rules of evidence which have the effect of making someone who committed a prior murder convictable, whereas before he was not convictable. And we don't just look to the effect and say, well, it has that substantial effect so it's operating retroactively. We say, no, it's a rule of evidence that applies in the future and that evidence can come in. That's the big problem with this other approach. There are often adverse effects upon activities that occurred before the statute was enacted, but we still regard the statute as prospective only and therefore not subject to special rules for people who are affected.
Stephanos Bibas: Well, setting aside the difference between the ex post facto context and the civil context, and there is the procedural distinction, which I know Your Honor didn't sign on to, it's also relevant that here it is directly expressly tied to a past conduct. It's a precondition. It's not even a piece of evidence or something one can draw an inference from. It is a precondition for ineligibility under 101(a)(13)(C)(v). And therefore it looks like the disability that Justice Story said, a disability has to involve future conduct. But if it's expressly disabling future conduct, that's a penalty on past conduct. The disability in St. Cyr of not being able to apply for future discretionary relief. The disability in some other cases of this Court that we found after briefing and alerted opposing counsel to, Cummings v. Missouri and Ex parte Garland in volume 71 of the U.S. Reports. Even though the law there forbade teaching in the future or holding office or preaching or being a member of the bar, the government's theory would say: Those are post-enactment things; just refrain from teaching; you don't have a vested right to teach. This Court said: No; we recognize those are expressly targeted to punish the past membership in the Confederacy that triggers that disability. And so the government's approach would render the Justice Story's disability category a nullity.
John G. Roberts, Jr.: Does it matter in the examples that you just gave that admission to the United States is purely a matter of legislative grace, while we might conclude that teaching, being a member of the bar, whatever, is not?
Stephanos Bibas: I don't believe that that is important. That only matters for the vested rights argument, and this Court in Cummings said expressly it was dealing with a privilege. So -- moreover--
John G. Roberts, Jr.: I'm sorry? Which privilege was that?
Stephanos Bibas: --The privilege of teaching or the privilege of holding office. So you can't rest on a right privilege--
John G. Roberts, Jr.: I suppose that might have been regarded as such then, but not under current law.
Stephanos Bibas: --Okay. Well, another answer -- in St. Cyr the government made the same argument, and this Court said: Well, sure, Congress has the plenary power to change the rules any time it wants; just do it expressly. The question is not whether Congress can, but whether it has in fact changed the rules expressly, to make that express tradeoff that the potential unfairness of retroactivity is worth it. Now, the final point here, I believe there was some reference earlier to reliance in the offense. And as the government concedes, reliance is not a prerequisite. This Court can rule for Petitioner and not even bother with reliance. But the presence of reliance here is an extra factor that supports -- that shows the retroactivity to be obvious and severe. So the court of appeal's whole premise that reliance is necessary goes away. The government concedes the court of appeals implicitly was wrong on that. As a practical matter, our point is that defendants rely on the known consequences of offenses when they decide to plead guilty. As this Court recognized in--
John G. Roberts, Jr.: When they decide to plead guilty. The operative issue here is when they commit the crime.
Stephanos Bibas: --We don't claim that there is a reliance interest in committing the crime, but in the decision to plead guilty as a practical matter the defendants weigh a number of consequences. And one of those is whether they might have a 4-month discount off their sentencing guidelines, which was the inducement here, and another one is will they ever be able to see their parents again.
John G. Roberts, Jr.: So this -- so this--
Anthony M. Kennedy: So you draw the line on -- your position is that only those who have entered a guilty plea are entitled to the presumption against -- non-retroactivity, but not those who have been found guilty?
Stephanos Bibas: Your Honor, our primary position is that because reliance isn't necessary all of them benefit from it, because they all have settled expectations.
Elena Kagan: How do you explain St. Cyr if reliance isn't necessary? St. Cyr is all about reliance.
