William H. Rehnquist: We will hear arguments next in South Dakota against Elizabeth H. Dole, Secretary, United States Department of Transportation. Mr. Tellinghuisen, you may proceed whenever you are ready.
Roger A. Tellinghuisen: Mr. Chief Justice, and may it please the Court, the issue in this case is whether or not Congress may condition the receipt of highway funds upon a state having in effect the 21-year-old drinking age. In 1984 Congress enacted 23 USC Section 158. Section 158 of that Act conditions a receipt of highway funds upon a state having in effect a 21-year-old drinking age for all alcoholic beverages. The Act prohibits or mandates that the Secretary of Transportation shall not distribute 5 percent of a state's highway funds if it is not in compliance for Fiscal Year 1987, and it further mandates that the Secretary will withhold 10 percent of those funds for each and every year thereafter that the state has failed to comply. South Dakota, like every other state in the nation, is a recipient of Federal highway funds under the programs referred to in Section 158.
Sandra Day O'Connor: General Tellinghuisen, would you explain whether you think this case might be moot now? South Dakota has changed the law, as I understand it.
Roger A. Tellinghuisen: That's correct, Your Honor. What I would point out to the Court is that in the last legislative session, recognizing that South Dakota, not unlike any other state in the Union, is dependent upon these funds, adopted a 21-year-old drinking age that will not go into effect until April 1st of 1988.
Sandra Day O'Connor: So it still has a year or so to run, a year to run?
Roger A. Tellinghuisen: That's correct.
Sandra Day O'Connor: Under the old system.
Roger A. Tellinghuisen: Yes. Right now South Dakota still permits 19 and 20-year-olds to consume low point beer.
Sandra Day O'Connor: And there are Federal funds at issue, so it is saved from mootness.
Roger A. Tellinghuisen: That's correct, Your Honor.
Harry A. Blackmun: Then am I not correct the statute doesn't go into effect at all if you prevail here?
Roger A. Tellinghuisen: That's correct. The legislature in enacting the law that it passed this legislative session specifically provided within the statute itself that the legislation would repeal itself upon either a favorable decision from this Court or upon Congressional action repealing the mandatory withholding provisions of Section 158.
Harry A. Blackmun: We know how to do things out in the upper midwest.
Roger A. Tellinghuisen: That's correct. For the past 48 years South Dakota has allowed persons younger than age 21 to consume low point beer, ever since South Dakota has adopted an approach that not only recognizes the social concerns over alcohol but has gradually introduced its young people to alcoholic beverages. Twice since 1939 we have raised our minimum drinking age for low point beer from 18 to 19, and since the repeal of state prohibition in 1934 we have required all persons to be at least 21 years old before they would be allowed to consume alcoholic beverages other than low point beer. South Dakota has likewise enacted and strictly enforced drinking driver statutes, and over the course of the last few years through the strict enforcement of those statutes we have effectuated a 30 percent reduction in the number of drinking-related fatalities on our highways. In September of 1984 we filed a complaint in District Court, seeking a declaration that Section 158 was unconstitutional and further requesting an injunction prohibiting the Secretary of Transportation from enforcing the provisions of that statute. The District Court dismissed and the Court of Appeals affirmed on the basis that South Dakota's complaint failed to state a claim upon which relief can be granted. Just by procedural... or just by a little bit of history, as this Court is aware, in 1933 this nation adopted the Twenty-First Amendment, thereby repealing 16 years of national prohibition and reserving to the states the power of choice as to whether or not to allow the importation of alcoholic beverages within their own states. This Court has also recognized that a state has the absolute power to prohibit totally the sale of alcohol within its own borders pursuant to the Twenty-First Amendment, and this Court has equally recognized that a state has broad power under the Twenty-First Amendment to regulate the times, places, and circumstances under which alcohol may be sold. As this Court stated in New York State Liquor Authority versus Balianca, "It is equally well recognized that a state has broad power under the Twenty-First Amendment to regulate the times, places, and circumstances under which liquor may be sold. " Put another way, this Court stated in California Liquor Dealers v. Midcal that the Twenty-First Amendment grants the states virtually complete control over whether to permit importation or sale of liquor and how to structure the liquor distribution system. In resolving conflicts between state alcohol regulations and Federal policies, the Court has first sought to determine whether the state regulation that was involved implicates what this Court has generally characterized as a Section 2 core power. The Court has suggested that when a state has attempted to directly regulate a Section 2 core power under the Twenty-First Amendment that it will prevail irrespective of its conflict with a contrary Federal policy. The state would submit to the Court, recognizing that this Court has never formally offered a clear delineation of what constitutes a Section 2 core power, that the ability of a state to determine for its own inhabitants or for its own... the people found within its borders, the age at which a person will be allowed to consume an alcoholic beverage is central to the power reserved to the states under the Twenty-First Amendment. This Court, as I indicated earlier, recognized that a state has the absolute power of prohibition--
Harry A. Blackmun: Of course, South Dakota can still continue to do that, can't it?
Roger A. Tellinghuisen: --That's correct, Your Honor. However, the Constitutionally impermissible part of Congress's plan is that it forces South Dakota to make a choice of whether or not it will freely exercise the powers given to it under the Twenty-First Amendment or whether it will suffer--
William H. Rehnquist: You can finish your answer at 1:00 o'clock, Mr. Tellinghuisen.
Roger A. Tellinghuisen: --Thank you, Your Honor.
William H. Rehnquist: Please proceed, Mr. Tellinghuisen.
Roger A. Tellinghuisen: Mr. Chief Justice, and may it please the Court, in direct response to Justice Blackmun's question concerning the ability of the states to still have a choice even in the face of Section 158, I would submit to the Court that that is erroneous or that assumption is in error for two reasons. One, it presupposes that the Federal Government has the ability to regulate in the face of the Twenty-First Amendment the age at which a state such as South Dakota sets its minimum drinking age, and secondly, it is in direct contradiction to the legislative history that surrounds the original amendment in its debate over what was then contained as a Section 3 to the amendment, which would have given Congress concurrent power to regulate or prohibit the sale of intoxicating liquors where those liquors were to be drunk on the premises sold. At that time, unlike the inconsistencies that were present in the debate over Section 2, there was no inconsistency in that regard. It was the intent of Congress by deletion of Section 3 to remove the Federal Government from the area of alcohol regulation within a state from which it had in the opinion of Congress and in the opinion of this Court had trespassed.
William H. Rehnquist: Well, Mr. Tellinghuisen, you think the Twenty-First Amendment went further than just to deal with the commerce power of Congress then?
