Ames Moot Court Competition 2019

Good evening good evening good evening my name is Lewis Murray and I'm the vice president of Ames and welcome to the Ames moot court final round presiding over this year's competition or the Honorable Merrick garland chief judge United States Court of Appeals District of Columbia Circuit the Honorable Michelle friedlin of the United States Court of Appeals for the Ninth Circuit and the Honorable a Multiplier of the United States Court of Appeals for the Sixth Circuit this evenings case was written by Elizabeth pearl ogre and to gender sing today's case poses two key questions one whether

the Indian Child Welfare Act in the final rule implementing the statute violate equal protection to whether the Indian Child Welfare Act in the final rule implementing the statute violate the anti-commandeering component of the Tenth Amendment representing the Petitioner the Janet wood Reno memorial team Kevin chin Michaela Gilbert Lurie or list Eliza green Kacie Jackie al Kelly or list and Carolyn Lee representing the respondent the Patricia Roberts Harris memorial team Alecia aveiro Koski Charlotte you - Melanie fonts or list kelsey Fraser or list Hillary herd and Kate Piper please silence all phones and electronic devices and

please no photos during the competition finally please Refrain from leaving the courtroom during arguments thank you so much for your attendance and enjoy the competition [Applause] I'll rise the Honorable the Chief Justice and the associate justices of the Supreme Court of the United States oh yay oh yay oh yay all persons having business before the Honorable the Supreme Court of the United States or admonished to draw near and give their Attention for the court is now sitting god save the United States and this honorable Court okay I'll call the first and apparently only case for

the day number 19 - 619 United States Department of the Interior vs Bryce Caldwell at all attorneys for the petitioner mr. Chief Justice and may it please the court my name is Michaela Gilbert Lurie and I along with my co-counsel mr. al Kelly represent the United States Department Of the Interior I will be addressing the equal protection issue and mr. Kelly will be addressing the anti-commandeering issue we would like to reserve three minutes for rebuttal the federal government's relationship with Indian tribes is premise on an understanding enshrined in the Constitution that Indian tribes constitute a

political class this understanding serves as the principle underlying all federal legislation Governing Indian Affairs at issue today is one such piece of legislation the Indian Child Welfare Act or equi this court reviews legislation like equi that it's directed at those who are politically affiliated with federally recognized tribes under the standard established in Morton V Mancari the Mancari test uphold such legislation as long as it can be tied rationally to Congress's unique obligation toward Indians It was satisfies the Mancari test it is directed only at those who are politically affiliated with federally recognized tribes and is

geniux I'm sorry to interrupt you but can you explain to us what they mean by political in that case absolutely justice the par so a political affiliation with a federally recognized tribe is what this Court has always understood and what is enshrined in the Constitution as a relationship with a Political entity that has a sovereign to Sovereign relationship with the federal government and Indian tribes at least those are those which are federally recognized by the United States government do have this sovereign to Sovereign relationship and equi contains two definitions of an Indian child there are

two ways that a child can qualify as an Indian child for the purposes of equi first a child can qualify as an Indian child by being an Enrolled member of a federally recognized tribe and this definition falls squarely within the Mancari definition and respondents don't contest that this definition of Indian child Falls Brown is right the second part that's where they take issue yes just as the fire if there is a problem it would be with the second definition and the second definition allows children who are the biological children of enrolled tribe members who are

themselves Eligible for tribal enrollment to be covered by equi but this definition does not change the fact that Mancari is the appropriate standard under which to review eggwin but this child in this case was not a member of the tribe and hadn't even had contact with the parent who was a member of a tribe so how is that a political connection instead of a blood connection at that point the only connection is true through the blood of the father right well respectfully Justice Freeland we would disagree with that characterization c.j in this case has a

political affiliation with the akava nation and that's because CJ is the child of an enrolled member of the akava Nation and it's useful to think about membership in a federally recognized tribe as analogous to citizenship and in much the same way that the United States government grants to grant citizenship to the children of United States Citizens who are born abroad federally recognized tribes impute on to the children of their members a political affiliation with that tribe and it's that political affiliation sorry I was just gonna ask how do you get to another tribe because it

was actually a different tribe that expressed an interest in this child and I have an easier time seeing what the rationale could be for helping the child become a member of its his or her parents tribe Rather than some other tribe certainly so the fact that equi allows children to placed with members of another tribe speaks to Congress's concern when they were passing ago in 1978 that children were being removed not only from their tribes and families but from Indian culture more generally and it was this concern how is that though political rather than racial

that is the child has no connection to the the other tribe I understand the argument you're making About the tribe that his father's but for the other tribe there is no connection why why is this political well your honor because CJ or a given child has a political affiliation with a tribe that child thus has a political affiliation to Indian culture and Congress sought to correct the devastating consequences in the psychological harm to change the United States relationship with Indian tribes individually or with the with any one Who that is the political relationship well your

honor it's a political affiliation with both tribes and with children or rather with members of tribes so it's both an individual and a collective political affiliation but it's not a political affiliation with all who identify as Indian and that's because membership in a federally recognized tribe is distinct from identifying as an Indian or a Native American that to don't map on to one Another there are 5.2 million people in this country at least according to the most recent recent census that identify as American Indian or Alaskan native but they're not all of the same culture

are they so you were just starting to talk about the legislative history and you talk about it in your brief as well that Congress was trying to remedy the harms of removing Indian children from quote Indian society but is there any such Thing as Indian society or is that just a stereotype it seems like there are many different tribes with many different cultures just as free than it's true tribes do have individual cultures and they are distinct political entities but we would we would suggest that this court looked to the amicus brief filed just this

year in the Fifth Circuit the three and 25 tribes federally recognized tribes who file an amicus brief in Brackeen V Bernhardt who all evinced their understanding that equi does serve to protect Indian children and tribes even with this third placement that allows children to be placed in tribe even if it's not the tribe they were born into and that's because this third preference allows for children to be placed with other Indian families if for example doesn't that change you when you add in the third preference any tribe aren't you eviscerating the political Distinction and really

making it a racial distinction I don't think so justice the fire and that's because these children only have a political affiliation with Indian culture at all because they are the children of members of tribes and those members have a political affiliation with the tribe and this Court has always understood this relationship to be a political one and starting with men carryin all the way through until 2005 with rice this Court Has always understood that to be a fundamentally political class situation can the tribes define who's who their members are any way they want yes just