Stephanos Bibas: Yes. And at the end of this Court's opinion the Court said that the presence of this reliance made the retroactive effect especially obvious and sincere -- especially obvious and severe in St. Cyr. That did not purport to overrule holdings in Landgraf and Hughes Aircraft where there had been no legally cognizable reliance. So St. Cyr is an easy case because of the guilty plea because of the reliance. But Landgraf and Hughes Aircraft didn't involve any reliance and there was still retroactivity because the settled expectations were disrupted because there were new consequences attached to pre-enacted conduct. So regardless of whether there is reliance, there are settled expectations that are upset by a law whose function or point is to punish and deter misconduct based on past wrongs. My client--
Antonin Scalia: We are trying to figure out what Congress intended, right. We're not talking about constitutionality. We are talking about a rule that it's presumed that statutes are only prospective, right? And your argument is the reasonable expectation of Congress when they passed this was that it would only apply to two people who, what, committed the crime or were convicted after the statute passed? Just as a matter of statutory interpretation?
Stephanos Bibas: --Yes, Your Honor.
Antonin Scalia: Okay.
Stephanos Bibas: That is the background default rule against which Congress legislates. And in laws such as IIRIRA and SORNA and elsewhere, Congress spells out what it wants to apply to pre-enactment offenses to pre-enactment conduct. That's the defeasible civil retroactivity rule that can reach more broadly than the ex post facto jurisprudence--
Elena Kagan: Well, do you have any case in which a court has deemed its statute retroactive even though it wasn't triggered until the party took some further action? Is there any case out there either from this Court or from another court where we've said it's retroactive even though it depends upon a future event.
Stephanos Bibas: --Yes, Your Honor. St. Cyr depended on applying for discretionary relief in the future. He didn't have to. Cummings depending on trying to teach or preach or hold office. Ex parte Garland depended on trying to practice law in the future. Those are all disabilities taking away a future ability based on a past wrong. That's what the disability category has to mean if it's to remain meaningful. And the government's approach would gut Justice Story's fourth category. If there are no further questions, I would like to reserve the balance of my time.
John G. Roberts, Jr.: --Thank you, Counsel. Mr. Miller.
Eric D. Miller: Mr. Chief Justice, and may it please the Court: As the discussion so far this morning reveals, the Court's retroactivity analysis takes account of a number of different factors, but the one that is most significant and indeed in this case virtually dispositive is that the application of Section 1101(a)(13) to Petitioner was triggered only because he engaged in voluntary conduct that postdated the enactment of the statute.
Elena Kagan: What do you think the trigger to be? Because in your brief you kept on talking about the trigger being the trip. And I would have thought that you would have talked more about the activity being the attempt to enter the country.
Eric D. Miller: That's -- I mean they are closely connected together in time and they both -- but they both postdate the enactment of the statute. But -- well, the thing that is being regulated by section 1101(a)(13) is the entry of aliens into the United States. The statute sets out a comprehensive scheme for determining when an alien arriving at the border seeking to come into the United States should be regarded as seeking an admission. So that's conduct that takes place in the future. Part A of 1101(a)(13) sets out the general definition of admission and then (c) sets out a number of exceptions. And so taken together they are part of a comprehensive effort to codify Fleuti in some respects and in particular Romanette (ii), the 180-day provision is actually a fairly generous codification of Fleuti probably extending beyond what would have been regarded as a brief trip under Fleuti.
John G. Roberts, Jr.: Counsel, I have to -- I just don't understand this statute. This is somebody we would not allow into the country. And yet the only thing we say is: You can't leave. I just don't understand how that -- how that works.
Eric D. Miller: I think there are two points to be made about that. And the first is that that is a feature of the statute at large. That exists even with respect to post enactment criminal convictions.
John G. Roberts, Jr.: Right.
Eric D. Miller: And the second, I think to understand it, it's helpful to look at the history. The distinction between grounds of inadmissibility and grounds of deportability goes back all the way back to the 1917 Act. In that statute, a single crime of moral turpitude was the basis for inadmissibility but was generally not a basis for deportability unless it had a-one-year sentence and was committed within five years--
John G. Roberts, Jr.: Well, I know, and I understand that there is a limitation on actually deporting the person. But here I think the one thing you want the person to do is leave. Maybe for a particular event, but maybe he will decide to stay in Greece if once he's there for the -- but it seems very odd to say: We are going to show you how much we don't want you here; we are not going to let you leave.
