No. 96-1595 and 96-1596

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

STATE OF ARIZONA, ET AL.

v.

UNITED STATES OF AMERICA, ET AL.

STATE OF CALIFORNIA, ET AL.

v. 

UNITED STATES OF AMERICA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

WALTER E. DELLINGER
Acting Solicitor General

FRANK W. HUNGER
Assistant Attorney General

MARK B. STERN
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514 - 2217

---------------------------------------- Page Break ----------------------------------------

QUESTIONS PRESENTED

    1. Whether petitioners' contention that the federal
government has violated the Invasion Clause of Article IV,
Section 4 of the Constitution by failing to prevent the presence
of illegal aliens in the States of California and Arizona
presents a justifiable claim.
    2.  Whether the federal requirement that States must provide
emergency medical treatment for illegal aliens under the Medicaid
program if they are to receive federal Medicaid funds, or the
fact that the State incurs substantial costs in incarcerating 
illegal aliens who commit crimes within the State, violates the
Tenth Amendment.
    3.  Whether petitioners' claim that the Attorney General
should use a lump-sum appropriation earmarked for the general
enforcement of the immigration laws by the Immigration and 
Naturalization Service to reimburse States for the costs of
incarcerating illegal aliens for violation of state-law offenses
is subject to judicial review under the Administrative Procedure
Act.

(I)

---------------------------------------- Page Break ----------------------------------------

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

No. 96-1595

STATE OF ARIZONA, ET AL.

v.

UNITED STATES OF AMERICA, ET AL.

No. 96-1596

STATE OF CALIFORNIA, ET AL.

v.

UNITED STATES OF AMERICA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

OPINIONS BELOW

    The opinion of the court of appeals in No. 95-1596 (Pet.
App. 1-24. 1) is reported at 104 F.3d 1086.  The order of the
court of appeals in No. 95-1595 (95-1595 Pet. App. 1) is reported
at 104 F.3d 1095 (9th Cir. 1996) (table).  The opinion of the

___________________(footnotes)

    1  Except as otherwise indicated, references to "Pet. App."
are to the Appendix to the Petition in No. 95-1596.
 
---------------------------------------- Page Break ----------------------------------------

2

district court in No. 95-1595 (95-1595 Pet. App. 24-36) is not
reported.

JURISDICTION

    The judgments of the court of appeals in both cases were
entered on January 7, 1997.  The petitions for writs of
certiorari in both cases were filed on April 7, 1997.  The
jurisdiction of this Court is invoked under 28 U.S.C. 1254 (1).

STATEMENT

    1.a.  Petitioners in No. 95-1596 -- the State of California,
Governor Pete Wilson, the state director of finance, and
officials of State youth, correctional, and public health
agencies -- brought suit asserting a variety of constitutional
and statutory claims against the United States and federal
officials with regard to the migration of illegal aliens into
California.  Among other contentions, petitioners claimed that
the federal government's failure to prevent an influx of illegal
aliens into California constitutes a violation of the Invasion
Clause of the Constitution.  That Clause provides that the United
States shall "guarantee to every State in this Union a Republican
Form of Government, and shall protect each of them against
Invasion."  Art. 4, 4.
    Petitioners also alleged violations of the Tenth Amendment.
They claimed that the United States had unconstitutionally
conditioned California's receipt of federal Medicaid funds on the
State's provision and partial funding of emergency medical care
under the Medicaid program to needy illegal aliens.  Petitioners

---------------------------------------- Page Break ----------------------------------------

3

also claimed that federal immigration policy violates the Tenth
Amendment because it causes the State to incur the costs of
incarcerating illegal aliens who commit crimes within the State.
Pet. App. 15-17.
    Petitioners' complaint sought reimbursement for the State's
costs of providing emergency medical care, public education, and
incarceration to illegal aliens.  Petitioners also sought a
declaration that the Attorney General violated 8 U.S.C. 1365,
which authorizes distribution of appropriated funds to the States
to compensate them for the costs of incarcerating illegal aliens
convicted of state felonies, because she had failed to provide
petitioners with reimbursement out of funds that were available
but that had not been specifically appropriated for that purpose.
Pet. App. 8-11.  2
    b.  In No. 95-1596, the district court granted the federal
government's motion to dismiss petitioners' complaint under Fed.
R. Civ. P. 12 (b) (6).  Although the court rejected petitioners'
contention that the illegal migration of aliens into the United
States constitutes the sort of "invasion" that could trigger Art.
IV, 4, see Pet. App. 32-34, the court ultimately held that the
Invasion Clause claim presents "a non-justifiable, political
question solely in the hands of Congress and the Executive

___________________(footnotes)

    2  Section 1365 (a) provides:

       Subject to the amounts provided in advance in
    appropriations Acts, the Attorney General shall reimburse a
    State for the costs incurred by the State for the imprisonment
    of any illegal alien or Cuban national, who is convicted of a
    felony by such State.
       