Roger A. Tellinghuisen: Yes, I do, Your Honor, and I rely on this Court's decisions in addressing the Twenty-First Amendment when this Court has said that the Twenty-First Amendment, while it is transparently clear that it operated as a limitation upon the commerce clause, it equally recognized that the Twenty-First Amendment gave to the states broad powers to regulate in the area of the times or places or even the sale of liquor, in other words, the liquor distribution system within that state.
William H. Rehnquist: Well, don't you think they would have had that just under traditional reserve power of states?
Roger A. Tellinghuisen: Well, I would certainly maintain that, Your Honor. I recognize, however, this Court's decisions in regards to the commerce clause in the face of the Tenth Amendment, and that the Tenth Amendment does not in and of itself operate as a limitation on Congress's power. I think the distinction here is that in the face of the Twenty-First Amendment Congress intended and the states upon ratification of the Amendment assumed that they were going to be given the power to first off determine whether they would permit the sale of alcohol at all, and if they chose to, to enforce the regulations surrounding the sale of that alcohol.
William H. Rehnquist: And here you say that because Congress is cutting off 5 percent of South Dakota's highway fund money, South Dakota is not able to do what it wants?
Roger A. Tellinghuisen: That's correct, and I am suggesting... what I am suggesting to the Court is that the presentation of the choice irrespective of the amount of money involved is what... is the impermissible derogation of the state's powers under the Twenty-First Amendment.
William H. Rehnquist: There are a lot of cases that have sustained the Congress's spending power, Steward Machine Company, a long line of cases.
Roger A. Tellinghuisen: That is correct, Your Honor. We are certainly not unmindful of those cases, and for the Court to rule in the state's favor on this case would not require this Court to overrule any of those prior cases concerning limitations or claimed limitations on Congress's power under the spending clause. In the Steward Machine case, for instance--
Sandra Day O'Connor: You mean provided we gave the Twenty-First Amendment the broader preemption that you would argue should be given. What if we think that the Twenty-First Amendment only took away Congress's power under the commerce clause?
Roger A. Tellinghuisen: --I would say, Your Honor, that if the Court were to find that the operation of the Twenty-First Amendment only prevented Congress from interfering with a state's right to allow into the state the importation of alcohol, that certainly would put us in a more difficult position, but that is not what this Court has recognized in, for instance, Capital Cities Cable versus Crisp. The Court in that case, if I may just briefly recite from that opinion, the Court stated, "In contrast to state regulation governing the conditions under which liquor may be imported or sold within the state, the application of Oklahoma's advertising ban to the importation to distant signals by cable television operators engages only indirectly the central power reserved by the Twenty-First Amendment, that of exercising control over whether to permit importation or sale of liquor and how to structure the liquor distribution system. " Following that line of reasoning that this Court has adopted not only in Capital Cities Cable v. Crisp but in Midcal and again referred to in this Court's most recent decision dealing with the Twenty-First Amendment, 324 Liquor versus Duffy. The states are given this broad power in areas not only related exclusively to the decision of whether or not to permit importation but they are given the power to regulate the very liquor that it allows under its ability to allow importation.
Antonin Scalia: It didn't say that. It said to structure the distribution system.
Roger A. Tellinghuisen: I'm sorry.
Antonin Scalia: That is not quite what the quote you read said. It said the state's power to structure the distribution system, which is much more closely tied to the importation. One imports and one distributes. It is very easy to say that the structure of the distribution system has a very close tie to the importation, which is what the Twenty-First Amendment specifically addresses.
Roger A. Tellinghuisen: Your Honor, what I would also--
Antonin Scalia: This has nothing to do with the distribution system.
Roger A. Tellinghuisen: --Well, in effect it does, Your Honor. I guess I would argue that point in that the distribution system of alcohol is certainly directly related to or is one and the same of determining how it can be sold or distributed within the state, and the setting of a minimum drinking age is basic to that consideration.
Antonin Scalia: You think the setting of... well, all right.
Antonin Scalia: You are going to be arguing later when you address the scope of the Federal Government's commerce power that one can't stretch things to infinity, and it seems to me you are arguing a very broad notion of what importation includes and distribution includes. It includes even fixing the qualifications for purchasing.
Roger A. Tellinghuisen: Yes, I would argue that, and in part our reliance, Your Honor, is based upon this Court's decision in New York State Liquor Authority versus Balianca, where the Court stated, "It is equally well recognized that a state has broad power under the Twenty-First Amendment to regulate the times, places, and circumstances under which liquor may be sold. " The Congressional--
Byron R. White: You think the Federal Government could keep you from selling liquor to a certain defined group of people like Indians?
Roger A. Tellinghuisen: --No, I don't believe they could, Your Honor. I am not sure I understand the question correctly. Could the Federal Government require us not to sell to a specific group of people?
Byron R. White: Like the Indians. Um-hm.
Roger A. Tellinghuisen: I would say that, no, it could not.
Byron R. White: And so therefore using the spending power for that purpose is just as illegal. Is that it?
Roger A. Tellinghuisen: I would suggest that that is the case.
Byron R. White: Under the Twenty-First Amendment.
Roger A. Tellinghuisen: Yes, sir. Going back to the Congressional intent behind the adoption of the Twenty-First Amendment, it was well recognized in 1933 as well as now the national prohibition, the national policy of--
Byron R. White: Well, do you think the Federal Government could keep you from... a state-operated liquor store, for example, selling on military reservations?
Roger A. Tellinghuisen: --I think this Court's holdings, for instance, in the Collins v. Yosemite... Yosemite... excuse me... case would suggest just that, and I don't have a problem with that.
Byron R. White: But you think they couldn't... the Federal Government couldn't keep... couldn't forbid sales to servicemen off the base?
Roger A. Tellinghuisen: Yes, I would maintain that. And the point, the distinguishing factor, Your Honor, between the example that you cite and the premise that we are advocating is that in the context of a military reservation the state cannot impose its will upon an area that is not under its jurisdiction.
Byron R. White: xxx for Federal money.
Roger A. Tellinghuisen: I would concede that. I would concede that, and that brings us to the point, the question has often been stated in another way. Could Congress just refuse to just give this money to the states in the first instance, and that is... the answer to that must be yes. We have no actual entitlement to money in the first instance.
John Paul Stevens: Mr. Attorney General, could I go... I want to be sure I understood your answer correctly. I think Justice White asked you... maybe this is a variation of the question. You say Congress passed a statute saying it shall be unlawful for any purveyor of liquor, either in a bar or so forth, to sell liquor to a uniformed soldier. You say that would be unconstitutional.
Byron R. White: That's what you said. You can think it over if you want to. 0 [Generallaughter.]
Roger A. Tellinghuisen: Well, okay.
