STATE OF NEVADA, PETITIONER V. SAMUEL K. SKINNER, SECRETARY OF
TRANSPORTATION, ET AL.

   No. 89-696

   In The Supreme Court Of The United States

   October Term, 1989

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Ninth Circuit

   Brief For The Respondents In Opposition

            TABLE OF CONTENTS
   Question Presented
   Opinions below
   Jurisdiction
   Statement
   Argument
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 1a-42a) is reported
at 884 F.2d 445 (9th Cir. 1989).  The order of the district court
(Pet. App. 43a-54a) is unreported.

                             JURISDICTION

   The judgment of the court of appeals was entered August 31, 1989.
The petition for certiorari was filed October 27, 1989.  The
jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

                          QUESTION PRESENTED

   Whether the federal statute requiring States to adopt a maximum
speed limit as a condition for receipt of federal highway funds is
constitutional.

                               STATEMENT

   1. In response to the Arab oil embargo of 1973, Congress enacted
the Emergency Highway Energy Conservation Act, Pub L. No. 93-239, 87
Stat. 1046, which precluded the Secretary of Transportation from
approving federal funding for highway projects in States that have a
maximum speed limit in excess of 55 miles per hour.  S. Rep. No. 1111,
93d Cong., 2d Sess. 17 (1974).  Although the primary purpose of the
Act was to promote energy conservation, Congress also believed that
the lower speed limit would produce safety benefits in the form of
reduced accident fatalities and injuries.  See 119 Cong. Rec. 39,257
(1973) (Rep. Blatnick);  id. at 39,258 (Rep. Cleveland);  id. at
41,646 (Sen. Stafford).

   One year thereafter, Congress enacted the Federal-Aid Highway
Amendments of 1974, Pub. L. No. 93-643, 88 Stat. 2281, now codified at
23 U.S.C. 154(a), making permanent the condition that "(t)he Secretary
of Transportation shall not approve any (federal-aid highway) project
* * * in any State which has * * * a maximum speed limit on any public
highway within its jurisdiction in excess of fifty-five miles per
hour." /1/ In enacting this provision, Congress emphasized again both
the energy conservation and safety benefits of the law.  See H.R. Rep.
No. 1567, 93d Cong., 2d Sess. 9-10 (1974).  /2/

   2. In 1985, the Nevada legislature enacted legislation authorizing
the Nevada Department of Transportation to establish speed limits up
to 70 mph on highways and roads within the State.  Nev. Rev. Stat.
Section 484.369 (1967);  Pet. App. 62a-63a.  The higher speed limits
were to go into effect on July 1, 1986, but were to expire if federal
funds were withheld as a result.  Pet. App. 45a, 62a.

   On July 1, 1986, the Nevada Department of Transportation
established a speed limit of 70 mph on a 3-mile section of Interstate
80.  Pet. App. 45a-46a.  The Federal Highway Administration
immediately informed the State that it was withholding approval of
federal funds for a designated highway project that had previously
been submitted for approval, and that it would be unable to approve
funds for other projects until the State resumed compliance with
federal law.  The Nevada statute then expired by its own terms, and
the 55 mph speed limit was restored.  Pet. App. 46a.

   3. On the same day, the State filed this action, alleging that 23
U.S.C. 154 was unconstitutional and seeking injunctive and declaratory
relief against its enforcement.  The district court dismissed the
complaint, holding that conditioning the grant of federal highway
funds on adherence to a federal speed limit was a valid exercise of
Congress's spending power, Art. I, Section 8, Cl. 1, and did not
infringe on powers reserved to the States by the Tenth Amendment.
Pet. App. 43a-54a.

   On April 2, 1987, while the case was on appeal, Congress amended
the statute to permit the States to raise the maximum speed limit on
certain rural highways in the Interstate system to 65 mph.  Surface
Transportation and Uniform Relocation Assistance Act of 1987, Pub. L.
No. 100-17, Section 174, 101 Stat. 218, amending 23 U.S.C. 154.  /3/
The court of appeals held that this amendment did not moot the case,
accepting the State's position that the revised 55/65 mph limit would
still conflict with the 70 mph state limit.  Pet. App. 36a-37a n.1.
/4/

   a. In the court of appeals, the State's principal argument was that
the funding condition constituted "coercion," because the highway
funds to be withheld from any State with a speed limit violating the
condition would constitute up to 95% of the cost of highway projects.
/5/ The court of appeals, however, found it unnecessary to determine
whether the funding condition was coercive.  /6/ Pet. App. 13a-18a.
Instead, the court found that the purposes of the coercion inquiry are
adequately served if the funding condition could itself have been
enacted as a direct regulation.  In the court's words, "if the
congressional action passes muster under the Commerce Clause (or some
other non-Spending power), and the restraints of the Tenth Amendment,
* * * there can be no reason to fear that the federal government is
unconstitutionally intruding into areas of uniquely state concern."
Pet. App. 21a.  If Congress could achieve a national maximum speed
limit under the Commerce Clause, "it may also achieve that result
through the more gentle commands of the Spending Power." Pet. App.
18a.