Eric D. Miller: --I think what the -- history shows that it's the crossing the border that has always been regarded as a legally significant event. This Court's cases recognizing--
Ruth Bader Ginsburg: It wasn't before. We -- I think we have held that an immigration lawyer is obliged to tell a defendant facing a criminal charge what the legal consequences -- what the immigration consequences will be. And here, suppose before the -- at the time of the plea in this case, the attorney had said, once you've served your time, you will be able to take brief casual trips. That would have been after his advice, right? Before IIRIRA, I mean.
Eric D. Miller: --Well, I think, I think the most important point about the consequence of the plea is that as an immediate result of the plea under pre-IIRIRA law, so at the time he pleaded guilty in 1984, he made himself inadmissible. So that is not anything that has changed. So he knew that he was--
Ruth Bader Ginsburg: I meant to use "lawyer" talking to his client, and the client wants to know: Before I enter this plea, what will be the consequence for me? And the question that is asked is: Will I be able to visit my mother in Greece? What should the lawyer -- what should the lawyer at that time have answered?
Eric D. Miller: --I think the lawyer should have said: By pleading guilty, you are making yourself inadmissible to the United States. Under--
Stephen G. Breyer: Rosenberg would have been the law. Fleuti. And the answer to the question would have been: Yes, you can make trips abroad, wouldn't it?
Eric D. Miller: --That's right. And I think you might also have said that under a current law, you will not be regarded as seeking an admission if you take a brief, casual, and innocent trip. But the change in the law--
Elena Kagan: Well, that's what is going to be important to the person, right? It's not inadmissible and all the legal terms. It's: Am I going to be able to make short trips to visit my mother? Yes, you are going to be able to make short trips to visit your mother. And then you wake up the next morning, and Congress has passed a statute, and now you are not able to take short trips to visit your mother. So something very real has happened to the life of this person.
Eric D. Miller: --That's right. I mean, and there is no question but that there is a serious consequence as a result of the change in the law. But the Court has made clear in Landgraf and in a number of other cases that even uncontroversially prospective statutes can impose burdens.
Stephen G. Breyer: That's true, but in St. Cyr, as I read it, on pages 322 and 23, the Court focused directly, not on the crime point of time, but the time of the guilty plea. And what the Court says there is that a person who is thinking of pleading guilty might well have taken into account the fact that he could ask the Attorney General later when he's about to be deported to exercise discretion in his favor. So that's -- as I read those pages, you can say, I'm not reading them correctly, but that's how I read them. And then, having read them that way, I thought the question in this case is whether the person who is sitting at the table and deciding whether to plead guilty or not is likely to think, well, if I plead guilty, I can always ask for discretion. That's St. Cyr. Well, if I plead guilty, I can still visit my aging parents and grandparents, a matter that could be of importance to some people, as opposed to whether I will never see them again. Now, that seems to be the question. Is the second as likely to be in the person's mind as the first? And to tell you the truth, I don't know the answer. I mean, maybe it would be. There isn't that much chance of getting discretion. It might be important to some people to visit their aging parents and grandparents. So, go ahead. Answer the question. Is the one more important than the other? And if not, why not?
Eric D. Miller: I think you have correctly described the reasoning of the Court in St. Cyr, and I think that that reasoning highlights two ways in which this case is significantly different. And the first is that in St. Cyr it was the guilty plea, the conviction that was legally significant under the provision is of IIRIRA at issue there, and the Court emphasized that a guilty plea is a quid pro quo, it has to be knowing and voluntary. The Court cited Santabello against New York, a due process about guilty pleas. And then the one difference in this case is that the legally significant event here--
Stephen G. Breyer: No, but I -- isn't my question the key question? Now you can answer that no. But I, I mean, I suppose you could prove that the only thing that mattered to LPRs who plead guilty, the only thing that mattered was visiting their parents and grandparents, a matter I doubt; but, you can say, even on that situation, it would make no difference. Or you could say, I think the one is as important as the other. Or you could say they are not. I just want to get your full answer, your whole answer to my question.