------------------------------------------ Page Break ----------------------------------------

4

Branch."  Id. at 34-35.  The court explained that the
Constitution commits matters concerning immigration to Congress,
not the courts, and that in any event "there is simply no
judicially manageable standard to determine at what point a
migration becomes an invasion under Article IV."  Pet. App. 35.
    The district court also rejected petitioners' Tenth
Amendment claims.  Pet. App. 37-39.  The court held that the
statute conditioning a State's receipt of federal Medicaid funds
on its agreement to provide medical care for needy illegal
immigrants is a "valid condition" on receipt of federal funds
that "is not coercive for purposes of the Tenth Amendment."  Id.
at 37, 38.  The court noted that petitioners' argument that the
condition is invalid would lead to the unusual conclusion "that
the Federal Government couldn't even eliminate its allocation of
Medic[aid] funds because the states are dependent."  Ibid.  The
court rejected petitioners' claim that the United States is
responsible under the Tenth Amendment for their incarceration of
illegal aliens who commit crimes, "because the cost of
incarcerating illegal aliens stems not from federal law but from
the State's obligation to enforce its own law and its prosecution
of illegal aliens for state criminal offenses."  Id. at 41.
    Finally, the district court held that petitioners' claims
for reimbursement of the costs of educating, incarcerating, and
providing health care are in any event barred by sovereign
immunity.  The court noted that the Administrative Procedure Act,
5 U.S.C. 702, does not provide a waiver of the United States'

---------------------------------------- Page Break ----------------------------------------

5

sovereign immunity from monetary claims and that petitioners'
claims, though pleaded "as equitable and in the nature of
restitution and reimbursement," are "in fact claims for money
damages, against which [respondents] are immune."  Pet. App. 47-
48.
    2.a.  Petitioners in No. 95-1595 -- the State of Arizona,
Governor Fife Symington, III, and the directors of state
correctional and youth agencies -- brought a suit similar to that
brought by the California plaintiffs, asserting similar
constitutional and statutory claims against the United States and
federal officials with regard to the migration of illegal aliens
into Arizona.
    b.  In No. 95-1595, the district court rejected petitioners'
claims.  95-1595 Pet. App. 24-36.  With respect to the Invasion
Clause claim, the court held that "[petitioners'] challenge under
the Invasion Clause presents a political question best left to
the political branches."  Id. at 30.  The court noted that
"Congress possesses complete legislative authority over the
admission of aliens," id. at 29, and that "no judicially
manageable standards exist for the [c]ourt to apply to determine
if and when a migration of immigrants becomes an 'invasion,' " id.
at 30.  The court also rejected petitioners' Tenth Amendment
claim regarding the costs of incarcerating illegal aliens,
holding that "the [federal] Government has not 'commandeered'
Arizona's legislative process" and that "[t]he cost of
incarcerating illegal aliens results not from federal law but

---------------------------------------- Page Break ----------------------------------------

6

from Arizona's own decision to prosecute illegal aliens for
criminal offenses defined by Arizona law."  Pet. App. 32.
    The court also held that sovereign immunity barred
petitioners' claim for reimbursement under 8 U.S.C. 1365.  Pet.
App. 33-34.  With respect to petitioners' claims that they are
entitled to funds that had not been specifically appropriated
under 8 U.S.C. 1365 to pay the costs of incarcerating illegal
aliens, the court noted that the funds sought had been
appropriated under lump sum appropriations bills.  The court
therefore held that the decision regarding allocation is
committed to agency discretion and not subject to judicial
review.  Pet. App. 34-35.
    3.  The court of appeals affirmed in the California case, in
a published opinion.  Pet. App. 1-24.  The court concluded that
California's Invasion Clause claim is nonjusticiable.  Id. at 11-
13.  The court explained that "[f]or this [c]ourt to determine
that the United States has been 'invaded' when the political
branches have made no such determination would disregard the
constitutional duties that are the specific responsibility of
other branches of government, and would result in the [c]ourt
making an ineffective nonjudicial policy decision."  Id. at 12.
The court also noted that "there are no manageable standards to
ascertain whether or when an influx of illegal immigrants should
be said to constitute an invasion."  Ibid.
    The court of appeals affirmed the dismissal of petitioners'
Tenth Amendment claims on the merits.  With respect to the
 