as the part of this court what if they were racially discriminatory in defining the definition of the tribal members saying anyone with even one drop of Asian or black blood can't be a member would then would you still say it was political in nature and okay well two points on that justice the part first Yes tribes according to this court in Santa Clara Pueblo V Martinez are authorized to have complete authority to define their own membership but the second point is that Congress need not recognize all of these tribes so if a tribe did define

its membership in a way that was anathema to Congress's understanding of what a tribe should be or at least what the government should recognize as a tribe but if Congress recognized them you'd say that Then we would have to allow racially discriminatory tribes no your honor that would present a much closer question and would be the kind of classification that this court might review under strict scrutiny but that's not the case we have before us today so I'm sorry to take you on this tangent but explain why then it would be strict scrutiny and a

non-political classification we can look it is what you're saying we can look at how tribes Define their members to decide if it's a political classification or a racial one yes justice the Pyrus a tribe did define its membership in a racial way then that could be the kind of classification even though it would be a political classification if it had a racial element as well it would be a much closer question of the kind that this court would review understorms many tribes have some blood requirement so they do have a racial part of the Definition

of their tribal membership justice Freedland many tribes have a blood-quantum requirement and the two tribes at issue today the accommodations for that we need Elizabeth halls rather than Oliver Wendell Holmes what do you mean by a blood-quantum and what what is the test that theorists evelopment for this mr. Chief Justice we would not need to use and thankfully we would not need to use any sort of fairness technology here and that's Because blood-quantum doesn't refer to any sort of DNA test or any sort of blood test at all it merely refers to the number of

generations remove that an individual is from someone whose name is listed on an original tribal role it has no blood requirement even though it might sound like a signifier of race this Court is always understood blood-quantum so even if you're right that it's political and we apply them on carry it Still has to be rational so what's rational about sending a child who lives in Ames for example to Washington State to a tribe of which the child could never be a member over someone closer someone who has more relationships with the tribe how is this

rational even if we agree that rational basis is to test well your honor in creating federal minimum standards for the removal of Indian children from their families equi ensures that Children do remain and enmeshed in their tribal culture it's a different truck the hypothesis is it's not their tribal culture it's a completely different tribe across the country and they cannot become ever become a member of that tribe because they have no ancestral ancestors in the tribe certainly justice Chief mr. chief justice in this case the child would still have a political connection to That tribe

and I get the political point now I'm moving on to how is it rational where people just gets you to what the test is right now we have to see whether this is a reasonable thing for Congress to have done it's rational and so far is that it allows for children to be protected in their I was draw the question [Applause] [Music] would you like a brief recess all right I direct the bailiff to give her her time back would you mind repeating the question I don't know I think you've already answered it perfectly so

maybe I could ask a version of the question which is how is it rational to send a child to a different tribe so one that neither parent had a relationship with even if we consider it a political type of relationship why would there be a rationality in sending a child to a different tribe certainly So a child who has a political connection with one tribe and would necessarily be a part of this larger culture that this court in Mancari and in Holyfield subsequently understood was one of the reasons that it will was passed and Holyfield

this Court made clear that Congress sought in part to allow for children to remain a part of their tribal culture and in so understanding this Court has acknowledged what Congress made clear in Its 1978 report accompanying the passage of iqua which is that children have a children suffer psychological harm when they're removed not only from their own tribe but from Indian culture more generally and while respondents might take Whitney wouldn't they suffer the same way being moved across the country versus right next to their tribe in a familiar area and especially if they had never

been a part of the tribe perhaps justice the PAR but Congress determined That it was in the child in Indian child's best interest to remain in the tribal community do we have to defer to that finding no justice the PAR so this Court made clear in United States versus Sioux Nation that this court need not take Congress at its word that its legislation serves the best interest of tribes or advances their interests however this court can look to external evidence to confirm that this does in fact serve Congress's interests and or Rather that this doesn't

serve serve tribes interests and one example of this is as recently as 2016 the Bureau of Indian Affairs promulgated a rule that implemented it that's the final rule and in that rule it events the intent of at least the leading government agency with respect to Indian Affairs that it what does in fact serve the purpose that it was intended to serve and that Congress was correct that these three preferences are Rational to the state Family Court though thought that this child his best interest was to stay with the Caldwells right not exactly justice friedlin so

the fam the Family Court in this case denied the Caldwells adoption petition in order to but in order to comply with it WA right I thought the premise was that otherwise they would have the court would have given the child so that the Caldwells it's not clear your honor and I want to hew closely to the record on This issue but it's not clear that the Family Court did determine that instead they determined that the Caldwells were not in any way not fit to be parents but there was a burden of proof of question well

certainly satisfied the burden of exactly justice chief mr. chief justice what the Family Court did determine was that the Caldwells did not present clear and compelling evidence that the Caldwells submitted sufficient justification to deviate for good cause And so it's not clear that they thought the Caldwells were in fact the appropriate parents but rather that following Equus dictates was more appropriate in this case which so if the Family Court had said the best interest that the child was to stay with the Caldwells do you think that that would have necessarily been erroneous like is your

argument that it's actually in the child's best interest to be with a tribe an argument that would say really a Court couldn't reasonably find that no justice friedlin so this is where the good cause exception is particularly important and it ensures that equal is really as narrow as it can be in providing the protection to Indian children parents and tribes and the good cause provision allows for courts to deviate from Equus provisions for good cause and the Bureau of Indian Affairs and its recent rule promulgated for non exhaustive factors that courts are Authorized to consider

in determining good cause so if the lower court hadn't to determine that there was sufficient evidence cause include it's too far away it's that another tribe but it's too far away or it's a tribe that they can't be a member of or anything like that well Chief Justice Garland that's not one of the four factors that is explicitly listed those four factors include the opinion of a biological parent the opinion of the child if he or she is Sufficient is of sufficient age and capacity to have her opinion taken into account the extreme emotional physical

or mental needs of the child or the presence of a sibling attachment that can only be maintained through a certain placement but the factors are non exhaustive so that's not to say that physical distance couldn't create a mental need for the child to stay with a given family it's just that I notice that the regulations say that attachment That flowed from time spent with a non-preferred placement cannot be considered was this a non preferred placement did this placement violate equi yes justice friedland this was a non preferred placement meaning even the foster care so there

was essentially a mistake in putting this child with the Caldwells in the first place exactly justice Freeland there was a mistake because the Child and Family Services was not aware that CJ had a Tribal affiliation or the political relationship with the tribe until the Caldwells petition to adopt and the court became aware of of cj's sent status and this Court has never before held that a statute that classifies based on political affiliation with a federally recognized tribe violates equal protection and it should not do so for the first time today for the foregoing reasons we