Eric D. Miller: --The conclusion to the first part of the answer is that it wouldn't make a difference because what matters here is not the guilty plea, what triggers the application of 1101(a)(13)(C) is the underlying criminal conduct.
Elena Kagan: You are quite right, Mr. Miller, as a formal matter that that is true, that that's the words of the statute. But how many times has the Department of Homeland Security tried to declare a person inadmissible on the basis of the commission of a crime without putting into evidence either a conviction or a guilty plea?
Eric D. Miller: I don't have any--
Elena Kagan: I can't imagine that it's like more than on one, you know, five fingers of your hand. I mean, that's the way people prove crimes in this area, isn't it, by convictions or guilty pleas.
Eric D. Miller: --Well, I would say that -- this is a statue--
Elena Kagan: Or after trial or convictions by guilty pleas.
Eric D. Miller: --The statute is being applied by, in the first instance, by customs officers at the airport or at the land border crossing. They have access to a number of databases which include not only records of convictions but also things like arrest warrants. And an arrest warrant by itself would not, not be enough to show that a person had in fact committed an offense, but it might trigger some further inquiry from the customs officer that would lead to finding out more information or perhaps getting an admission from the person.
Elena Kagan: If, as a fact of the matter, the way the commission of crime is proved in this area is through showing a conviction, does your distinction stand up at all?
Eric D. Miller: I mean, there is still, I think, a significant formal distinction and then there is also another important distinction from St. Cyr which is that that was the case where as a result of the guilty plea plus the change in law, the person there faced immediate deportability with no prospect of discretionary relief. And the Court said that there is a clear difference for purposes of the retroactivity analysis between the possibility of deportability and a certainty of deportation. Here, not only is he not deportable, but there is no immediate consequence for him at all. The statute only has any effect on him when he engages in the post enactment travel. And I think--
Ruth Bader Ginsburg: What about the characterization? It would seem to me to make common sense, yes, the trigger is that he has gone abroad and is returning. But the target, they say, was the crime. That's why the law -- the law really doesn't care about the travel back and forth; what it cares about is this person was convicted of a crime.
Eric D. Miller: --Right. I don't think that's correct, Your Honor. And I think that highlights one of the distinctions between this case and Cummings against Missouri and ex parte Garland. In those cases, you had statutes that were nominally prospective in application, but the Court actually said that we think that what is really happening here is the statutes are imposing punishment for completed acts. To the extent there was any doubt in those cases themselves, this Court discussed them both in Harisiades v. Shaughnessy and said that it viewed them as cases about punishment.
Sonia Sotomayor: But isn't that the case here, meaning -- it goes back to the Chief Justice's question, which is, what they're trying to do is punish those individuals, those LPRs who have committed this kind of crime, by not letting them travel or come back in. That's really what their argument is, is, you are imposing a punishment, a disability for having committed the crime. You're not imposing a disability merely for the act of traveling.
Eric D. Miller: I mean, I think when you look at the statute as a whole, you see that it's a -- the comprehensive regulation of crossing the border, which has always been regarded as a legally significant event. There are six subparts to 1101(a)(13)(c). Five of them have nothing to do with past conduct. They're about the -- the nature of the trip and -- and what the alien is doing as he's coming in. And then you have -- have this one, which is of a piece with the long history of drawing a distinction between inadmissibility and deportability. And I think it recognizes--
John G. Roberts, Jr.: What -- what is the -- what is the policy underlying the rule that doesn't allow somebody who has lawful status here to go to his grandmother's funeral--
Eric D. Miller: --I -- I--
John G. Roberts, Jr.: --and come back? It's going to take four days. He goes, he comes back. What policy supports prohibiting that travel?
Eric D. Miller: --I mean, I -- I think it reflects a -- a judgment on the part of Congress over many, many years that it is one thing to say to an alien, all right, we're not going to go and try and find you and take you and kick you out of the country. It is quite another to say you may freely cross our borders -- even after having left, you may come back, and we're -- without any inquiry.
