Moreover, even though I agree that these challenges may be made, if they are raised at the appropriate time, I strongly disagree with the assumption that the debtor should be able to use §362(a)(3) as the basis for seeking a plenary, de novo review of these issues after the regulatory process is complete and the government is prepared to implement its order. Waiting to conduct such a review until that point, I suggest, comes far too late in the process. In all but the most unusual cases, these issues will be apparent and ripe for decision as soon as the government begins its regulatory actions. When the government continues an enforcement action after a bankruptcy filing, it does so, perforce, based on the assertion (whether explicit or implicit) that its actions are justified by the police and regulatory exception and are not being taken in bad faith. If the debtor disagrees with that position, it can and I suggest must timely assert them, either before the bankruptcy court by means of a requested injunction, or in the nonbankruptcy proceedings as an affirmative defense, long before the final judgment is reached. It makes neither legal nor logical sense to suggest that a debtor may allow the litigation process to run its course in state court and only then raise these issue before the bankruptcy court if the results prove unfavorable. The non-bankruptcy court may have explicitly ruled on these issues — and, if so, its judgment is entitled to full faith and credit. But, even if it did not, the principles of res judicata dictate that these defenses must be raise at an appropriate time or they will be waived. It is one thing to say that the government must be prepared to defend its actions if the debtor challenges them in a timely fashion; it is quite another to say that the reason for retaining §§362(a)(3) and/or (6) is to ensure that debtors may have this very belated bite at that apple.

Some may view these arguments as overly technical or legalistic. Why not, after all, let the bankruptcy court, the "authority" on the automatic stay, decide those issues once they are really "crucial?" Or why not let the bankruptcy court "balance" the important goals of the Code against the regulatory requirements of the other statute? Why not indeed. While these arguments may seem tempting, they are based on the notion that bankruptcy is an area in which normal rules of jurisprudence simply don't apply — and that is a very dangerous slope to begin to venture down. Moreover, while there may seem to be little harm in allowing judges to exempt a debtor "just this once" from just this little "technicality," the legal and practical drawbacks to granting such unbounded authority to judicial actors are insurmountable. What standard would they use to "balance" a goal against a law? What evidence would be admissible to prove the "need" for the law? What presumption of validity would be accorded to the conclusions of the statute's drafters on those issues? Perhaps most importantly, how would the interests of third parties like neighbors and competitors be recognized in this process? Professor Markell does not like legislatures passing laws without notice and comment — surely he does not suggest that a court should be allowed to override a duly-enacted law without according those same rights to everyone affected by the change?

All of this suggests why we believe the present proposal is necessary. Professor Markell disagrees and argues that there is no reason why the current legislation should go beyond language dealing with chemical weapons inspectors. His proposal is flawed for several reasons:

• First, if a change is made only with respect to chemical weapons, this would strongly suggest, by negative implication, that §§362(a)(3) and (6) do apply to bar all other governmental police and regulatory actions that may affect estate property. The courts are currently split on these issues, but adopting Professor Markell's proposal would strongly suggest to them that the argument should be resolved against the government. Thus, his change would not be neutral, but would leave regulators in a weaker position than they are now — which directly contradicts the recommendation from the Working Group of the Bankruptcy Review Commission that the government's ability to act should be strengthened.

• Second, while chemical weapons are undoubtedly dangerous, in reality, the number of filings involving such parties are likely to be minuscule, at best. If it's important to ensure that the government can act in those highly unlikely cases, why is it any less important to ensure that it may act in the more mundane, but far more likely, situations that occur? Shutting down an unsanitary restaurant without delay, for instance, does not have the glamour of seizing chemical weapons — but is far more likely to actually prevent illness and death. Granted, most courts will probably overlook the "technical" violation that occurs when the health inspectors padlock the doors without obtaining relief from the stay, but should a government be forced to operate this way — protecting the public good only at its peril and under the constant threat of contempt sanctions? I suggest that is no way to run a railroad —or a government.

• Finally, Professor Markell's suggested language does not deal with §362(a)(6) and he continues to profess a lack of understanding as to why the proposal in S.610 deals with that section. The reason is simple. By its terms, that section prohibits any act to collect or recover on a pre-petition claim — words which, applied literally, cover far more than just attempts to receive actual payment of one's claim. Debtors have frequently argued that the section should be applied according to its literal terms, so as to bar even regulatory actions that are explicitly covered by the section 362(b)(4) and (5) exceptions. In their view, every act that the government takes, from the first filing of a complaint to the last appeal, is simply a step along the way to collecting on the claim and, as such, is barred. Again, to be sure, most courts view that interpretation of the section as "absurd," and rewrite its language so that it does not apply to actions that are otherwise excepted from the stay. But, so long as the words are as broad as they are, they will invite unnecessary litigation. If the section were rewritten to narrow it to its intended scope; i.e., nonjudicial acts of harassment or coercion, then there might be no need to have a governmental exception to it. Until then, though, it is important to clarify that it does not apply to normal police and regulatory litigation and that is what the language in S.610 attempts to do, by allowing enforcement of regulatory judgments, while excepting the enforcement of money judgments.

Finally, Professor Markell returns to Seminole as a reason for retaining the automatic stay. Much of the debate on this topic seems to proceed on the notion that state laws allow government officials to seize money and assets of the estate in blithe disregard of the Due Process Clause. Obviously that is not the case. Indeed, the vast majority of police and regulatory seizures will only take place after prolonged bureaucratic wrangling so the debtor will have ample opportunity to name the appropriate state official (rather than the state directly) and request an injunction against the actions being threatened by that official. Moreover, even where tangible assets or a bank account are seized or frozen without a preliminary hearing, it may still be possible to obtain injunctive relief against the state official to obtain the return of the items, so long as the debtor retains an ownership interest in the property. Finally, as to the small number of cases that may remain, I am confident that there be some forum where monetary claims against a state may be heard in virtually all instances. State politicians must answer to their constituents, after all, and those persons are unlikely to allow the government to trample on them without an opportunity for redress for long. Those state forums, in turn, are required to enforce federal laws equally with state laws.

Failing to do so is unconstitutional and would be subject to appeal to the state Supreme Court and to the United States Supreme Court. While in an occasional case, the need for such review may result in greater cost and delay than would occur if the states were fully amenable to suit in bankruptcy court, this is part of the price we pay for our federal system. (Indeed, the frequent efforts by debtors to use bankruptcy as a means of shifting pending state court litigation to bankruptcy court has its costs as well, but that too is part of the system.) In any event, the Supreme Court has spoken and Seminole is the law of the land. In my view, the cases where Seminole will raise substantial issues will be far fewer than those where it is important to clarify the government's ability to act to protect its citizens during a bankruptcy case. That is what this amendment is about, and I continue to believe it is necessary and appropriate.