John Paul Stevens: And I was going to... Let me give you another one that is similar. Supposing they required all interstate truck-drivers and bus drivers to wear some kind of an identifying cap or uniform of some kind and they said, you may not sell liquor to any of those drivers of interstate vehicles. Would that be unconstitutional?
Roger A. Tellinghuisen: Are we assuming that Congress is going to condition the receipt of money on--
John Paul Stevens: No, just say flatly, it is against a Federal statute enacted for the purpose of protecting safety on the highways to sell liquor to any uniformed driver of a truck or a bus.
Roger A. Tellinghuisen: --I would submit that it would be unlawful.
John Paul Stevens: It would be unconstitutional?
Roger A. Tellinghuisen: Yes, because again, Your Honor, it goes to the every heart of the Twenty-First Amendment.
Antonin Scalia: And you would have to say the same about the soldier.
Roger A. Tellinghuisen: Yes, I would, Your Honor.
Byron R. White: If you lose on that, you lose on the one in the case you are arguing?
Roger A. Tellinghuisen: No, I don't believe so, because our case that we are arguing is much more narrowly defined. You know, as this Court has noted in many of its opinions there will be time enough to address those types of questions. We are suggesting that the blanket provision requiring the states to adopt a uniform drinking age in the face of the Twenty-First Amendment takes away from the state the ability to make those decisions for itself. And that was what Congress and this nation was addressing when it adopted... or repealed prohibition.
John Paul Stevens: Let me take it one step further. What about airline pilots in uniform? The Federal Government couldn't even prevent sale of liquor to them?
Roger A. Tellinghuisen: I would have to steadfastly maintain that they could not, Your Honor.
Byron R. White: You are consistent. Of course I take it you argue that you should win even if there were no Twenty-First Amendment.
Roger A. Tellinghuisen: I am not going to go so far as to say that, Your Honor. I think that it could be suggested that Congress under its commerce clause powers could impose a regulation upon the states which it otherwise could not do in the face of the Twenty-First Amendment.
Byron R. White: I thought you were arguing that these conditions on receipt of Federal money were invalid in themselves.
Roger A. Tellinghuisen: I am arguing--
Byron R. White: Wholly aside from the Twenty-First Amendment. Don't you argue that?
Roger A. Tellinghuisen: --No, I don't. I suggest in our brief that the conditions are invalid outside the context of the Twenty-First Amendment from the standpoint that they are coercive.
Sandra Day O'Connor: Well, do you disavow the argument then submitted by the National Conference of State Legislatures in their amicus brief to the effect that there has to be a substantial relationship between the condition imposed on a grant and the spending of Federal money?
Roger A. Tellinghuisen: Your Honor, I am not in a position to suggest to this Court that I disagree with that proposition.
Sandra Day O'Connor: Well, you certainly are. You can say it is right or it is wrong.
Byron R. White: You just did a while ago.
Roger A. Tellinghuisen: What I am suggesting is that I am not prepared to address that issue in light of the fact that we have the Twenty-First Amendment. I think it would be--
Sandra Day O'Connor: What if you lose on that, and this Court is having to grapple with it? Is that an argument you make or is it not?
Roger A. Tellinghuisen: --It is from the standpoint that Congress's power under the commerce clause is not without limitations, as this Court has noted, for instance, in Lawrence County v. Lead-Deadwood School District. And we would submit to the Court that the Tenth Amendment would operate as a bar upon Congress to impose these types of conditions which in effect are coercive upon the states, and that are being used... is being attached for a purpose not related to--
Sandra Day O'Connor: That is the same argument. Well, the argument made in that amicus brief is not one of coercion at all. That is not the thrust of it.
Roger A. Tellinghuisen: --The argument that is made in the amicus brief is one that the purpose for which the condition is attached is not proper, and I guess I would just have to maintain that I am not prepared to argue that particular fine point at this time because we are not dealing outside the scope of the Twenty-First Amendment.
William J. Brennan, Jr.: xxx suggest then, Mr. Attorney General, that the Tenth Amendment at least is not as much of an inhibitor on Federal regulation as would be the Twenty-First?
Roger A. Tellinghuisen: I think that would certainly be in keeping with this Court's prior decisions.
William J. Brennan, Jr.: And that is your position?
Roger A. Tellinghuisen: It may not be a position that I like to advocate, but it is certainly one that I recognize.
Byron R. White: It sounds like if you lost on the Twenty-First then you would a fortiori lose on the Tenth.
Roger A. Tellinghuisen: Well, I guess I can sum it up, Your Honor, by just suggesting that if we lose on the Twenty-First Amendment I recognize we are in trouble on the Tenth Amendment. Your Honor, I would like to reserve the remainder of my time, if I might, for rebuttal.
William H. Rehnquist: Thank you, Mr. Tellinghuisen. We will hear now from you Mr. Cohen.
Louis R. Cohen: Mr. Chief Justice, and may it please the Court, I propose to argue two points. First, that Section 2 of the Twenty-First Amendment does not reach this case at all because it does not say that Congress may not in the valid exercise of its own powers bar or encourage states to bar sales of alcoholic beverages that a state might prefer to permit, and second, that Section 158 is a judicious and proper use of the Federal spending power that does not violate either the Tenth Amendment or, if it is applicable at all, the Twenty-First Amendment. Section 2 of the Twenty-First Amendment prohibits transportation or importation of alcoholic beverages for delivery or use in violation of state law. It thus broadly confirms state power to restrict those activities, notwithstanding obstacles to state regulation that would otherwise be imposed by the commerce clause and sometimes other provisions of the Constitution. Section 2 may also in some situations prevent Congress from legislating to require or permit activities that violate state law although in every actual case... I think of Crisp and Midcal and 324 Liquor... the Federal statute prevailed. But Section 2 speaks only of activities in violation of state law. I suggest that the words simply cannot be read to prohibit Congress from imposing restrictions of its own or encouraging states to impose additional restrictions on alcohol transactions.
Sandra Day O'Connor: Do you think that Congress could bring back prohibition under your view, under the spending power?
Louis R. Cohen: I don't think that Section 2 answers that question. The Court gave a partial answer to that question back in 1917 in the Clark Distilling case... this is before Prohibition... when the Court said... this is 242 U.S. at 325... "It is not in the slightest degree disputed that if Congress had prohibited the shipment of all intoxicants in the channels of interstate commerce and therefore had prevented all movement between the several states, such action would have been lawful because within the power to regulate which the Constitution conferred. "
William H. Rehnquist: That was before the Twenty-First Amendment.
Louis R. Cohen: Yes, it was, but it seems to me that if you take the Twenty-First Amendment in its two parts, the passage and later repeal of Prohibition didn't change that, and it seems to me that the plain words of Section 2 don't change that either, because if the Congress were today... I don't suggest that it is politically likely... to adopt the statute that was envisioned in Clark Distilling, that statute would not involve any transportation, importation, delivery, or use of alcoholic beverages in violation of state law and therefore would not be prohibited by Section 2 of the Twenty-First Amendment.