---------------------------------------- Page Break ----------------------------------------

7

Medicaid-bases claims, the court concluded that, under settled
law, the conditioning of Medicaid funds on California's agreement
to provide medical care for needy illegal immigrants was not
"coercion" of the State that could violate the Tenth Amendment.
Pet. App. 15-16.  Noting that "no party challenging the
conditioning of federal funds has ever succeeded under the
coercion theory," id. at 15, the court held that the present
record failed to disclose the kind of "extraordinary"
circumstances under which such coercion could be found.  Id. at
15.  With respect to the Tenth Amendment claims based on the
costs of incarcerating illegal aliens, the court held that,
"because no federal mandate requires California to pursue a penal
policy resulting in" the State's incurring costs to incarcerate
illegal aliens, petitioners failed to allege a Tenth Amendment
claim based on the fact that the State incurred those costs.  Id.
at 17.
    With respect to petitioners' claim to reimbursement from
lump-sum appropriations for expenses of incarcerating illegal
aliens, the court agreed with the district court that "the
Attorney General's decision to allocate monies generally
appropriated to her in a lump-sum for the administration of the
immigration laws for the specific purpose of reimbursing a State
for the costs of incarcerating illegal aliens under 8 U.S.C.
1365 is 'committed to agency discretion by law' and is not
subject to judicial review under the Administrative Procedure
Act, 5 U.S.C. 701 (a) (2)."  Pet. App. 20 (citing Lincoln v. Vigil,

---------------------------------------- Page Break ----------------------------------------

8

508 U.S. 182, 192 (1993)).
    4.  The court of appeals affirmed in the Arizona case in a
brief order (95-1595 Pet. App. 1-2), "[f]or the reasons set forth
in" the court's opinion in the California case.  See also Pet.
App. 7 n.1 (explaining that the substantive issues were addressed
in the opinion in the California case because California
presented claims in addition to those presented by Arizona).

ARGUMENT

    The decision of the court of appeals is correct and is
consistent with rulings of the Second, Third, Fifth and Eleventh
Circuits, all of which have affirmed dismissal of similar claims.
Further review is not warranted.
    1.  Petitioners contend (95-1596 Pet. 10-25; 95-1595 Pet.
16-18, 21-23) that by failing to halt the influx of illegal
immigrants into California and Arizona, the federal government
has breached its constitutional duty to "protect each [State]
against Invasion."  U.S. Const. Art. IV, 4.  As both district
courts and the court of appeals concluded, that claim presents a
nonjusticiable political question.  Pet. App. 11-13, 34-35.
    The Constitution provides no "judicially discoverable and
manageable standards for resolving" petitioners' claim.  Baker v.
Carr, 369 U.S. 186, 217 (1962).  In particular, the Constitution
provides not criteria for determining when, if ever, a peacetime
influx of migrants should be deemed to have risen to the level of
an "invasion," or for assessing the adequacy of the federal
government's response to such a threat.  Adjudication of such a

---------------------------------------- Page Break ----------------------------------------

9

claim would require a court to "review the * * * entire
enforcement of Federal immigration laws including the enforcement
methods used and their effectiveness, determine the
reasonableness of budget allocations, determine whether more
resources are available and, if so, decide how those additional
resources should be allocated."  Chiles v. United States, 874 F.
Supp. 1334, 1344 (S.D. Fla. 1994), aff'd 69 F.3d 1094 (11th Cir.
1995), cert. denied, 116 S. Ct. 1674 (1996).  The Constitution
provides no yardstick for determining when the federal
government's indisputably massive expenditures on immigration
control should be deemed a sufficient response under the Invasion
Clause (even if we assume, arguendo, that the Clause applies in
this setting), and it provides no means for determining what
additional efforts should be compelled.
    In addition, there is a "textually demonstrable
constitutional commitment of the issue [of immigration and its
control] to a coordinate political department."  Baker v. Carr,
369 U.S. at 217.  As this Court held in Fiallo v. Bell, 430 U.S.
787, 792 (1977), "over no conceivable subject is the legislative
power of Congress more complete than it is over the admission of
aliens."  See also Mathews v. Diaz, 426 U.S. 67, 81-86 (1976)
(Constitution commits to the federal government the exclusive
power to control immigration).  Admission of aliens into the
United States and control over the borders are matters firmly
entrusted to the political branches.  And protection of the
United States from illegal immigration implicates matters of