   b. The court of appeals concluded that the federal government has
ample authority to establish a national speed limit under the Commerce
Clause.  Noting that Nevada's attempt to create a 70 mph speed limit
covered only a portion of I-80, which is part of the Interstate
highway system (Pet. App. 40a n.13), the court pointed out that "the
interstate highways, and the feeder roads that serve them, are the
arteries of national commerce" (Pet. App. 23a-24a), and that a federal
speed limit is rationally related to preserving safety on these roads
and conserving fuel.  Pet. App. 23a-28a.

   c. Turning to the question whether congressional action pursuant to
the Commerce Clause to establish a federal speed limit would violate
the Tenth Amendment, the court relied on Garcia v. San Antonio Metro.
Transit Auth., 469 U.S. 528 (1985), to conclude that "absent any
'extraordinary defect' in the national political process, Nevada's
forum for raising a claim of infringed sovereignty lies with the
legislature, not the judiciary." Pet. App. 30a (quoting South Carolina
v. Baker, 485 U.S. 505, 512 (1988)).  No such "extraordinary defect"
was claimed here.  Pet. App. 30a.

   Even leaving Garcia aside, the court of appeals concluded that a
national speed limit on interstate roads would not infringe any
integral state function, since "the control of roads and highways has
not traditionally fallen under plenary state control but under the
cooperative agreement of state, local, and federal officials." Pet.
App. 31a-32a.  Nor did the court accept petitioner's contention that a
national speed limit would "commandeer" the State's regulatory power,
see FERC v. Mississippi, 456 U.S. 742 (1982).  As the court explained:

         (T)he national speed limit requires the state police to
      enforce a standard only marginally different from the ordinary
      state rule.  The state regulatory machinery is not diverted from
      its regular duties but continues to enforce the identical type
      of rule it has traditionally implemented.  That the specific
      speed limit it now enforces results indirectly from a federal
      statute instead of exclusively from a state statute has little
      or nothing to do with the nature of the function performed by
      the state officers.

   Pet. App. 34a-35a.  See also South Carolina v. Baker, 485 U.S. at
513-515.  Thus, the court of appeals held that because enactment of a
national speed limit would be well within the power of Congress, the
funding condition at issue here is also a valid exercise of
congressional power.

                               ARGUMENT

   The decision below is correct and does not conflict with any
decision of this Court or any other court of appeals.  Review by this
Court is not warranted.

   1. In South Dakota v. Dole, 483 U.S. 203 (1987), this Court upheld
a federal statute that withheld a portion of a State's federal highway
funds if the State did not adopt a minimum drinking age of twenty-one.
 Holding that the statute was constitutional, the Court articulated
four limitations on the spending power.  The federal speed limit is
well within these limitations.

   First, the Court stated that "the exercise of the spending power
must be in pursuit of 'the general welfare.'" 483 U.S. at 207.  In
determining whether an exercise of the spending power is in the
"general welfare," courts must "defer substantially" to the judgment
of Congress.  Ibid.  The 55 mph funding condition plainly complies
with this restriction, since it was enacted in response to national
concerns about energy conservation and highway safety.  See S. Rep.
No. 1111, 93d Cong., 2d Sess. 17 (1974);  H.R. Rep. No. 1567, 93d
Cong., 2d Sess. 9-10 (1974).  /7/

   Second, the Court stated that Congress must condition its grants
"'unambiguously . . ., enabl(ing) the States to exercise their choice
knowingly, cognizant of the consequences of their participation.'"
Dole, 483 U.S. at 207 (quoting Pennhurst State School & Hosp. v.
Halderman, 451 U.S. 1, 17 (1981)).  This limitation is not at issue in
this case.

   Third, the Court read prior cases to "suggest() (without
significant elaboration) that conditions on federal grants might be
illegitimate if they are unrelated 'to the federal interest in
particular national projects or programs.'" Dole, 483 U.S. at 207
(quoting Massachusetts v. United States, 435 U.S. 444, 461 (1978)
(plurality opinion)).  In this case, as in Dole, "the condition
imposed by Congress is directly related to one of the main purposes
for which highway funds are expended -- safe interstate travel." 483
U.S. at 208.  Encouraging lower speed limits on the highways is also
directly related to the federal interest in conserving energy.