John G. Roberts, Jr.: Okay. They're two different things. But I don't know that you've articulated what the policy is to prevent -- prohibit somebody from doing that.
Eric D. Miller: I mean -- other than, you know, referring you to -- to the history and to -- to the idea that has been reflected -- this Court has recognizes that control over the border is a core sovereign prerogative that lies at the heart of Congress's immigration power. And I think--
Antonin Scalia: Well, I suppose you could say that there's a -- a likelihood of quite inequitable enforcement if indeed you adopt a position we're going to pick up all of these people and send them away. That's not going to happen. It'll -- it'll be hit and miss. And on the other hand, you can enforce it rigorously and equitably upon everyone if you only forbid reentry to those people who want to come back in, and they'll have to, you know, give their names to Immigration, and you can check on -- on this status. That seems to me a sensible reason.
Eric D. Miller: --That's right. And--
Stephen G. Breyer: So why do you -- as I read the statute, it isn't even clear whether it overrules Rosenberg v. Fleuti. I mean, they talk about admission, but admission after all could be, we have an exception for the 4-day trip. That's what the Court said effectively in Rosenberg v. Fleuti. So Congress certainly wasn't clear on what policy they're following. I would have thought that. You can disagree with that. But I -- but the part that's still gnawing at me: 95 percent of the people plead guilty. All right. You know. Everybody pleads guilty. Or about. And now the -- the consequence that this ex post enacts is he can't take the 4-day trip. And you keep saying well, a 4-day trip requires action on a person's part. Right. Of course it does. So why does that matter? I mean, the fact is he can't take the 4-day trip. A 4-day trip requires action. You have to buy a trip -- ticket. You have to get on a plane. So--
Eric D. Miller: --I think -- if I could just first address the -- the question of whether the statute in fact ever gets Fleuti, and just to be clear on that -- the question presented assumes that it does. The Petitioner isn't challenging that. And the board in the Collado-Munoz decision has explained why the -- the statute in fact does have that effect. And I -- I think the significance of this post-enactment conduct, the significance of the trip, is illustrated there by this Court's decision in Fernandez-Vargas, which -- which made clear that when you have -- when the application of the statute is within the control of the person to whom it's being applied, because he has to do something after it comes into effect -- there, it was choosing to remain in the United States and becoming subject to the reinstatement of a prior order of removal -- here, it's taking the travel. But that goes a long way towards establishing that it -- it doesn't have a retroactive effect, that it's regulating future conduct. Another--
Sonia Sotomayor: Prior to the Fernandez case, the illegal act remained. And so that was within your control. But the -- you can't undo an illegal act that you've done to be able to travel. The act is now part of your background. And so there's nothing in your control to change that act once the statute has passed.
Eric D. Miller: --Well--
Sonia Sotomayor: So you're -- you're carrying that around as a disability.
Eric D. Miller: --In Fernandez-Vargas, the -- the conduct that subjected the alien to the application of this -- this procedural -- disadvantageous removal procedure -- was remaining in the United States. And it's true that that conduct was unlawful, but for purposes of the retroactivity analysis, the Court didn't focus on whether it was lawful or unlawful. What matters is that it was conduct that was in the future, that that was after the statute was enacted. And so here, although the -- the trip is not unlawful in that sense, it is future conduct, and here as in Fernandez-Vargas, there is ample warning -- which was another point the Court emphasized in that case -- ample warning that the statute would be applied to people who engaged in that conduct. I -- I do want to address your--
Elena Kagan: It -- it can't be right that it's "any" future conduct. If -- if there's a trigger mechanism that is entirely random, you know, it's -- you can be deported if you've committed a crime of moral turpitude in the past, but not until you go to the movies on a Saturday. Surely that would not change the analysis.
Eric D. Miller: --I think that's right, Your Honor, and I think the -- the reason it wouldn't -- is reflected in some of this Court's -- in the ex post facto analysis. If you have a statute that for example makes it a crime to have engaged in certain conduct in the past, and then, you know, something -- some commonplace utterly trivial activity in the future, I think a court looking at that would say, this is not -- although it is nominally prospective -- this is really a statute aimed at punishing the prior conduct.