---------------------------------------- Page Break ----------------------------------------

10

foreign policy and defense into which courts will intrude only
with the greatest reluctance.  See, e.g., Barclays Bank PLC v.
Franchise Tax Bd. of Cal., 512 U.S. 298, 327, 330-331 (1994);
Sale v. Haitian Centers Council, Inc., 509 U.S. 155, 188 (1993).
    Finally, as the court of appeals recognized (Pet. App. 13),
petitioners' claim misapprehends the intent of the Invasion
Clause.  The Constitution commits the national defense to the
United States, and the Invasion Clause recognizes that it is the
United States' role to protect against invasion.  See also Art.
I, 8, cl. 15 (listing among enumerated powers of Congress "To
provide for calling forth the Militia to execute the Laws of the
Union, suppress Insurrections and repel Invasions").  The
conclusion that the Constitution refers to "invasion" in the
sense of a hostile, presumably military invasion also is
supported by its use in Art. I, 9, cl. 2, which provides that
"[t]he Privilege of the Writ of Habeas Corpus shall not be
suspended, unless when in Cases of Rebellion or Invasion the
public Safety may require it."  3
    2.a.  The California petitioners contend (95-1596 Pet. 25-
29) that their expenditures on emergency medical care for illegal
aliens pursuant to the Medicaid program, coupled with the federal

___________________(footnotes)

    3  That understanding of "invasion," as used in the
Constitution, is fully consistent with 18th century usage.  Dr.
Johnson defined "invasion" as a "[h]ostile entrance upon the rights
or possessions of another; hostile encroachment."  S. Johnson, A
Dictionary of the English Language (1755).  Similarly, Dr.
Johnson's primary definition of "invade" is "[t]o attack a country;
to make an hostile entrance.  He will invade them with troops."
Id. (emphasis in original).

---------------------------------------- Page Break ----------------------------------------

11

government's failure to halt all illegal immigration, contravenes
the Tenth Amendment.  The court of appeals correctly held that
petitioners failed to state a claim under the Tenth Amendment.
    Under this Court's Tenth Amendment jurisprudence, "Congress
may not simply 'commandee[r] the legislative processes of the
States by directly compelling them to enact and enforce a federal
regulatory program.' "  New York v. United States, 505 U.S. 144,
161 (1992) (quoting Hodel v. Virginia Surface Mining &
Reclamation Ass'n, 452 U.S. 264, 288 (1981)).  See also United
States v. Lopez, 115 S. Ct. 1624, 1642 (1995) (Kennedy, J.,
concurring) (New York v. United States involved "a formal command
from the National Government directing the State to enact a
certain policy").  Petitioners, however, identify no federal
directive to the States regarding the treatment of illegal
aliens, much less a directive that would commandeer the State's
legislative or policy-making apparatus.  The federal immigration
policies at issue in this case do not require petitioners to
enact or enforce a federal regulatory program.
    The fact that the State may obtain federal Medicaid funds
only subject to the condition that it provide emergency medical
care under the Medicaid program to needy illegal aliens is not an
unconstitutional federal directive to the States that
"commandeers" the State's legislative or policy-making
apparatus.  4.  Medicaid is a voluntary federal spending program in

___________________(footnotes)

    4  States choosing to participate in the Medicaid program are
reimbursed with federal funds for a percentage of their costs in
providing medical services to the needy.  See 42 U.S.C. 1396, et

---------------------------------------- Page Break ----------------------------------------