William H. Rehnquist: What if you take the converse of that situation? Congress decides it has been a bad year for the distilleries and therefore it requires that any state accept shipments even though the state may be dry by choice. It says it is the policy of the Federal Government to require freedom of movement in interstate commerce of hard liquor.
Louis R. Cohen: I am drawing a distinction between a prohibition and a protection at transactions in alcoholic beverages that it seems to me Section 2 draws. Congress may well be, although the Court has never actually said so, may well be prohibited from legislating in a way that requires the state to accept or allow alcoholic beverages or alcoholic beverage transactions that the state chooses to prohibit because Section 2--
Byron R. White: You are using the word "may" and it sounds as though that sort of requires a little construction of the amendment, too, doesn't it? It is not quite a plain language.
Louis R. Cohen: --Well, I am not trying to make just a wooden plain language argument. What I am suggesting is that the text of the amendment demonstrates an intention to protect the right of the states to restrict or prohibit or tax or burden the delivery or use of alcoholic beverages. It does not by its text, and I think it should not be interpreted to, bar Congress from imposing additional restrictions that don't require transactions the state is trying to prohibit. The text--
Antonin Scalia: How does that tie in with this case?
Louis R. Cohen: --In this case what Congress has done is to pass a statute which encourages the state to prohibit alcoholic beverage transactions that the state chooses not to prohibit, sales to 19 and 20-year-olds. The objection is that the state has some sort of right under the Twenty-First Amendment to allow those transactions to take place. I am suggesting that if you read Section 2 it doesn't say that. I further suggest that the source from which that text was drawn, the pre-Prohibition Webb Kenyon Act, which... whose... further illustrates the point. The purpose of that Act, which was clear from its text and its legislative history and this Court's explanation of that Act in the Clark Distilling case, was to withdraw the protection of the commerce clause so that states could regulate alcoholic beverages in ways that might be... might otherwise be objectionable obstructions of commerce. As this Court explained in Craig against Boren, the purpose of Section 2 was to constitutionalize that framework. It was not--
Antonin Scalia: Is 324 Liquor Corporation consistent with that view?
Louis R. Cohen: --I think so. I think that what 324 Liquor suggests is that there are occasions when Federal law may conflict with state efforts to restrict or impose rules on transactions in alcoholic beverages where Federal law nevertheless prevails. But the Twenty-First Amendment was properly involved in the 325 Liquor case because you had a state activity, namely state pricing regulations restricting transactions that is protected by the amendment. In this case we have no transportation, importation, delivery, or use in violation of state law. Let me illustrate with an example.
Sandra Day O'Connor: So, I mean, you think the states have no power derived from the Twenty-First Amendment to set limits on the age of drinking at all.
Louis R. Cohen: No, that is not what I am saying. First, I think the states have power to set a drinking age... police power to set a drinking age wherever they like.
Sandra Day O'Connor: Power under the... derived from the Twenty-First Amendment.
Louis R. Cohen: I don't think the states' power--
Sandra Day O'Connor: --to set drinking ages.
Louis R. Cohen: --I don't think the states' power derives from the Twenty-First Amendment at all, but I think the states' power is protected by the Twenty-First Amendment in one direction--
Sandra Day O'Connor: Do you think that might come as a little bit of a surprise to the drafters of the Twenty-First Amendment?
Louis R. Cohen: --No, because Congress and this Court promptly demonstrated their understanding that the Twenty-First Amendment was not intended to restrict the otherwise valid exercise of Congressional power to impose burdens on or additional restrictions on alcoholic beverage transactions in ways that do not require a violation of state law. Congress enacted the Federal Alcohol Administration Act in 1935 which extensively regulates importation and manufacture and wholesaling and labeling of alcoholic beverages. That statue was challenged in this Court in the William Jameson case in 1939 on the ground that the Twenty-First Amendment turned the whole subject over to the states, and the Court said per curiam, summarily, we see no substance in that contention. I suggest that what would have startled the 1935 Congress and the 1939 Court would have been a suggestion that states cannot only require, say, wholesalers to get state permits and apply state-approved labels, but can also insist on permitting wholesalers to operate without Federal permits, and on permitting beverages to be sold locally without Federal labels. That, it seems to me, is the parallel here. Maybe I make it clearer if I say that I think that if Congress were attempting to encourage the states to lower their drinking ages, there would be a Twenty-First Amendment problem, and the argument that I am now making would not be applicable, because Congress would be... I am not necessarily suggesting that a use of the spending clause would be invalid for that reason, but Congress would be encouraging a transaction that violates the state law as it now stands. What we have here is something--
Byron R. White: xxx need to have a different law. That is all.
Louis R. Cohen: --Yes. Yes.
Antonin Scalia: Mr. Cohen, apart from whether it can contravene the state law, where does Congress get the power to do this?
Louis R. Cohen: Congress gets the power, I think, under the spending clause, and our only claim is that they have the power under the spending clause.
Antonin Scalia: What is the the spending clause case that you think is closest to this one in the relationship between the purpose of the expenditure and the condition that is imposed upon receipt of the funds? The purpose of the expenditure here is what, improve highways?
Louis R. Cohen: Let me interject, because I want to, that I think that the... I think that that question is not before the Court, and I want at least to note that, although I am going to respond, I am going to respond to the question. The... it was discussed below, but the state didn't raise this question in the Court of Appeals, and it is not, I think, comprehended within either of the questions presented, and I note that the state says in its brief that it has never contended that the Congressional action was unreasonable or unrelated to an national concern in the absence of the Twenty-First Amendment. If the question is before the Court, it seems to me that the answer is first that the expenditure is plainly within Congress's power under the general welfare clause and second, that the condition attached to that expenditure is within Congress's power under the necessary and proper clause because it is sufficiently germane to the purpose of the expenditure. One of the express purposes of Federal highway assistance is to promote safe travel. Nevertheless, one of the consequences of this expenditure and the resulting improvement in our highway system is to exacerbate the problem of what President Reagan called blood borders between states. Section 158 is a measure to help achieve the safety purpose and combat the blood borders problem. It seems to me that it is open to Congress to decide that it doesn't want to provide full Federal funding for highways in states where those highways may be used by young persons in lawful quest of alcohol.
Sandra Day O'Connor: Is there some limit then on Congress spending power of a requirement of germaneness or relatedness? Could Congress enact this same kind of a grant attached to... this same kind of condition attached to a grant for school lunch money, for example?
