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In cases before the Supreme Court, solicitors general almost always defend all acts of Congress that can plausibly be defended. But on Monday, no one from the solicitor general’s office stood to speak up for a section of the Bankruptcy Code that is under challenge in Tennessee Student Assistance Corp. v. Hood, No. 02-1606. The closely watched bankruptcy case asks whether Congress has the power to abrogate state sovereign immunity from being sued in Bankruptcy Court. Pamela Hood, a Tennessee student, declared bankruptcy in 1999 and tried to discharge her state student loan debt with a filing in Bankruptcy Court in the Western District of Tennessee. Tennessee responded that, based on its sovereign immunity, it could not be sued in Bankruptcy Court. The 6th U.S. Circuit Court of Appeals ruled that Congress could trump state sovereignty under the Constitution’s bankruptcy clause. Before the high court, the dispute is between the Tennessee student loan agency and Hood, but it would not have been unusual for the government to seek argument time to defend federal supremacy in bankruptcy matters. The reason for the government’s absence is contained in a letter Solicitor General Theodore Olson wrote to the Senate Judiciary Committee last November. Olson noted that the 6th Circuit ruling conflicts with decisions of five other circuits, as well as numerous decisions of the Supreme Court itself — federalism rulings beginning with the 1996 case Seminole Tribe v. Florida, which said Congress cannot abrogate state immunity under Article I of the Constitution. He also said that his predecessor, Clinton administration SG Seth Waxman, had decided to stay out of an earlier case raising the same issue. “In light of those squarely applicable Supreme Court precedents, I have decided not to intervene in this case,” Olson declared. “I would have liked the government to defend the statute,” says Bingham McCutchen bankruptcy expert G. Eric Brunstad Jr., who filed a brief on the side of Hood. “This is an issue the states care about a great deal. They want Seminole Tribe left intact.” In order not to annoy the states, Brunstad says, the government may have decided it was wiser “not to get involved.” Editor’s note: The piece above is excerpted from Tony Mauro’s “Courtside” piece, which appears monthly in Legal Times . Mauro’s e-mail address is [email protected]

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