12

which States may decline to participate.  Wilder v. Virginia
Hosp. Ass'n, 496 U.S. 498, 502 (1990); Harris v. McRae, 448 U.S.
297, 301 (1980).  In exercising its powers under the Spending
Clause, U.S. Const. Art. I, 8, Cl. 1, Congress may "attach
conditions on the receipt of federal funds."  South Dakota v.
Dole, 483 U.S. 203, 206 (1987).  Federal actions that "encourage"
or "provide incentives" for States to adopt certain policies do
not violate the Tenth Amendment.  See New York v. United States,
505 U.S. at 174-176; see also Hodel v. Virginia Surface Mining &
Reclamation Ass'n, 452 U.S. at 292 n.33 (even if the statute's
"requirements will have a measurable impact on [the State's]
economy, this kind of effect, standing alone, is insufficient to
establish a violation of the Tenth Amendment").  Although those
conditions "may influence a State's legislative choices," such
influence does not violate the Tenth Amendment.  New York, 505
U.S. at 167.  See also id. at 171-173; Oklahoma v. Civil Serv.
Comm'n, 330 U.S. 127, 142-44 (1947).
    Petitioners argue (95-1595 Pet. 27) that, as a practical
matter, California would not make the decision to forgo federal
Medicaid funds and that the requirements of the Medicaid program
thus constitute impermissible coercion.  But "to hold that motive
or temptation is equivalent to coercion is to plunge the law in

___________________(footnotes)

seq.  States are reimbursed for medical services provided to
illegal aliens, but only for those services necessary to care for
emergency conditions.  42 U.S.C. 1396b (v).  Concomitantly, a state
that wishes to receive Medicaid funds must provide emergency (but
not non-emergency) medical services to illegal aliens.  42 C.F.R.
440.255 (c).

---------------------------------------- Page Break ----------------------------------------

13

endless difficulties."  Dole, 483 U.S. at 211 (quoting Stewart
Mach. Co. v. Davis, 301 U.S. 548, 589-590 (1937)).  California
has voluntarily elected to participate in the Medicaid program,
presumably concluding that its benefits outweigh its costs.  As
the district curt observed, petitioners' "acceptance of the
Federal Government's 30 billion Medicaid grant is conditioned on
California spending 1.7 billion for emergency Medicaid to
illegal aliens."  Pet. App. 38.  California may not evade those
costs by characterizing them as the product of unlawful coercion.
    b.  The Arizona petitioners contend (95-1594 Pet. 19, 20)
that the federal government has "impermissibly shift[ed] the
burden of implementing its immigration policy onto the State" by
requiring the State, "at no economic or political cost to the
federal government, [to] retain thousands of illegal inmates in
its criminal justice system."
    The court of appeals correctly held (Pet. App. 15) that
petitioners failed to state a claim under the Tenth Amendment.
The federal government has issued no directive to the States
regarding the incarceration of illegal aliens, much less a
directive that would commandeer the State's legislative or
policy-making apparatus.  The federal immigration policies at
issue here are administered by federal agencies; their
implementation does not require Arizona to enact or enforce a
federal regulatory program.
    As the court of appeals recognized, a State cannot properly
premise a Tenth Amendment claim on its decision to expend

---------------------------------------- Page Break ----------------------------------------

14

resources to deal with problems created by illegal aliens within
the State's borders.  The Tenth Amendment provides a shield
against impermissible federal directives, not a sword to compel
federal action.  Concerns of the kind presented here by Arizona
are dealt with through the political process.  And, as noted
below, see p. _, infra, the political process has indeed
resulted in a massive commitment of federal resources to the
problem of illegal aliens incarcerated by the States for
violation of state law.
    3.  Petitioners in the Arizona case argue (95-1595 Pet. 13-
16) that they are entitled to a declaration that, in addition to
any funds that Congress may specifically appropriate under 8
U.S.C. 1365 to reimburse the States for their costs of
incarcerating illegal aliens, various lump-sum congressional
appropriations are also available to provide funds for that
purpose.
    Under 8 U.S.C. 1365, the Attorney General is authorized to
reimburse the States for the costs of incarcerating illegal
aliens convicted of state crimes.  Section 1365, however, does
not appropriate any funds, and it is expressly made "[s]ubject to
the amounts provided in advance in appropriation Acts."  8 U.S.C.
1365(a).  Congress enacted a specific appropriation of 130
million under Section 1365 for Fiscal Year 1995.  Department of
Justice Appropriations Act of 1995, Title VIII of Pub. L. No.
103-317, 108 Stat. 1724, 1778.  See State Criminal Alien
Assistance Program, 59 Fed. Reg. 50830, 50833 (1994).  For Fiscal