   Finally, the Court stated that "other constitutional provisions may
provide an independent bar to the conditional grant of federal funds."
Dole, 483 U.S. at 208.  However, that means only that the Spending
Power "may not be used to induce the States to engage in activities
that would themselves be unconstitutional." Id. at 210.  Here, as in
Dole, if the State were "to succumb to the blandishments offered by
Congress * * *, the State's action in so doing would not violate the
constitutional rights of anyone." Id. at 211.

   2. The Court in Dole also canvassed the possibility that "in some
circumstances the financial inducement offered by Congress might be so
coercive as to pass the point at which 'pressure turns into
compulsion.'" 483 U.S. at 211 (quoting Steward Machine Co. v. Davis,
301 U.S. 548, 590 (1937)).  Petitioner argues that there is coercion
here because if it refuses to comply with the prescribed maximum speed
limit, it will lose all its federal highway funds.  By contrast,
petitioner points out that only 5% of the federal highway funds
otherwise obtainable by the State were at issue in Dole.

   As the court of appeals properly determined, however, the purpose
of any coercion limitation on the spending power is not implicated if
Congress could directly mandate the conduct it seeks to encourage by
use of its spending power.  The obvious purpose of the coercion
limitation is to place some restriction on the use of federal funding
conditions to achieve goals beyond the power of Congress to achieve by
direct regulation.  See Fullilove v. Klutznick, 448 U.S. 448, 475
(1980) (opinion of Burger, C.J.).  This purpose has no relevance where
Congress could constitutionally impose its will by some means other
than the spending power.  Thus, as the court of appeals correctly
concluded, if direct regulation is allowable, then the threat to
withhold funds, which is at most "a lesser form of coercion," must
also be valid.  Pet. App. 20a.  /8/

   The two decisions of this Court relied upon by petitioner both
involved attempts to achieve results that may well have been beyond
Congress's power to achieve directly.  In Dole, the Court assumed
arguendo that the Twenty-First Amendment placed the imposition of a
national minimum drinking age beyond the regulatory authority of
Congress.  483 U.S. at 206.  And in United States v. Butler, 297 U.S.
1 (1936), the only case striking down a federal funding condition, the
parties agreed that the legislative scheme at issue was beyond the
direct regulatory power of Congress.  Id. at 63-64.  The Butler Court
itself phrased the coercion issue as whether a federal statute may
"purchase a compliance which the Congress is powerless to command."
Id. at 70 (emphasis added).

   In this case, in contrast, it is clear that Congress has
substantial power under the Commerce Clause to regulate safety and
fuel economy on interstate highways.  See Katzenbach v. McClung, 379
U.S. 294 (1964);  Heart of Atlanta Motel, Inc. v. United States, 379
U.S. 241, 258 (1964).  Indeed, such regulation falls well within the
traditional federal interest in safe use of the channels of interstate
commerce.  See 49 U.S.C. App. 2505 (Supp. IV 1986) and 49 U.S.C. 3102
(federal regulation of commercial motor vehicle safety);  45 U.S.C.
421 et seq. (federal regulation of railroad safety);  49 U.S.C. App.
1421 et seq. (federal regulation of aviation safety).  Therefore,
because Congress could act directly to achieve what it seeks
indirectly to encourage through the use of the spending power at issue
in this case, the inquiry into whether the funding condition at issue
here is coercive is unnecessary.

   3. Petitioner's request (Pet. 17) that the Court apply the
reasoning of National League of Cities v. Usery, 426 U.S. 833 (1976),
to this case in effect asks the Court to re-examine its decision in
Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985), in
which National League of Cities was overruled.  See also South
Carolina v. Baker, 485 U.S. 505, 512-513 (1988).  As the court of
appeals recognized (Pet. App. 31a-32a), however, control of highways
has traditionally been a cooperative effort of federal, state, and
local authorities.  Consequently, there is no reason to believe that
the result in this case would be any different under the "traditional
governmental functions" test of National League of Cities.  /9/

                              CONCLUSION

   The petition of a writ for certiorari should be denied.

   KENNETH W. STARR

      Solicitor General

   STUART M. GERSON

      Assistant Attorney General

   LEONARD SCHAITMAN

   ROBERT V. ZENER

      Attorneys

   JANUARY 1990

   /1/ Under the federal highway program, a state highway department
submits plans for each proposed project, which the Secretary must
approve before committing federal funds to support the project.  23
U.S.C. 106.

   /2/ See also 120 Cong. Rec. 30,820 (1974) (Sen. Stafford);  id. at
30,821 (Sen. Randolph);  id. at 30,861 (Sen. Montoya);  id. at 40,151
(Rep. Blatnick);  id. at 40,155 (Rep. Wright);  id. at 40,157 (Rep.
Clausen);  id. at 40,683 (Sen. Randolph);  id. at 40,908 (Rep.
Cleveland);  id. at 40,909 (Rep. Kluczynski);  id. at 40,912 (Rep.
Wright).