respectfully ask that this court reverse thank you [Applause] all right we're gonna be easier on you mr. Chief Justice and may it please the court the anti-commandeering doctrine stands for the fundamental notion that Congress must direct legislation at private actors rather than at states ecwid does not violate this clear rule the Act confers rights on individuals and tribes involved in child welfare proceedings accordingly under the Supremacy Clause States must respect these rights and insofar as it was provision of Rights affects state actors it does so as a statute of general application not as a law

directed at the states the parties here agree that the appropriate framework under which to analyze this anti-commandeering challenge comes from this court's opinion last year in Murphy in Murphy the court laid out a two-part tests to determine whether a statute constitutes impermissible commandeering Of the states or valid preemption of state law first the court looks to whether a statute represents the valid exercise of one of Congress's enumerated powers and then the court asks whether that statute is best read as regulating private actors satisfies both prongs at this time your private actors argument so are you

arguing that equi regulates private actors of the sense of the families whose relationships are affected or is your arguments that there Are private adoption agencies who are regulated both your honors so EQUELLA is best read is regulating private actors for two primary reasons the first is that it serves to confer rights on private actors Indian children parents and tribes involved in these proceedings and the second is that the statute is of general applications so it applies with equal force to both public and private actors so states involved in these proceedings as well as individuals such

As the Caldwells and perhaps private adoption what about requires States to keep records in the like isn't it requiring States to affirmative ly do certain things so the record-keeping requirement is best read as securing one of the rights that equi confers on private actors and that's the right conferred in section 1917 for an adopted Indian child to learn of their tribal affiliation through court records and the only way For this right to be secured is by requiring that state courts maintain records in section 1951 so that's still best read as regulating private actors because it

serves to confer a right and it provides a number of other rights to tribes and form of the ability to intervene in proceedings and parents and all of these provisions are best read as regulating private actors not as directing the states I'm puzzled by one aspect of your brief where you appear to Insist that the placement preferences are procedural rather than substitute I have two questions one why is that so and two why does that help you so taking those questions in turn first we argue that these are best understood as rights that are secured

through procedural guarantees so we didn't mean to indicate that this is procedural versus substantive for Erie purposes and as this court discussed in Jenks it's indeed in this area hard to draw any Distinct line between procedural and substantive mandates so we merely meant to point out that they're procedural guarantees that ensure these rights what's the right the right fer is depending on the provision for effective the preference I assume the right is a substantive right to not be removed to a family other than one of the preferences yes substantive right that's a substantive right and

as this as Congress noted in passing it WA it found That Indian children suffer harms from being placed outside of their tribe and their culture and so the right vested in Indian children through the placement preferences is to be able to grow up within once culture and the rights that are given to a tribe findings that the children suffer or that the tribe suffers both your honor so the Congress in passing into a found that should children suffer serious psychological harms but it also found that Tribes were their ability to continue as self-governing entities was

being threatened by the removal of so many current and potential members from their ranks so it's it's a right vested in both parties and the respondents don't contest that it was I'm puzzled why doesn't the state have an interest if you have a child who's not a member of an Indian tribe why wouldn't the state have an interest at that point that was equal to if not greater than the Indian Tribes well Congress made the determination when weighing the relative interests there to apply federal law that gave greater weight to the protection of these Indian

children parents and tribes so it was Congress's job to determine how to balance those competing interests and it did hold their it did establish in section where does the power come from that gives Congress the ability to balance those competing interests Because it doesn't seem to come from the Union the Commerce Clause well your honor this Court has consistently characterized Congress's power under not just the Indian Commerce Clause but also the treaty clause as forming a plenary and exclusive grant of authority in this area and there's no subject matter limitation on this power Congress has

suffit to regulate in a wide range of areas that affect but here you have a child without any tribal membership Right and so I'm not sure what's their interest in that situation Congress still has an interest as a part of its trust obligation towards the tribes to regulate with regard to these children and this Court has never limited Congress's power in the field of Indian Affairs to regulating only enrolled members of tribes for example in Missouri it regulated the sale of alcohol by non-tribal members and on or near reservations and this is a very Broad

grant of authority in the only time that this Court has ever found that a statute exceeds the breadth of Congress's authority under the Indian Commerce Clause is when that statute has been used to try to abrogate state sovereign immunity violate do you have any cases where there was in tribal membership where we've upheld the law because here there's no tribal membership and asking us to hold it and in all the Other cases I've seen that cases related directly to tribal membership well your honor in the United States versus Missouri from 1975 the court applied the

statute to non-tribal members and it generally has done so with regard to on or on excuse me on or near reservation activities and so it's never held that the Indian Commerce Clause is limited to only regulating members of federally recognized tribes it can be anything that relates to this trust obligation as This issue surely does now respondents don't contest that equi confers rights on private actors but instead argue that it requires States to confer rights but this conflates respect for rights with conferral for rights unlike the statutes that were at issue in New York and

Murphy it doesn't require state legislatures to create any new standards or pass any legislation it simply requires that state actors comply With these generally applicable regulations and any conferral of Rights will necessarily affect third parties but it was effects occur equally and even handedly to both public and private actors and it's the Samaritan I know you argue that in that regard it's similar to Garcia because but in Garcia the minimum wage requirements that applied to States as employers applied to lots of private employers and overall they're probably more private employers than There are state employers

but here aren't child welfare services usually government-run so to the extent part of your argument is well there are private ones too it's kind of the opposite of Garcia that may be the case your honor however it's very similar to what this court faced in Reno V Condon in which Congress passed a law regulating the use of information created by state DMVs and it held there that the statute was a general application because it applied Not just to state DMVs but to the private parties who had obtained that information from those agencies and so there

the statute clearly had an outsized effect on States but the court still held that because it was of general application it didn't violate the commandeering doctrine or implicate the same concerns that this court was faced with for example in Prince and this case is also distinguishable from what was that issue in Prince because Whereas Prince involved a unconditional order to state actors equal is better understood as a limitation on state action so the Brady handgun Act provision that was at issue in Prince ordered state officers to conduct background checks irrespective of any other state action

but it was mandates only come into effect when the state decides to remove an Indian child from their biological parents or place that child in foster or adoptive care and Thus it's more similar to what this case this court faced in South Carolina v Baker where it held that states could be compelled to comply with obligations or regulations dealing with the issuance of bonds because states had to make an affirmative decision to issue bonds before those requirements came into place so I know one of your arguments is that in your brief is that we shouldn't