---------------------------------------- Page Break ----------------------------------------

15

Year 1994, however, as for previous years, Congress appropriated
no monies for distribution pursuant to 8 U.S.C. 1365.
    Petitioners argue (95-1595 Pet. 13-16) that the Attorney
General should have been required to distribute to the States
pursuant to 8 U.S.C. 1365 (a) monies from the lump-sum
appropriation made to the INS for salaries and expenses in fiscal
year 1994.  The court of appeals properly rejected that claim.
By its terms, Section 1365 (a) limits the Attorney General's
authority to distribute monies to "amounts provided in advance in
appropriation Acts."  8 U.S.C. 1365 (a).  Moreover, the court of
appeals correctly reasoned that, even assuming that the Attorney
General would have authority to make the distribution that
petitioners sought, her decision not to use funds from lump-sum
appropriations for purposes described in Section 1365 (a) would be
committed to agency discretion by law.  Pet. App. 17.  That
conclusion is fully consistent with this Court's decision in
Lincoln v. Vigil, 508 U.S. 182 (1993), in which the Court
emphasized that the courts have "no leave to intrude" on an
agency's allocation of a lump-sum appropriation, as long as the
agency acts "to meet permissible statutory objectives."  Id. at
193.  The Attorney General's use of funds appropriated for INS
salaries and expenses for the very purposes identified by
Congress does not give rise to a reviewable claim.
    Petitioners' contention is particularly anomalous in light
of the fact that Congress has appropriated large sums in the
years since this suit was filed for the specific purpose of

---------------------------------------- Page Break ----------------------------------------

16

helping States and localities deal with illegal aliens
incarcerated for violations of local law.  In the Violent Crime
Control and Law Enforcement Act of 1994, Congress created a new
statutory mechanism for that purpose and authorized amounts to be
appropriated by Congress for Fiscal Year 1996 and following
years.  See P.L. 103-322, 20301 (a), 108 Stat. 1824, adding 8
U.S.C. 1252 (j) (5).  Congress appropriated a total of 500 million
to fund section 1252 (j) in both Fiscal Year 1996 and Fiscal Year
1997.  5
    4.  The ruling of the court of the appeals is consistent
with that of the four other courts of appeals that have addressed
similar claims.  See Chiles v. United States of America, 69 F.3d
1094 (11th Cir. 1995), cert. denied, 116 S. Ct. 1674 (1966)
(rejecting Invasion Clause and Tenth Amendment claims); Padavan
v. United States, 82 F.3d 23 (2d Cir. 1996) (same); New Jersey v. 
United States, 91 F.3d 463 (3d Cir. 1996) (same); Texas v. United
States, 106 F.3d 661 (5th Cir. 1997) (rejecting Tenth Amendment
claims).  The Court denied review in the Chiles case last Term.

___________________(footnotes)

    5  For Fiscal Year 1996, Congress appropriated 300 million
for Section 1252 (j).  Balanced Budget Down Payment Act, II, Title
I, Violent Crime Reduction Programs, State and Local Law
Enforcement Assistance.  142 Cong. Rec. H3846 (Apr. 25, 1996).
Congress also authorized an appropriation of an additional 200
million from the Violent Offender Incarceration and Truth-In-
Sentencing Incentive Grants established by the crime bill.
Balanced Budget Down Payment Act of 1994, Title II, 114 (a).  142
Cong. Rec. H3846.  For Fiscal Year 1997, Congress appropriated
330,000,000 "for the State Criminal Alien Assistance program, as
authorized by section 242 (j) of the Immigration and National Act."
Pub. L. No. 104-208, 110 Stat. 3009 at 63.  In addition, Congress
provided that "170,000,000 shall be available for payments to
States for incarceration of criminal aliens."  Id. at p.64.

---------------------------------------- Page Break ----------------------------------------

17

There is no reason for a different disposition here, especially
in light of the intervening decisions of other courts of appeals
reaching the same result.

CONCLUSION

    The petitions for writs of certiorari should be denied.
    Respectfully submitted.

WALTER E. DELLINGER
Acting Solicitor General

FRANK W. HUNGER
Assistant Attorney General

MARK B. STERN
Attorney

JUNE 1997