Antonin Scalia: No. I -- I don't know -- I think it would be prospective and unconstitutional because it's irrational. I mean, not -- not everything that's unconstitutional is unconstitutional -- not everything that is unconstitutional is not prospective, it seems to -- or do you think that's so? If it's -- if it is unconstitutional in violation of the ex post facto law, the statute has to be pro -- has to be prospective. I'm sorry, has to be assumed not to cover that prior conduct. Is that right?
Eric D. Miller: I mean, I think -- the hypothetical statute I was describing I think would violate the ex post facto clause under the sort of analysis that this Court used in Smith v. Doe.
Antonin Scalia: Okay. And if it does, it automatically has to be interpreted not to cover that, by reason of the presumption that--
Eric D. Miller: You mean -- if you mean a parallel statute in the civil context.
Antonin Scalia: --Yes, yes.
Eric D. Miller: I -- I -- I think that's the best reading of -- of Landgraf. And I think under the analysis suggested in your concurring opinion in Landgraf, I think you'd want to look at that statute and say this is really a statute that's aimed at regulating the -- the past conduct, and that -- that has a retroactive effect. So -- to -- to finish that thought, I think I would just say that there is a narrow category of cases where you have what is informed, a prospective regulation that's really aimed at -- aimed at burdening or punishing a past act. But this is not that.
Elena Kagan: And how do we separate those two? How do we decide that this is not that, and that it's instead something else, that it's a regulation of future conduct?
Eric D. Miller: I -- in the criminal context, the Court has used the analysis of Kennedy v. Mendoza-Martinez to figure out whether a statute is -- is imposing punishment for past conduct. And that looks at a number of factors. And the most important factor under that test, the Court has said, is whether the statute appears to be related to a legitimate prospective regulatory purpose. And so that's why, for example, statutes like 922(g), the felon in possession statute, which was, I would point out, amended back in 1996 to add misdemeanor crimes of domestic violence which had not previously been something that would subject one to a firearms disability. That was added. Every court of appeals that has considered the question has held that it doesn't violate the ex post facto clause, and I think implicitly has held that it does in fact reach that conduct.
Antonin Scalia: Even -- even if you had pleaded guilty to spousal abuse?
Eric D. Miller: I'm not aware of any cases--
Antonin Scalia: Yes.
Eric D. Miller: --specifically addressing that question, but -- but yes, because there you have a statute that is regulating future conduct, it only applies to somebody who engages in the future conduct. The sex offender registration laws are another example of -- this Court has upheld that kind of law obviously imposes a very significant burden of people on the basis of prior conduct, but the fact that there is some burden by itself does not mean that the statute is retroactive. Nor does it mean that it is appropriately viewed as imposing a disability. I mean I think that the Court in Landgraf quoted Justice Story's formulation of a disability as referring to statutes that impose a disability in respect to transactions that are already passed. So it is not enough that there used to be something that you could do and now in the future you are not going to be able to do that. That is not a disability in the relevant sense, and if it were the Court would have a very difficult line-drawing problem to figure out why it is that statutes like 922(g) are okay, or sex offender administration laws, or any number of--
Stephen G. Breyer: --That's -- that's why I think the Chief Justice's question and the ambiguity of the statute are relevant. Like with SORNA you would apply it backwards, because that's a pretty clear intent. I don't know about you know, like, "three times and you're out" statutes, et cetera. But -- but here you have a disability on the ones -- the disadvantage to the person pleading guilty, the problem on the one hand, and on the other hand you have the policy that with a -- fill in the blank -- with a statute that doesn't talk about it, but simply uses a new definition of admission or admissibility. That's -- do you want to say something about that.
Eric D. Miller: --I think, if you are -- if you're -- if you are asking whether Congress has specifically addressed the temporal scope of the statute, we -- we -- we acknowledge under St. Cyr that it hasn't. And so that's why we're at--
Stephen G. Breyer: More than that -- I'm ignoring -- more than that, I'm saying what's the policy on the other side? The policy that favors the retroactivity despite the fact that the person might not have pleaded guilty? And that's why I was interested in the Chief Justice's question and also the ambiguity of the language in the statute that they used.