worry that people will blame the wrong sovereign so if they're upset about equi They will understand that equi is a federal law because the federal government usually is who's involved in Indian Affairs but I think that assumes a much higher level of civics knowledge that people usually have there are lots of people in this country you can't name three branches of government or members of our court and I'm wondering why you think that people especially people like the Caldwells who are not Native American will understand how the federal Government interacts with Native Americans well two

points on that your honor first this Court has cited political accountability as one of the concerns or rationales that under grow the anti-commandeering doctrine but it's never held that those are dispositive in the analysis but second we do argue that the kind of political accountability concerns that were added in this Court's previous anti-commandeering cases aren't at issue here and that's because the Federal government does have a long-standing relationship with federal but how I mean what political accountability comes down to is who are they gonna hold accountable just to simplified way and and all this occurs

in the state court system is you yourself acknowledging in the state system so why wouldn't they be looking to the stains well Your Honor we think there are certain areas that the federal government has traditionally been more Responsible for in our brief we cite a statute that deals with family law proceedings involving service members active duty service members and we think the same implications are at issue here I think most people wouldn't hold the state government accountable for different standards that apply to custody orders involving active duty service members and the same is true for

Indian tribes well I'm a new justice and I'm trying to understand what is the Political accountability Clause of the Constitution of the United States so there is no such clauses there there is not your honor so I tend when I think about this I I refer to a famous Law Review article by an obscure Law School Dean Manning said who fortunately was saved from private practice by the fact that our old importer did not hire him and he takes the position in this 2009 article that the anti-commandeering entire doctrine is a textual and worst Of

all purpose of astaire does it come from and should we not reconsider a doctrine that really has no basis in the text of the Constitution the Constitution has specific provisions that provide elements of federalism but to go beyond them like political accountability that sounds like something we talked about in Poli Sci courses well I don't you just challenged the doctrine altogether because your honor the anti-commandeering doctrine is Not centered in the text or any one provision of the Constitution because it represents an omission from the Constitution and that's the omission of the power of the

federal government - so that seems like the kind of argument the other side might make you would do a lot better if there were no anti-common principal wouldn't you perhaps your honor but there are is no anti-commandeering issue even under the current doctrine here and that's because What's at issue here with equi is the kind of regulation that congress has frequently used in the past and has never been understood to it it's a question of procedure versus substance that I started with can like Congress enact procedures Rules of Civil Procedure to cover federal rights in

state causes of action well as this court discussed in Jenks it hasn't reached that question yeah so that's why I'm asking you as we now we have to Reach that question I think for purely procedural guarantees that may are purely procedural mandates that may implicate the anti-commandeering doctrine but whenever those mandates have a real substantive bite as they do here it doesn't implicate the doctrine because these are procedural guarantees that are securing or right and the anti-commandeering doctrine has never been understood to prevent the federal government from conferring rights on Private actors and it's all

so now what about this provision that requires you to produce an expert is that procedural or substantive likely similar to the other guarantees it would be a procedural guarantee that secures a substantive right and there it's the right of Indian families to remain together if the state wishes to remove a child in certain circumstances it must produce an expert witness but as this court discussed in Printz this kind of Production of expert witnesses has a long history and has been allowed in the past for congressional mandates on state courts thank you you will now hear

from the respondents Thank You mr. Chief Justice and may it please the court my name is Melanie Fonts and on behalf of respondents bryce and candice caldwell in the state of ames i will address the equal protection issue this Court should affirm the judgment of the Ames circuit and holds That the Indian Child Welfare Act and the final rule are unconstitutional for three reasons first equal classifies children on the basis of their Indian ancestry and thus is a racial classification subject to strict scrutiny second equal failed strict scrutiny because it is not narrowly tailored to

a compelling government interest and third even if it did use a political classification it fails any lower standard of review because it is Not rationally related to a legitimate state interest thus we ask that this court strike down equi and the final rule first equal operates on the basis of a racial classification not a political classification it seems like a lot of your argument on this point and other points has to do with the second choice preference of going to a different tribe instead of the tribe that a parent is from as a member of

I'm wondering if we Agree with you that that part is not rational or doesn't have a compelling interest depending on what standard applies and we find that to be severable whether you still have all of your arguments as to the remainder of the statute yes your honor we do and that's because we understand to sever any part of either the definition or the placement preferences or any other part of equi would be to change fundamentally the applicability of the law we know This because do we just ignore then Congress's severability Clause it seems to me

Congress gets to make that call your honor Congress does get to make this call however we have evidence from the legislative history where we see that the Department of Justice asked Congress twice to change for example the definition of a word legislative history I don't I don't think I like that word I think Dean Manning's written about that I may be jumping the gun but I've to Take the question from the Justice on my right a little bit further is your position that all classifications that are based on ancestry are racial yes your honor so

aren't all Indians tribes based on ancestry that is no every recognized Indian tribe requires that there be some original historical group and that the current members are descendants of that group it's not true that is true your honor it's our understanding that the presumption is We're a law class af-- eyes on ancestry and thus race it is a racial classification unless the law fits into the narrow carved out space of Mancari Macari is a narrow exception to our understanding of racial classification as this Court made clear in its opinion in that case what's narrow what

is the narrowing wide doesn't under your theory every federal law relating to Indian tribes subject to strict scrutiny because every Indian tribe every current Member has to trace their ancestry one way or another to the original historical tribes although every tribe has some ancestral requirement for membership we recognize that there's a political act involved rather two political acts involved in membership in a federally recognized tribe the first of the of those political acts is the actual recognition by the federal government of that tribe the second is the affirmative choice an individual Makes to join that

tribe without those two political acts what we have is the racial group of Indians okay so so now you're talking up your enrollment question right is that what you're saying that the problem here is the child's not yet enrolled yes all right so what let's let's assume that the statute ended at 4a and the PERT and the child was already a member of a tribe is that a racial classification yes your honor Even so then it doesn't matter whether it's enrolled your position is every member of every tribe and he comes through ancestry and therefore

every rule the federal government like the Indians is subject to strict scrutiny is that right not quite your honor and that's because Mancari recognizes that a law ceases to be a racial classification and becomes a political classification where there are two factors present first is member first is that the law Applies only to members of federally recognized tribes and second is that the legislation aims at the federal interest in furthering tribal self-government so where this law which does not aim at furthering tribal self-government even if one doesn't it I'm not sure I follow you why