Louis R. Cohen: The answer is that the Court has frequently said there is some kind of a limit attached to the spending power, and to my knowledge has never said what that limit is. I think there is and I think there should be such a limit. I would hope Congress would recognize such a limit on its own. I think it is a very hard line to draw. But I think it is appropriate for the Court to draw a germaneness line.
Antonin Scalia: Germane to what? Mr. Cohen, could you answer my question? You still haven't given me the case that you think is... I don't find that a terribly proximate relationship. We are building highways in order... I guess partly to increase safety of travel, and one of the things that impairs the safety of travel is kids driving somewhere else to buy liquor. I mean, what about heart attacks? You could say the same thing about heart attacks, so a condition could be, the states have to have some--
Louis R. Cohen: I will give you Lau against Nichols, where the Court... where Congress says the recipient of any Federal grant has got to comply with the civil rights laws, and that ends up being interpreted to mean that the city of San Francisco must provide some means for educating its Chinese-speaking children.
Antonin Scalia: --But Congress has independent powers to enact civil rights laws. You don't say that Congress has independent power to prescribe drinking age?
Louis R. Cohen: I am not sure that it has an independent power. I don't know whether it would have had and it certainly wasn't justified in that case on the basis of its having an independent power to impose those particular requirements other than as a condition of the grant of funds, but I will give you Oklahoma against Civil Service Commission, the classic case in this area. Congress provides that any state officer or employee whose employment is primarily in connection with any project that is funded in whole or in part by Federal funds must satisfy the Hatch Act's requirements with respect to political activity. This Court--
Antonin Scalia: But that has to do with the efficient expenditure of the funds. You don't want the funds being expended by political hacks. You want them being expended by what the Federal Government regards as responsible civil service. That is closely connected to the use of the funds. This condition isn't.
Louis R. Cohen: --I don't think that the connection is close. There is no perfect analogy to this case--
Antonin Scalia: I don't even think there is a close one.
Louis R. Cohen: --to this case, of course, but in Civil Service Commission the Court pointed out that the United States has no power to regulate the local political activities as such of state officials. It does have the power, said the Court, to fix the terms on which its money allotments to states shall be dispersed. There is no evidence in that case that the particular official had any control over the use of the funds or that the basis on which that condition is sustained is that it applies only to the state... certainly the statute doesn't say so... applies only to the state officials who have it.
William H. Rehnquist: When you speak of the word "germane", how is that being used as a term? To what does the requirement have to be germane?
Louis R. Cohen: What I am suggesting and this is, I think, not a particularly well developed area of our jurisprudence, because the Court has never, I think, had occasion to strike down a condition, but what I am suggesting is that the condition must be germane, and I guess I mean within the necessary and proper penumbra of the... germane to the purpose for which the Federal funds are being expended, and I am suggesting--
Antonin Scalia: Let me, since you can spend federal funds for any purpose that involves the general welfare, that expands the Federal powers into anything at all so long as you... the Federal Government can spend money for art and suddenly it can begin conditioning those grants to get the states to do things in the field of art that it would have no independent power to achieve.
Louis R. Cohen: --It is certainly correct that the Federal Government can spend money for art and that it can... and does, and that it can do that in order... in order, among other things, to get the states to do things that it would have no independent power to achieve, such as by requiring matching grants, such as by requiring that money provided for art be apportioned so that members of minorities or handicapped people or whatever get a share of that money.
Antonin Scalia: That relates to the expenditure of the money. Obviously any condition relating to the expenditure of the money is okay. But this is not a condition relating to the expenditure of the money.
Louis R. Cohen: Yes, it is. It's a condition that says we don't want to spend Federal money to improve highways that the states permit to be used by teenagers in quest of alcohol, just as Congress could say we don't want to spend Federal money on a school district that doesn't adequately educate one group of its children without regard to whether... back at Lau against Nichols... without regard to whether the particular Federal money was earmarked for that purpose or indeed whether any Federal money at all was being used, but to do the things that this Court ended up ordering the San Francisco School District to do.
John Paul Stevens: Mr. Cohen, as I understand your argument, you would agree, would you not, that they could not attach an unconstitutional condition to the acceptance of the grant? For example, they couldn't say you may have the money provided you employ nothing but Republican people, Republicans to build the road, or something like that.
Louis R. Cohen: Oh, certainly.
Byron R. White: Or only Republican xxx.
Louis R. Cohen: Oh, certainly.
John Paul Stevens: So there is a limit to the expenditure grant based on whether the condition would be otherwise illegal, I suppose.
Louis R. Cohen: There is.
John Paul Stevens: So if this condition should violate the Twenty-First Amendment, you might be in trouble.
Louis R. Cohen: I would agree that there are other Constitutional restrictions, and that if the Twenty-First Amendment is thought to bar this--
John Paul Stevens: For example, if the condition in this grant were to a state that had Prohibition, they say, we will give you the money provided you repeal your Prohibition law, I think you would probably say that was invalid.
Louis R. Cohen: --Well, first, I think that doing that, that is, moving--
John Paul Stevens: For two reasons. One, it wouldn't make much sense. And secondly, it would also fly right in the teeth of the wooden reading of Section 2 of the Twenty-First Amendment.
Louis R. Cohen: --I guess I don't--
John Paul Stevens: Do you get my hypothetical? I mean, the condition is that the state now has total Prohibition. You can have the money if you repeal your Prohibition laws, if you increase the drinking age, something like that. I think you would agree that that would be--
Louis R. Cohen: --I would agree that that one--
John Paul Stevens: --your argument at least would prohibit that.
Louis R. Cohen: --I would agree that that creates... raises a Twenty-First Amendment question. It differs from this case because there the state is seeking to prohibit transactions in alcoholic beverages.
John Paul Stevens: I understand. I did that deliberately. But I am suggesting if you attach a condition that does violate the Twenty-First Amendment, do you not have a serious issue under the--
Louis R. Cohen: If you say it doesn't violate it, yes, then you have an issue. I don't think that the question--
John Paul Stevens: --Which would violate it if it were a direct statute, is what I am saying.
Louis R. Cohen: --Okay. I don't think that the question is the same as the question whether you can attach a condition to Federal funding that somebody sacrifice individual rights. I don't think that the reserved right--
John Paul Stevens: Why not. What is the difference? Both of them are unconstitutional. Both of them are things that the Constitution would prohibit the Federal Government from doing directly. Can they do those things indirectly by conditioning the grant of funds on compliance with what would otherwise be an unconstitutional requirement?