   /3/ Congress subsequently allowed States in some circumstances to
impose a 65 mph limit on certain rural, non-Interstate highways.  23
U.S.C. 154 note (Supp. V 1987).

   /4/ Paragraph 3 of the state statute provides for establishment of
a speed limit of up to 70 mph "(u)nless a national maximum speed limit
is set by the Federal Government at a speed greater than 60 miles per
hour." Nev. Rev. Stat. Section 484.369;  Pet. App. 63a.  Since the 65
mph limit applies only to certain rural highways, the Federal
Government has not established a "national maximum speed limit" that
is "greater than 60 miles per hour." Therefore, while the new 65 mph
limit reduces the practical importance of the dispute, we agree with
the State that the case is not moot.

   /5/ Under 23 U.S.C. 120, the federal share of approved highway
projects generally may not exceed 95% of the total cost of the
project.

   /6/ The court observed that the "elusive()" coercion test has been
"infrequently applied in federal case law, and never in favor of the
challenging party," Pet. App. 15a (citing Oklahoma v. Schweiker, 655
F.2d 401, 406 (D.C. Cir. 1981)).  Moreover, the court noted that the
determination as to whether the threatened withholding of federal
highway funds would be coercive raises a series of "unanswered
questions," such as whether the relevant inquiry is into the
percentage of programmatic funds lost, the percentage of the federal
share that is withheld, the proportion of the State's income that
would be required to replace the lost funds, the availability of
alternative funding, or the State's general willingness to impose
taxes comparable to those imposed by other States.  Pet. App. 15a-16a.

   /7/ In light of the "substantial deference" due to Congress'
determination of what is in the "general welfare," the Court has
"questioned whether 'general welfare' is a judicially enforceable
restriction at all," Dole, 483 U.S. at 207 n.2 (citing Buckley v.
Valeo, 424 U.S. 1, 90-91 (1976) (per curiam)).  In this light, the
State's claim (Pet. 14-15, 24-25) that the current speed limits of 65
mph in some rural areas and 55 mph in more populated areas do not
serve interests of safety and economy -- and thus do not serve the
"general welfare" -- is untenable.  Certainly, the fact that Congress
has decided that a 65 mph limit is reasonably safe and economical on
some rural highways does not give license to the courts to
second-guess its simultaneous decision that the same speed limit in
more populated areas would be both unsafe and uneconomical -- and
would therefore disserve the "general welfare."

   /8/ In other cases, funding conditions challenged under the Tenth
Amendment have been sustained despite the fact that noncompliance
would entail loss of all federal funds under the program involved.
North Carolina ex rel. Morrow v. Califano, 445 F. Supp. 532 (E.D.N.C.
1977) (3-judge court), aff'd, 435 U.S. 962 (1978) (loss of all funding
under more than 40 federal health assistance programs);  Alabama v.
Lyng, 811 F.2d 567 (11th Cir.), cert. denied, 484 U.S. 821 (1987)
(loss of all food stamp funds);  Oklahoma v. Schweiker, 655 F.2d 401,
413 (D.C. Cir. 1981) (loss of all Medicaid funds).  See also Pet. App.
15a-17a (discussing various factors, aside from percentage of federal
grant tied to the condition, that might be thought relevant to any
coercion inquiry).

   /9/ Petitioner cites two sources in support of its contention that
regulation of highways is a "traditional State function." Its reliance
on both is misplaced.  Far from recognizing an exclusive state power
over maximum rates of speed, the statute petitioner cites -- 23 U.S.C.
145 -- simply expresses Congress's decision to permit the States to
determine which highway projects shall be federally funded.  The
statute thus emphasizes precisely the cooperative federal and state
control over the highways on which the court of appeals relied;  it is
entirely consistent with Congress's determination in 23 U.S.C. 154
that federal funding would be available to a State only if it
conformed to the 55/65 mph speed limits.  See Pet. 11-12.  Nor do the
cases cited by petitioner (Pet. 12-13) that have adverted to the power
of the States to regulate their own highways support petitioner's
contention that States have exclusive constitutional power over their
highways.  Both cases cited by petitioner, Bibb v. Navajo Freight
Lines, Inc., 359 U.S. 520, 523 (1959), and Raymond Motor Transp., Inc.
v. Rice, 434 U.S. 429, 444 (1978), struck down state highway
regulations under the dormant Commerce Clause.  They thus necessarily
establish that there is a substantial federal interest -- exercisable
by Congress if it chooses to do so -- in regulation of the nation's
highways.  See Pet. App. 24a.