Eric D. Miller: --I think that the -- the policy is Congress was trying to redefine -- they were replacing the old term of entry and replacing it with a new concept of admission, they're trying to redefine a comprehensive scheme for treatment of aliens arriving at the border. And you have to look at all the parts of it together as a scheme that was to be applied going forward, when people arrived at the border in the future, after the enactment of the statute. If there are no further questions--
John G. Roberts, Jr.: Could you go over again for me your distinction of St. Cyr?
Eric D. Miller: --I think it's twofold, Your Honor. The first is that in St. Cyr the legally significant event was the conviction, the guilty plea. Here the guilty plea is significant because it makes Petitioner inadmissible but that was true under current law.
John G. Roberts, Jr.: You don't argue that -- that the significance of what the individual is giving up makes a difference?
Eric D. Miller: That's our second point, is that -- St. Cyr said there is a big difference between immediate deportability and the potential--
John G. Roberts, Jr.: Is there a difference in terms of what they face if they don't plead guilty? I've always had difficulty with St. Cyr on the notion that say, someone pleads -- is facing, you know, 10 years, and they plead -- plead guilty to 2 years. The -- the reason they did that was to, you know, avoid one of these -- positions. It seems to me it is to avoid 8 years.
Eric D. Miller: --I -- I--
John G. Roberts, Jr.: And I just wonder if the relative significance of what is at issue under the immigration law is something we can take into account, or if St. Cyr prohibits that?
Eric D. Miller: --No, I think it is certainly appropriate to take into account, that however -- however significant the application of Fleuti might be to aliens, it's on a different order of significance from--
Elena Kagan: Well, Mr. Miller, the Solicitor General actually represented to us -- in the Judulang argument used that as an example, the Fleuti case, as something that people doing pleas did think about and did rely upon.
Eric D. Miller: --Well, I -- I think -- we don't question that that's something that people might have -- have been aware of, and have been thinking about, but it not something that was bargained for in the plea agreement, because it's not something that is affected by the plea agreement. The statute here is triggered by the post-enactment conduct of entering the country, but also by the -- the pre-enactment conduct of committing the crime. And as Petitioner has acknowledged, there isn't any reliance in the state of immigration law when you choose to commit the crime. So I think that's -- that's a difference from the scenario that was addressed in Judulang.
John G. Roberts, Jr.: Thank you, Mr. Miller. Mr. Bibas, you have 6 minutes remaining.
Stephanos Bibas: Thank you, Your Honor. I would like to make five points. The first one is the statute is poorly tailored to any protective or forward-looking effect. As the Court has noted, its perverse effect is to discourage people from leaving the country, to keep them in. So any idea that the purpose is to get them out doesn't square with the way the statute is written. As Justice Ginsburg noted, while the post-IIRIRA innocent travel may be the trigger here, the obvious target is the pre-IIRIRA offense. The statute is tied to misconduct. The natural inference of making this conduct not just a piece of evidence but a prerequisite is that it is the misconduct that is being penalized. Second, the impact we suggest is the relevant test. The impact is a penalty. It is a disability based on a past act that Mr. Vartelas is now helpless to undo. That is all that is required under Landgraf. If Congress thinks it important, it can expressly require retroactivity. But it hasn't done so. Third, let me make clear that we have alternative theories here. Reliance is something that makes the case worse. It is something that exacerbates the problem, makes it obvious and severe. And our amici, the NACDL brief, points out very movingly how important these kinds of considerations are in immigrants' decisions to plead guilty. Here for example, my client received a 4-month discount off his sentencing range. It's entirely plausible to believe that immigrants in his situation might value the ability to stay in the same country with their 4-year-old and 2-year-old child as much as 4 months in jail. But our broader theory is that the violation of settled expectations is sufficient whether or not there is reliance. The settled expectations that one has of planning one's life in this country and yet having relatives abroad one will tend to or care for their business, etcetera, that is sufficient. Just as in Landgraf and