Louis R. Cohen: --It seems to me that all of this Court's cases holding that powers reserved to the states under the Tenth Amendment may be waived by the state if it chooses to comply with the condition and that a condition that may encourage a state not to exercise a power that it had under the Tenth Amendment is--
John Paul Stevens: You are switching to the Tenth Amendment. You are switching my... my argument is, my hypothesis is the requirement that is imposed in order to accept the money is that you do something which the Federal Government could not directly require you to do, such as limit the distribution to people of one political party, or two, to require the enactment of a statute that the Twenty-First Amendment prohibits the Federal Government from requiring to be enacted.
Louis R. Cohen: --I am suggesting that there is a difference between the protection of individual rights, as I think you have eloquently suggested on occasion, between the protection of individual rights from being bargained away by conditional state--
John Paul Stevens: I have suggested that in cases where the Court has said there is no hierarchy of constitutional values. We are on a slippery slope when we start drawing distinctions like that.
Louis R. Cohen: --The Twenty-First Amendment protects primarily against the operation of other clauses of the Constitution, the state's power which it otherwise would have given up under the commerce clause and so forth, to restrict transactions in alcoholic beverages. In the case that you suppose it seems to me that the position that the state is in is not dissimilar from the position the state is in exercising a Tenth Amendment power which it has in which the Federal Government presumably cannot directly constitutionally take away from it but which the Federal Government can urge it to exercise in a particular way by conditioning a Federal grant.
Antonin Scalia: You could even condition the grant on every state that adopts a unicameral legislature. That is not a personal right, individual right, so that is okay, you can condition grants on that so long as it is as germane to the object of the grant as this one is germane.
Louis R. Cohen: I would hope that the Court would find a way to say that that one wasn't germane.
Antonin Scalia: Me, too. But if we couldn't it would be okay.
Louis R. Cohen: I think that there is in the germaneness test the possibility of saying, look, a very large and very central state interest can't be germane to a very small Federal interest, but in the Lead-Deadwood case, the Court did at least observe that it appeared to be constitutional for Congress to grant money on the condition that a state let the county that was the recipient of that money decide how to spend it for any governmental purpose. In Oklahoma Civil Service Commission the Court did say we are entitled to decide about... say that Congress was entitled to require Hatch Act observance by state officials. Those are, I think, Federal statutes that use the spending power in a way that is at least as intrusive upon core state governmental interests as the interest that the State of South Dakota has in permitting 19-year-olds from its own state and from neighboring states to drink beer. The state does have--
Byron R. White: What is the source of the government's power to put the 65... to put the recently gone 65-mile-an-hour speed limit... 55?
Louis R. Cohen: --Well, that is also a condition attached to the grant of Federal funds for highway construction.
Byron R. White: Do you think the Federal Government had power directly to put that speed limit on, on the interstate highway system?
Louis R. Cohen: It might. We don't... but we don't make any such argument as that in this case.
Byron R. White: You don't argue that the government directly could say no one who is using alcohol could drive on the interstate highways?
Louis R. Cohen: No, we don't argue that the government could directly say that each state must adopt a minimum drinking age--
Byron R. White: No, no, they just have a national--
Louis R. Cohen: --and that is what the government did do.
Byron R. White: --They just have a national... no drunk driving law related to interstate highways.
Louis R. Cohen: I would think that some power to police interstate highways is probably implicit in the commerce clause, yes.
Lewis F. Powell, Jr.: Mr. Cohen, while we are asking hypotheticals, could Congress prescribe the driving age both on the low side and the high side for all the states? In other words, say no person under 18 may drive on a Federal highway, no person over 80 may drive?
Louis R. Cohen: I would have thought that should Congress choose to do so the Court would sustain that as a valid exercise of the commerce clause.
Lewis F. Powell, Jr.: You say you would not have thought it?
Louis R. Cohen: I'm sorry?
Lewis F. Powell, Jr.: You would not think Congress had the power to do that?
Louis R. Cohen: No, I would.
Lewis F. Powell, Jr.: You would think so.
Louis R. Cohen: I would think the Court would sustain that as an exercise of the commerce--
Lewis F. Powell, Jr.: Congress would have the same safety interest that you-- --We couldn't get a quorum to hear that case. 0 [General laughter.]
Louis R. Cohen: --Let me finish by saying I think President Reagan was right in this case when he said that Section 158 is a judicious use of Federal power. There is an important and inherently Federal interest in eliminating the incentive to drink and drive that is created by differing minimum drinking ages between states. Thank you.
William H. Rehnquist: Thank you, Mr. Cohen. Mr. Tellinghuisen, you have seven minutes remaining.
Roger A. Tellinghuisen: I would like to take up where Mr. Cohen has just left off, and that is the Federal interest that has been in essence the cornerstone of this regulation or this condition that the Congress has imposed under Section 158. The problem with standing up and suggesting that this is an inherently Federal interest ignores the very basic realities that each and every state is just as concerned about its kids as the Federal Government, but we in South Dakota have chose a different way of addressing and preserving and attempting to reduce the incident of teenage alcohol and driving-related fatalities, and that is through the enforcement of stricter drinking and driving laws, additionally through education. There is a wide variety--
John Paul Stevens: How can you say that allowing drinking up to the age of 21 is stricter than allowing it up to the age... I mean up to the age of 19 is stricter than allowing it up to 21?
Roger A. Tellinghuisen: --I am sorry, Your Honor.
John Paul Stevens: You say you are enforcing stricter laws, but as I understand it you are trying to defend a law that is less strict.
Roger A. Tellinghuisen: That is true.
John Paul Stevens: It allows drinking by people under 21. That is less strict than--
Roger A. Tellinghuisen: That is absolutely true. Two things I would like to point out very quickly, and that is, in South Dakota, with our 19-year-old age at which people can consume 3.2 beer, these establishments, the 3.2 beer licensed establishments are separate and distinct from a regular alcohol establishment. The other thing is, though, it underscores--
John Paul Stevens: --What do you make out of that?
Roger A. Tellinghuisen: --Well, I just... I wanted to throw that out more for informational purposes than for... I just want to suggest that we recognize the special place--
John Paul Stevens: It is still less strict to allow you to drink 3.2 beer at age 20 than to allow you to drink no alcohol at age 20.
Roger A. Tellinghuisen: --That's correct, and the point I was going to make is that that underscores, however, South Dakota's attempt, or a recognition of not only a problem but making a sincere attempt at addressing that problem in a way that is different from the other states. We are suggesting that the gradual introduction of alcohol in a person's life is better than when they reach 21 just shoving them through the door. And that is the philosophy that is underscored by the--
Byron R. White: xxx people who drink 3.2 beer are unaffected by it.
Roger A. Tellinghuisen: --Oh, absolutely not, Your Honor.
Byron R. White: And that under your law it may well be that there will be more young people on the roads who have been drinking and affected by it than would be the case if no one could drink until he is 21.
Roger A. Tellinghuisen: I would say that the incidence--
Byron R. White: Isn't that right?