wouldn't it aim in furthering self-government if it if the whole principle is to keep the tribes and allow people that should be members to be members isn't that fostering Self-government ultimately not as this Court has understood in Mancari we saw that this court understood tribal self-governance quite narrowly as a political and economic interest to paraphrase from the opinion then the Ninth Circuit has helpfully defined this for us and told us to look for uniquely Indian and the Ninth Circuit actually doesn't carry much sway here and Mancari only talked about no disrespect of the Ninth Circuit

but it is the fact Mancari Talked about tribal self-government as something that mattered in that case did we suggest that that was the only possible ground for recognizing this as a political circumstance the example that my colleague on the Left expresses is close to tribal government we never said travel self-government was the only thing that would satisfy that satisfy us your honor this Court did not however if we look at the line of cases following Macari we see that tribal Self-governance has been construed narrowly so we can fast forward for example to rice in 2000

where this Court held that the candidate qualification preference for Native Hawaiians who had an ancestor who was present in the Hawaiian island in 1778 that even if Native Hawaiians were were members of federally recognized tribe that preference would still fail Macari because it went to critical state Affairs even though the office of Hawaiian Affairs in many ways functions similar to parts of the Bureau of Indian Affairs and we can see this time and time again we look at this Court's precedent following Macari but in both of those cases there was some tribal or native related

entity but we're talking about the tribe itself how can the tribes survive without members your honor while the tribe cannot survive without members the question before us Right now is whether that interest is enough to lower the standard of review here we argue that it is not because that falls outside this court's long-held understanding of where there is a political classification so to turn to some examples we see in cases like Fisher and antelope those cases involved political classifications of political classifications not just because they applied only to members of federally recognized tribes but because

they Advanced tribal political self-governance that is transferring jurisdiction from state courts to tribal and federal courts in moe for example we saw that the law was a political classification because it advanced economic self-governance that is providing the Indian tribe tax immunity from local and state taxes why isn't maintaining human beings who are going to make a tribe as much a matter of continuing self-governance of The tribe as he's anomic issues why isn't it more important you don't like it would come a fortiori if we're going to protect economic interest of the tribe that we're going

to protect their interest in surviving to the next generation because your honor the inquiry here is just whether the standard of review ought to change because of the because of the interest involved we construe tribal self-governance narrowly not because we Don't recognize that there might be other tribal interests at stake but because we realize that Congress ought to be more deference where it is legislating with respect to tribal Indians but that same level of deference can't be owed where the federal government is aiming at something other than those narrow that narrow inception of tribal self-governance

that go back to your I'm sorry to interrupt can I go back to your racial Classification for a second cuz I'm struggling so can a tribe define its members however it longs within some limits your honor as this Court held in Santa Clara V Martinez the court has sorry tribes have broad authority to set their own membership requirements however we can see with some of the lower courts that there are some limits for example if we look at the Neel simply caching case for which this Court denied cert coming out of the Tenth Circuit there

we held or there the Tenth Circuit held that where the tribe had changed it's an eligibility requirement where it had automatically enrolled children for 240 days after birth in order to avoid the avoid any perverse consequences with equi there the court struck down that membership requirement because it held that that was just doing gamesmanship with a federal statute similarly assume they're not doing gamesmanship with the federal statute But as soon as you I think acknowledged in your briefs they're letting like whites and descendants of slaves people they have no ancestry traced to the tribe you

would still call it a racial classification under that circumstance yes your honor it's still a racial classification under that circumstance for three reasons first even though a law may classify other individuals excluding or outside that racial group the law is not any less of a racial Classification where race is the predominant factor and we can see this in other equal protection cases for example or Miller v Johnson second we have this Court has held that the political classification is narrowed to members of federally recognized tribes because it recognizes that there is an official process for

that federal recognition for example if we look at the federal acknowledgement Act which has governed the federal recognition Process since 1994 part of that Act requires that tribes submit constitutions and bylaws defining their membership so federal recognition is predicated on an understanding of how the tribe will define its membership and as the DC Circuit for example held in Cherokee Nation versus Nash very recently where that's another circuit doesn't get I'm going to interrupt but to provide an example there where the Cherokee Nation Attempted to disenroll the descendants of former freedmen and former slaves the Court

struck down that membership change because it acted against in 1866 treaty so we understand that membership is titled can I get back to that I think it was the Tenth Circuit which we're gonna give some sway to that you are talking about but which unfortunately I didn't read the opinion because it's a you know a circuit and we only read our own opinions up here are you saying it held That you can't have automatic enrollment in the tribe no your honor there the Tenth Circuit took notice that the tribe had changed its enrollment criteria simply

to avoid the application of equi so there becomes a question of when the court will question so what what if the tribe had birthright citizenship right you're born a of a member of the tribe you're automatically in the tribe just like you're born an American American you're an American Would that be okay or not okay from your point of view your honor it depends if that automatic enrollment process was part of the membership criteria submitted through the federal acknowledgement act or however the tribe were I'm not interested in a question whether you think that's racial

or not racial whether it be subject to strict scrutiny or not strict scrutiny if a tribe just wanted to say everybody born of a member of the tribe is a member of The tribe rather than having to enroll its children separately for some reason would would that would that would that child now be it would be appropriate to treat that child under it whether way the Caldwells foster child was treated here presumably yes your honor however if that were the case that we had tribes automatically enrolling their members that would fundamentally change our analysis under

Macari Mancari is clear that legislation applies only when Legislation applies only to members of federally recognized tribes it ought to be considered a political classification oh but we're talking about babies so I don't know I mean what is the difference between what if what actually does at least with respect to children of and their relationship to a tribe that one of their parents was a member of that they could become a member of if they're just babies and they haven't yet had the opportunity to Make a choice why should they be treated as the birthright

example for two reasons your honor children like any other individual retain the choice to enroll in an Indian tribe at any point in their lives so ecwid does nothing to advance or prevent that choice however even if we were to take special solicitude at the facts what does advance that choice doesn't it because it makes it much more likely that they're living with members of the Tribe that they're if the tribe has a reservation that they're there perhaps rather than with someone with no connection to the tribe at all doesn't that make it much more

likely that they'll become a member of the tribe not necessarily your honor for the simple fact that the 19:15 placement preferences don't set any procedural safeguards for that sort of choice and even allow the child to be transferred to another tribe to which they have no Ancestral connection into which like CJ they may never be and I stopped you on the first episode not sure I understand your are you saying that if they are raised by members of the tribe they're not more likely to participate in the tribe it may be that those particular children