Hughes Aircraft Company there were no legally cognizable reliance interests in discriminating or in submitting false claims, but changing the penalty is enough. Fourth, this Court's decision in St. Cyr I believe strongly helps our case. The first reason is that it imposed a disability, a disability on filing in the future for discretionary relief, but as a practical matter it is burdening past conduct. Secondly, St. Cyr didn't purport to change the holdings in Landgraf and Hughes Aircraft Company that those are other ways of showing impermissible retroactivity. The logic in St. Cyr is ineluctable that because you are burdening a decision, a decision that, as the Court and the amici in St. Cyr noted, matters greatly and factors into the plea bargaining calculus, that the retroactivity is especially obvious and severe. And let me note that St. Cyr was decided under this same statute, a privilege, not a right, a privilege that Congress can abrogate at any time. That did not influence this Court's holding at all. The right-privilege distinction is dead in this area of law. If there is a privilege under IIRIRA to apply for discretionary relief, there is a privilege to not be subject to the disability on one's traveling and returning. Finally, let me talk about the criminal-civil line. My my brother here introduced Smith v. Doe and mentioned some of the sex offender cases. I've explained why the criminal cases in ex post facto are different, but let me go into some more detail. The Court is well familiar with Smith v. Doe. That was a civil case that Doe attempted to turn into a criminal case under the very demanding standard in Kennedy v. Mendoza. But that's a very uphill fight. As the Court's opinion recognized, the court must be very deferential before turning something facially civil into criminal because then it's categorically forbidden and it comes with the criminal procedure protections in the Bill of Rights. That's not what we are doing now. We are not trying to say this law is forbidden. Smith v. Doe involved a law where the court's opinion said on its face: The legislature made it retroactive; it says it's retroactive. Federal law SORNA is expressly retroactive in section 113(d). IIRIRA is expressly retroactive. That's a different inquiry, where you're asking does the Ex Post Facto Clause forbids something that is expressly retroactive, does Mendoza-Martinez turn it into a criminal case? Versus here, where it's not retroactive. All Congress has to do is spell it out. If this Court adheres to its previous jurisprudence, the guidance to the drafters across the street is clear: Just draft the statutes the way you have always been doing it, say before, on, or after effective date.
Samuel A. Alito, Jr.: Do you think we have the authority to tell Congress how to draft its laws? I thought what we were doing was trying to infer what they intended.
Stephanos Bibas: Yes, Your Honor.
Samuel A. Alito, Jr.: Do we send them a drafting manual? Now, you can do this, but you can only do it if you do it -- if you follow the steps that we've prescribed. And we've said this over and over. It seems to be completely unfounded.
Stephanos Bibas: Your Honor, this Court has said that it's important to adhere to its traditional tools of statutory construction because it's a settled background rule against which Congress legislates, which it is aware of.
Antonin Scalia: You think Landgraf is clear and settled, and you are over there in Congress and you say: Boy, I know how this statute is going to come out under Landgraf.
Stephanos Bibas: Yes, Your Honor.
Antonin Scalia: Better than I am.
Stephanos Bibas: Let me explain. This Court decided Landgraf 2 decades ago. A few years after Landgraf, Congress passed IIRIRA in 1996. IIRIRA contains express retroactivity provisions that go hand in glove with the Landgraf presumption. And then Congress passed SORNA, to which my brother alludes. SORNA in 2005 likewise in Section 113(d) says: Yes, this sex offender registration shall apply, the Attorney General can apply it to people with pre-SORNA convictions. Congress understands the Landgraf presumption. In those statutes and others it has legislated against it. It can continue to do it because this Court should continue to use its traditional tools--
Antonin Scalia: Well, that can be explained because Congress understands that, who knows whether it's going to be held to be retroactive or not; if you surely want it to apply you better say so. If that's the rule you want us to adopt, that's okay.
Stephanos Bibas: --Yes, Your Honor, and a clear statement rule has that virtue, as I believe Your Honor is well aware. For all those reasons, we ask this Court to reverse the judgment below and remand.
John G. Roberts, Jr.: Thank you, counsel, counsel. The case is submitted.