Roger A. Tellinghuisen: --Well, that is one analysis that could be made, and in fact that is the analysis that--
Byron R. White: Well, is there something wrong with it?
Roger A. Tellinghuisen: --Well, I just want to clarify, Your Honor, that there are parts of that assumption that don't necessarily follow, and there are other parts of it that are left outside of the consideration. First off--
Byron R. White: You don't think that even... there might even under your law as compared with what the Federal Government wants to achieve that there wouldn't at least be ten drivers a year on the road who had been drinking?
Roger A. Tellinghuisen: --Your Honor, given my experience as a state's attorney, I can assure you that there will probably be more than ten.
Byron R. White: Yes, so the answer to my previous question is yes.
Roger A. Tellinghuisen: Yes, but what I would like to point out, Your Honor, is that if we impose a 21 drinking age in South Dakota, we could equally find that we are driving 18, 19, and 20-year-olds out into the countryside to consume alcoholic beverages, not only restricted to 3.2 beer, and that in and of itself puts them behind the wheel of a car. The very problem that Congress was trying to circumvent or remove--
Thurgood Marshall: Well, are we to decide this case on whether 19 or 21 years is the proper age?
Roger A. Tellinghuisen: --That's absolutely correct, Your Honor.
Thurgood Marshall: We are not going to decide on that?
Roger A. Tellinghuisen: No, no. The issue in this case is not what the drinking age should be. The issue is who should be able to determine for each individual state what that drinking age should be, and again I would just submit that this Court's--
John Paul Stevens: May I give you one other hypothetical I have been thinking about in view of your reliance on the states' power under the Twenty-First Amendment? Supposing as a condition of a grant to build interstate limited access highways they require you to set up so many gas stations at intervals where the people can stop without getting off the highway, and they further provide that no liquor may be sold in any of those. I take it you would say that was an... exceeded Congress's power.
Roger A. Tellinghuisen: --Yes, sir. I would. I just would like to conclude by saying that the history behind the Twenty-First Amendment in some respects, as this Court has acknowledged in its prior holdings, is at best inconsistent, but there is one consistency that prevails throughout, and that is that it was Congress's intent upon adopting the resolution which ultimately became the Twenty-First Amendment to remove Congress from the local regulation of what was considered to be a local problem, and that is alcohol. Thank you very much.
William H. Rehnquist: Thank you, Mr. Tellinghuisen. The case is submitted.


Warren E. Burger: We will hear arguments first this morning in Selective Service System against Minnesota Public Interest Research. Mr. Solicitor General.
Rex E. Lee: Mr. Chief Justice, and may it please the Court, on July 2nd, 1980, President Carter, pursuant to statutory authority, reactivated a draft registration requirement for men between the ages of 18 and 26. After about two years, almost 7 percent of those eligible still had not complied with the registration requirement, in some cases deliberately, and in some through inadvertence. In 1982, sponsors in both Houses of Congress introduced as a floor amendment to the 1983 Defense Authorization Act Section 1113, which would condition eligibility for Title 4 college student aid on compliance with the applicant's draft registration obligation. Much of the language of the amendment, which is sometimes called the Solomon Amendment, was supplied by Secretary Bell, who worked closely with the sponsors in both Houses. After vigorous debate, it passed both Houses by overwhelming bipartisan majorities. This case is an appeal from a District Court holding that that 1982 Solomon Amendment violated two constitutional guarantees, the prohibition against bills of attainder contained in Article 1, Section 8, Section 9, and the privilege against compelled self-incrimination. There are two separate and independently sufficient reasons why the District Court's bill of attainder holding must be reversed. The first is... this is spelled out more completely in our reply brief... that each of the appellants' contentions rests squarely on their premise that the law does not permit aid to late registrants. That is, those who register more than 30 days after their 18th birthday. And the second reason is that even if the Appellees were correct on the late registration issue, this statute still is not a bill of attainder. I will deal first with the late registration issue. It is beyond dispute that the Secretary of Education's regulations do provide that those who register late are eligible for aid regardless of when they register. There is accordingly no question that if the individual appellees in this case comply with their obligation to register, the government will give them the aid that they say they must have. That is what the regulations provide, and that has been the consistent practice. In providing that those who register late are eligible, the regulatory scheme in this as is in other respects is faithful to the statutory purpose. Congress's objective in passing this statute was not to catch wrongdoers and punish them. It was rather to increase the number of people who are on the draft registration roles by providing both a reminder, because in many cases the reason for non-registration was simple inadvertence, and also an economic incentive. We turn then to the language of the statute, and there is nothing in that language that prohibits this result which the regulations provide. The statute requires registration in accordance with any proclamation, rule, or regulation, and the President's proclamation does require registration within 30 days of the registrant's 18th birthday. The apparent reason for the statutory reference in the Solomon Amendment to rules, regulations, and proclamations is that Section 3 of the Civil Service Act which requires registration is not self-executing and does not come into play until there is some proclamation, rule, or regulation. But in any event it is far from clear that in accordance with means within the time fixed by. And another part of the statute, Subsection F(4), which is really the fourth subdivision of the Solomon Amendment, supports the view that in accordance with means in the manner required by rather than within the time fixed by. In any event, either explanation is plausible. Certainly neither is implausible, and under those circumstances it is appropriate to consult the statutory purpose, the statutory history in determining the validity of these regulations.
William J. Brennan, Jr.: May I ask, Mr. Solicitor General, what is the dimensions of this problem? How many have not registered who are eligible to?
Rex E. Lee: To date?
William J. Brennan, Jr.: Yes.
Rex E. Lee: To date. As of the date of the Solomon Amendment, the legislative history sometimes says 500,000, sometimes says seven, and sometimes says eight. As of last week, it was approximately half that, about 350,000. There is little doubt--
William J. Brennan, Jr.: What is the total number who have registered?