may be more likely to join the tribe however where does it why wouldn't that be an interest in which the government can promote because the law does not cube that closely when we look At the text of equi it's applying to a vast majority of Indian children that has enrolled tribal children and those who are eligible for tribal membership and the procedural safeguards set forth and the placement preferences for example are thin they do not guarantee that the child will be placed with a family and thus enroll in that Indian tribe in this form you're

arguing that there shouldn't even be an attempt I mean just because it's not perfect or it Doesn't always guarantee it does that mean Congress can't try your honor insofar as equi is a racial classification subject to strict scrutiny Congress may not and that is so I'm wondering whether it even is a compelling interest I mean the history here is terrible the federal government ran 150 or more boarding schools and sent Native American children to them and they were beaten if they spoke their Native languages I mean there was a massive effort to assimilate these children

so that tribes would be wiped out of existence why is it not a compelling interest to remedy that history your honor it's not a compelling interest to remedy that history because that's not the history that Congress was responding to as petitioners note in their own brief that history with the boarding schools ended well before consideration of equi before Congress And so this thing wasn't at the beginning I mean maybe not the beginning there's a long history of problems but it was a big chunk of a problem that led to tribes not having as many members

which then maybe got continued advice states but that was a serious problem for tribes having members so I don't understand how that's not still part of the history that could be attempted to be remedied Your Honor that's because it falls outside this Court's jurisprudence On what qualifies as a compelling state interest where we're considering past discrimination this Court has consistently held at Leeson's Wygant that remedying discrimination without more it's not a compelling interest unless the federal government shows that it was the governmental actor doing the discrimination I think your misconstruing Wygant and crocin the issue

in both of those cases was whether the preference applied to the entity That had committed the history of discrimination it wasn't a question of whether the federal government could apply the preference to that same entity the federal government is not applying this preference to itself based on discrimination in the States it is applying the preference to the States based on discrimination by the state's past discrimination so I I don't I I think you're going to have to we're gonna have to strike out a new kind of Case law here to go where you're going I

explained to me why why ganzen crocin really matched this question your honor those cases matched this question because they recognized that there must be a strong basis in the evidence to use remedying past discrimination as a compelling state interest and that's because due to this country's hiss historical discrimination against racial minorities we recognize that this idea of remedying past discrimination is Simply too amorphous a concept to justify constitutional injury not just on those classified by the law but by other actors is there anything that Congress could do to remedy these pasts in justices yes your

honor Congress could pass a law granting tribal courts exclusive jurisdiction over adoption proceedings for tribal children living on or near reservations that would fall within Congress's power mr. Chief Justice and may it please the Court the second issue in this case is whether Congress can compel the states to implement a federal regulatory program on its behalf under the anti-commandeering doctrine the answer is no it was thus unconstitutional and should be struck down when the framers drafted the Constitution they explicitly chose to establish the federal and state governments as separate spheres of Sovereignty and to grant

the federal government the power to act on individuals not on States you know I know one of your arguments is that family law is the realm of the states but I believe your colleague just said that we could take an entire aspect of family law away and give it to tribal governments how is that not a bigger imposition than what has been done here your honor if that transfer of jurisdiction we're limited to Individuals who fall within the federal government's power over Indian Affairs whether that's understood as being within the Indian Commerce Clause or an

understanding of plenary power a transfer of tribal jurisdiction might be our transfer of jurisdiction to tribes might be permissible one of the key infirmities with equi however is that it's not limited to that group of individuals within Congress's power under the Indian under the Indian Affairs power that's because as you've discussed with my colleague it regulates also children who are not enrolled members of tribes it also regulates the parents of those children who might not be Indian at all as in this case and even the adoptive parents whose rights are not challenging the other provisions

of it was being violations of equal protection your honor well it's only an as-applied challenge to the [ __ ] that [ __ ] lied to their child in this case And to the the fact that this child in this case is not an enrolled member no your honor this is a challenge a facial challenge to the law well how can it be if you're telling my colleague with if it were limited in certain ways that is if we severed out the bad parts and save the good parts it would be okay your honor for

the purposes of the equal protection challenge the focus is on the definition and as we've discussed our primary issue with the definition is the Second part that is the part that applies not to enroll a tribal member but two children who are eligible to be members of tribes that's relevant to the commandeering analysis insofar as an order for this law to be a valid exercise of congress's preemption power it needs to be within Congress's power and it's our argument that it is not because it extends beyond that but this law is also a constitutional violation

because it is not best read as a law That regulates private actors that's the second part of the Murphy test that is merely a restatement of the proposition that Congress cannot commandeer the states and because it will come out as a commandeering the state's what specific provisions commandeer the state your honor our challenge is focused on 1911 1912 1913 and 1915 which are essentially the provisions that requires States to implement a quest so there the Provisions that require state executive officers namely employees of the Child Protective Services Division to say take active efforts to prevent

the breakup of Indian families there the provisions that change the procedures that state courts have to follow in adjudicating state law why not I'm not sure I follow why they don't have the plenary power because they have plenary power over Indian Affairs why wouldn't they be allowed to do this in other words They're not commandeering in the same way as Prince or Murphy they're not doing anything to the executive or legislature per se well your honor we believe this is not within the Indian Affairs power for two reasons one reason is that this regulates too

broad a group of individuals as we've just discussed the other reason is that even if this were a law limited to that group of individuals that is tribal members the plenary power Is not absolute as this Court has held since at least Creek Nation and Tillamook s-- and most relevant this Court held in Seminole Tribe v Florida that the Indian Affairs power even if understood to be plenary is limited by the provisions of the Constitution there the relevant provision was the Eleventh Amendment the court held that Congress did not have the ability under the Indian

Affairs power to abrogate state sovereign immunity in violation of the Eleventh Amendment here the anti-commandeering doctrine provides the limitation and so even if this is regulating the right group of individuals because it required the states to implement it this is a violation of the Constitution doesn't it just wither would separate out the executive from the courts for a moment with respect to the courts doesn't it just require the courts to enforce federal law it does not your honor at Least not in a way that this Court has upheld before this Court has said that Congress

can issue some direction to the state courts that is Congress can require state courts to hear federal causes of action at least when the state courts would hear them if those same causes of action arose under state law that's the test a line of cases and that's what the courts in new york and prints are citing when they suggest that there might be an exception to the Anti-commandeering doctrine for courts but what this what it would does is different echo does not create a federal cause of action indeed the text of iqua itself says repeatedly

that these are proceedings under state law instead echo is changing the procedures by which state judges if we if we think if we think of what's happening here as conferring a right on the child and the tribe to not have the child removed outside of the tribe and What Congress is saying is that the better the state court has to enforce that right you're saying that violates anti-commandeering we are your honor so what if Congress passed a statute that said state courts cannot discriminate against African American African American children and we're not giving a cause

of action just saying they can't discriminate and if they do then they're acting in violation of the Supremacy Clause we're pre-empting any Contrary state statute why is this any different well your honor because in that case as you said there is a relevant cause of action Congress has provided a substantive right as you say that is not to be discriminated against on the basis of your race and then it is provided a cause of action for someone to seek enforcement of that right if that right has been violated the relevant difference here is that equi

doesn't provide the cause of action and Instead it sits on top of existing state law causes of action and it tells state judges how to decide those cases those wouldn't the other statute tell state judges they discriminate in their decision-making against african-americans that's what the statute says state judges may not discriminate in their decision-making against african-americans and if they do then just as in this case the intervener the tribe can object that that's what's Happened here yes your honor it's my understanding though that that statute would essentially be a restatement of a constitutional principle and

the procedures that are being followed in these cases are otherwise constitutionally sufficient now we're slipping back to the question of whether there's planet plenary power the purposes of this hypo we'll assume there's plenary power you offered that up so if there is plenary power now we Get to the next question Congress does and Congress has the power to act with respect to this this kind of a member of a tribe or possible member aren't those two separate questions whether Congress has the power I appreciate that in my example of maybe the power comes from the

Fourteenth Amendment if the power comes from the Indian Commerce Clause reverses the hypo why is any different well your honor this Court has treated statutes passed Under Fourteenth Amendment differently from statutes passed under the if you were original provisions of the Constitution because the Fourteenth Amendment has been understood to change the federal-state balance and in some cases to allow laws that would otherwise be considered commandeering the example you provide I believe is quite similar to the multi-ethnic placement Act which is an act Congress passed that said courts should not consider a race of I Believe

it's the parents and that act in adoption proceedings but that's actually a conditional funding scheme which recognizes that Congress apparently thought it did not have the power to pass that statute isn't Akua also there is funding in the Social Security Act that is contingent on States following iqua isn't there there is your honor in title 4b but if boy is not a conditional funding scheme equal is a law that finds the states and Regardless of whether or not they're receiving funding the Social Security Act provides additional funding to States if they comply with a cola

but if states were to forego that funding they're still bound by equus requirements but did aims forego that funding Your Honor I don't believe we have in the record whether Ames has forgotten that funding but I don't believe the answer to that question is dispositive here Ames is still bound by Equi and as far as we know has complied with it or at least tried to comply with certainly in this case they did the difference between a conditional funding scheme and it will allow that's binding is that the state has the choice not to regulate

in the way the federal government has asked it to regulate that is in a conditional funding scheme the state can choose to regulate according to the federal government's preferences but it doesn't have to and that means That the state remains politically accountable to its citizens if the citizens don't like that the state is or is not complying they can seek to elect different officials who will or will not comply they can't do that here Ames has no control over whether or not it complies with iqua thinking on this question of why it matters that it's

a federal cause of action as compared to a federal defense or right that can be asserted by intervention so imagine that A state wants to hold auto manufacturer the state was to hold many auto manufacturers to a higher standard than the federal standard the federal standard pre-empting that higher standard and then the state says well we don't care you can't stop us you didn't create a cause of action we are going to prosecute this auto manufacturer in this state for not meeting the higher standard and at that point not as a cause of action but

as a defense the Manufacturer says well you can't do that that's your statute is preempted only within that respect you can have all kinds of procedures you want about enforcing pollution controls but you can't have that one why is this do first of all do you think that would be commandeering I don't your honor assuming that the federal government properly had the power to regulate their so assume here that the federal government has that Power only on the commandeering question why is that different well your honor it's my understanding that in that case the reason

the federal statute governs and does not come in dear is that there essentially is no state cause of action because the federal law has replaced it and the federal law which acts directly upon the auto manufacturers presumably is not commandeering it's not telling the state courts how to decide their cases and said it's just saying the Federal government has determined that our laws govern these actions and so there is no state cause of action why isn't the federal government replace the normal preferences of the state of the state of the Ames family law it's just

replaced them your honor the federal government here is replacing the the way that the state judges decide how to place children certainly but the proceeding itself is under state law and it what itself tells us this the federal Government has not created a federal cause of action and indeed it probably could not because as we begin our discussion by saying family law is typically within the nearly exclusive province of the states this Court has recognized a principle that the federal law takes the state courts out a fine so are you saying they can never get

involved with with American Indian children the federal government your honor Yes and any type of preferences related to that Your Honor we believe that the federal law could ask the states to apply these similar preferences through for example a conditional funding scheme and we make aunt through their plenary powers they could regulate perhaps family law through their plenary powers though this Court has never said that the Indian Affairs power that extends or that the Indian Commerce Clause power extends to family a lot What if the state I'm sorry to interrupt you what if a state

used exclusively private adoption services your honor that would be a much more difficult question in Italy because then we would be asking a case about essentially a question about how this law is best read first of all that's not the situation here adoption it's typically done by the states but under this hypothetical it might be the case that a lot could be best read is regulating Private actors if we knew that a significant percentage of adoptions were performed by private actors in estates we might also look at the activity itself and ask whether that's something

that the states had traditionally done indeed that was a little bit closer to the inquiry in the Reno and Baker cases the cases that found the laws to be generally applicable those cases were concerns not so much with the percentage breakdown of who was performing Activities but with what the activity was and how the states were being regulated so in the reno case for example the government upheld this law governing how states treat private information collected from drivers because it was a law that regulated States acting essentially like private entities and specifically not because it

was a lot of Pacifica Lee because it was not a law that regulated how states regulate private individuals or that Required States to implement a federal regulatory program it was all about how states regulate private individuals I'd like to go back to your answers I think you said this could be done through conditional spending legislation but I'm confused wouldn't you say there'd still be an equal protection problem we would your honor and then my statement that was just with regard to the anti-commandeering concern we believe that the anti-commandeering concern Would be remedied if this were

a conditional spending program again because then the state maintains the decision of whether or not it wishes to comply and thus the rate remains politically accountable to its citizens so sorry going back to this hypothetical where a state has just private adoption agencies yes I have trouble seeing how you have a commandeering problem I know you'll say something about maybe the state this the state courts that the Adoption agencies would need to go through but it's I have trouble seeing how there aren't all kinds of federal laws that state courts have to apply and they

have that is a much harder part of your argument your honor that certainly would be a much harder case if private adoption agencies we're doing all of the work the only way that would look like a come in during problem is if we think about the activity being regulated and whether that's something that is Typically left to the states and the states are choosing to essentially contract out but that raises questions about state delegation to private entities that aren't at issue here here stay are primarily performing the functions that it will regulates that is true

of adoption but many of the functions that ik were regulating only ciouds can perform for example all of the state court proceedings none of that could be Done by a private actor and even some of the provisions that impose obligations on the state executive agencies appear that they might be read to apply to private actors too but really apply primarily to state actors for example 19 12 D which is the active efforts provision which is one that is most commandeering insofar as it requires child protective services offers officers to take active efforts which are affirmative

efforts to that Provision wasn't implicated in this case at all was it I'm a little unclear how you can challenge that provision it wasn't implicated in this case under the facts of this case but it should have been because CJ is an Indian child within the definition of equi and CJ was removed from his biological mother AWS home now because the state did not know that CJ was an Indian child it did not have it did not comply with 19 12 D but had it known the state would have had to Take active efforts those

are affirmative actions to prevent the breakup of the family before it could remove CJ from his home again it didn't here because it wasn't aware which simply highlights that this provision is applying even to children who do not have an existing tribal connection and who are not eligible members or the children of eligible members for the foregoing reasons we respectfully request this court affirm [Music] mr. Chief Justice a few brief points in response first on the equal protection issue respondents proposed here today several limitations that this Court should place on the application of the Mancari

rational relationship test but none of these limitations follow from this court's opinion in Mancari or any of its subsequent applications of that test first respondents argue that there should be a limitation based on whether A statute deals with tribal self-government but as this Court made clear in Antelope tribal self-government is only one way for a statute to be rationally tied to Congress's fulfillment of its trust obligations and subsequent cases like the Washington commercial passenger fishing vessel case only dealt with statutes that have if any connection to tribal self-government a very tenuous one there was a

grant of fishing rights and so this isn't a Limitation that this Court has recognized previously on the main car test but even if it was it was satisfies this test because it clearly serves tribal self-government by giving tribes the right to intervene in proceedings and by indeed ensuring the tribes have the membership to continue as self-governing entities and respondents also argue that Macari should be limited only to enrolled members about how sending an Indian child who is eligible For one tribe to another tribe across the country maintains tribal self-government of the first tribe well your

honor it maintains tribal self-government because it ensures that those children grow up in Indian culture and they're far more likely to form a political relationship with their tribe their own tribe later on having grown up in a society that has respect for that kind of political bond now turning to the anti-commandeering issue respondents Argued that equal commandeer state courts but requiring state judges to apply different burdens and standards has never been understood to implicate the anti-commandeering doctrine it's a straightforward application of the supremacy without the active efforts so the active efforts provision is of general

application section 19:12 D applies to any party who seeks to affect the foster placement of an Indian child or a removal of that child From their parents and thus it's close to what this court faced in Reno V Condon and it similarly is a grant of a right to those children to only be removed from their homes and to the parents to only have their children removed when active efforts have been made so it's a condition and a limitation on state action rather than an affirmative order it only comes into play when the state decides

to remove a child from their home so what Respondents are asking for here is not an application of the anti-commandeering doctrine but an extension of it far beyond what this Court has recognized in its past cases for those reasons we ask that this court reverse thank you no surprise we'll be taking this matter under submission give us recess crowd of applause all rise please be seated and come to order okay in the matter of the Ames moot Court final round the decision of the judges is as follows best briefs the petitioners best oralist responded Kelsey

Frasier [Applause] as team respondents [Applause] now does the Dean want us to do something else you don't know okay well there was some reference to a brief discussion about oral argument is that correct No you have something to say support so you'll make some brief comments here to the or less and then we will recess here and then do private commentary later okay so I thought all of you were tremendously excellent I wish that I had advocates like you in court all the time I occasionally have people almost as good as you guys but not

usually and it was really wonderful to watch all of you and to to be able to be here and to be a part of this you did extraordinarily Well I think you all had the idea that you are really answering questions you were really listening to our questions you stayed very calm you were really just excellent should we save individual remarks for later okay um I will make a pitch though since I have this opportunity to tell you that in the Ninth Circuit if you take over a pro bono case you are guaranteed in oral

arguments I hope that I will see all of you in my court in the near future we Try to do the same in the sixth so alright we'll do the same but only to the people in this room don't tell anybody that's a pro Harvard bias good point yeah require strict scrutiny though and compelling interest I second everything and that judge friedlin said I thought this was really terrific both the briefs and the oral arguments were quite amazing and up to the highest professional standards that we see and I'll just say just a tiny addition

to What to feel and said about the nature of the discussion so for me the thing about oral argument is it should be a discussion with the judge it should not be you know I've got these 25 points and I have to get them get through them regardless of whether they're those are the questions the judges are asking or not and all of you did this extremely well that is when we asked a question you diverge from whatever else you thought your business Was going to be and you answered the question and you know then

you can move on and that is as questions are not to be feared the whole point in oral argument is you want to know what is bothering the judge so you can fix that problem we gave you the Supreme Court's new innovation a little bit which is that you get a couple of minutes two minutes at the very beginning but very few courts give you that two minutes anymore and I'll be very surprised if The Supreme Court doesn't deteriorate with respect to those two minutes and people start asking questions before and and you should want

that you should want to know I'm not for move Court purposes but further from the point of view of being an advocate you want to know what is your weakness and can I explain it and I thought it was great yeah I thought it was exceptional I agree with everything they both said the one thing I'll say for people that have never done It it's incredibly hard to stand there I think almost universally without notes or without looking down look us in the eye answer the questions will come up with questions that are sometimes crazy

or try to throw you off or turn you a different way and all four of you did an exceptional job of just staying the course answering the questions making sure you answered the question and then weaving it without even like seamlessly Back into your argument right into the case law right into everything even if we ask they're completely off the law question you you make it sound reasonable and weave it right back in which is really a masterful skill and something I commend you all for it I hope you will come to the Sixth Circuit

first because it's closer and if we could give one more round of applause for competitors energetic if everyone would rise [Applause] you