Rex E. Lee: --I will give you some figures and you can extrapolate and I can extrapolate. I think I can tell you approximately what the number is. That number of somewhere between 350 and 380 represents about 3.1 percent of those who should register, whereas the earlier figure was about 7 percent. There is little doubt that the Members of the House and the Senate who enacted this law thought of the statute as designed to create an incentive to register, and that as a consequence late registrants would be eligible. The ample supports for this rather pervasive view among the Members of the House and the Senate are contained in the brief, and there are many on both sides. Senator Stennis, for example, referred to some youngster who might have overlooked signing up. Nevertheless, in the Senator's language, all this youngster will have to do is just to comply with the law, and that will automatically make him eligible. There are many similar statements cited in our briefs. Finally, there is the matter of the regulations themselves. This is the strongest possible case for deference to the administrative regulations. These regulations were not only adopted right after the passage of the statute, through the joint efforts of the two agencies charged with its implementation. This is also literally a case where the draftsmen of the statute, or one of the draftsmen of the statute was also the draftsman of the regulations, and that person is, of course, Secretary Bell. In short, every single guide to statutory construction points in the same direction, and if this statute is interpreted consistent with its purpose, its history, and it implementing regulations, then constitutional issues disappear, because neither this nor any other court has ever invalidated as a bill of attainder any statute whose applicability or non-applicability depended upon what the individual would or would not do in the future. It is at least anomalous, maybe revealing is the better word, that the appellees' argument with respect to the meaning of this statute on the late registration issue would if successful make it more difficult for them to get financial aid. They are arguing for an interpretation of the law which actually makes it harder for them to get what they assure us that they must absolutely have. This shows that their real disagreement is with the Congressional policy decisions that there should be a draft registration and that people should be encouraged to register, policy decisions which clearly fall within Congress's constitutional authority. I turn now to our second point.
Warren E. Burger: Why, Mr. Solicitor General, did Congress... is there any indication in the history why did they want the registration without the actual authority to draft?
Rex E. Lee: That decision, of course, was made at an earlier point in time, and I guess it was made in 1980, and actually was reflected in President Carter's proclamation, but I would assume that it is simply a readiness statute. The policymakers of our nation concluded that we are not yet at the stage that we need to move to the draft itself, but just to a readiness position in the event that the draft is necessary. Even if this statute could be construed to prohibit aid to late registrants, it is still not a bill of attainder. This Court clarified in Nixon versus the Administrator that to qualify as a bill of attainder a statute must meet each of three tests. Namely, it must apply only to a specific individual or group. Second, it must inflict punishment. And third, it must deny judicial process. This statute does not one of those three things. First, the Solomon Amendment simply is not punitive within the bill of attainder sense of that word. At common law, bills of attainder were legislative death sentences, usually for treason, but it is clear that Article 1, Section 9, also includes common law bills of pains and penalties, which included such penalties as imprisonment, banishment, and confiscation of property, and as the Court pointed out in Nixon versus Administrator, our own American experience has added one other category, and that is disqualification from certain kinds of employment because of a legislative determination of past wrongdoing by particular individuals or groups. But punishment for bill of attainder purposes clearly does not extend to any circumstance of non-realization of an economic benefit which any individual would like to have, and the square holding of Fleming versus Nestor is that the mere denial, in Fleming's words, the mere denial of a non-contractual governmental benefit does not amount to punishment for bill of attainder purposes, and that is all we have here, the mere denial of a non-contractual governmental benefit. If it was not punishment to deprive Mr. Nestor of his Social Security benefits after he had paid into the fund for 19 years, then a fortiori it is not punishment to condition student aid to registration with the draft.
William J. Brennan, Jr.: Do we know, Mr. Solicitor General, how many of that 350 to 380,000 who have not registered are receiving financial aid?
Rex E. Lee: We do not.
William J. Brennan, Jr.: Or are asking for it?
Rex E. Lee: We do not. There is no way, I guess, that the government would have access to that kind of information. I turn now to the other two elements of bill of attainder. With regard to specificity, this law applies to non-registrants. It is the complete antithesis, the complete opposite end of the spectrum from the specific identification that we experienced at common law or any other instance in which any statute has ever been held unconstitutional as a bill of attainder. It is an open-ended group whose fluctuating membership will be determined by events which are yet to occur in the future, and that argument does not depend on our position with regard to late registration, because even if we are wrong on late registration, the class affected is nonetheless one that changes every day and whose composition is constantly subject to future contingencies as more young men turn 18 and either register or neglect or decline to register. And as I stated a moment ago, never in the history of our Republic has any statute ever been held unconstitutional as a bill of attainder where its membership depended upon events which might yet occur in the future. With regard to denial of judicial process, the only relevant issue or determination through the judicial type process, whether the individual does or does not fall within the legislative target area, is whether the individual has registered. It is therefore completely unlike the circumstance in United States versus Brown, in which the issue was whether communism was an adequate proxy for... to engage in political strikes. And since this statute and these regulations do provide for the individual who wants to show that in fact he has registered, this characteristic, this factor also has been satisfied. I turn finally to the appellees' privilege against self-incrimination argument. There are three short reasons why this is not a violation of the Fifth Amendment. The first is that there is no compulsion. There is no compulsion in prescribing standards of eligibility for student aid. Indeed, non-registrants are not only not compelled to apply for student aid. It would be useless for them to do so because they are ineligible, and it is not a crime not to apply for student aid. Moreover, the privilege against self-incrimination does not assure that there will be no adverse economic consequences from remaining silent. The Garrity, Spevack, Gardner, Lefkowitz line of cases on which the appellees rely stand for the proposition that government may not compel self-incrimination, may not compel self-incriminating testimony without a grant of immunity. They do not stand for the proposition, as this Court made very clear in the Gardner case, that nothing that the person says or doesn't say can ever be used to his economic advantage, or disadvantage. Surely, for example, the Drug Enforcement Administration is entitled to ask a job applicant whether he uses drugs. Surely in employing lawyers from my office we are entitled to ask whether the applicant has ever stolen money from a client. Surely the Department of Agriculture is entitled to ask an applicant for federal crop insurance whether he is growing marijuana on his farm. And in the administration of Title 4 itself, surely the Department of Education can ask whether the applicant is legally in this country, because that is one of the qualifications for student aid. Third, there is an element of unreality about the appellees' Fifth Amendment argument. The purpose of this statute after all is to get people registered. A major objective, a major theme in the legislative history is that those people who had not registered on time should register late, and that was a major purpose of this statute, to get those who had not registered on time to register late. It would be a perversion of that purpose to prosecute late registrants, to prosecute for doing the very thing that the statute was passed to encourage, and it has never been done. This Court said in Marketti that the central standard for the privileges application has been whether the claimant is confronted by substantial and real as opposed to mere trifling or imaginary hazards of incrimination. I cannot imagine any hazards of incrimination that more appropriately fit that definition, trifling and imaginary. One person of the presumably tens of thousands, probably even hundreds of thousands, who have registered late thus far has been prosecuted, and that is firmly opposed to government policy. One final note, and on this I will close. It probably is not... it may not be independently dispositive, but at the very least there is an additional consideration which should influence the standard of review for this Congressional exercise of the spending power, regardless of whether it applies to bill of attainder or the Fifth Amendment. Last term, in Regan versus Taxation With Representation, this Court held that Congress is entitled to great deference in making its judgments concerning how the nation's revenues are to be gathered and the tax burden distributed among different persons and groups. I know of no basis for distinguishing in this respect between Congress's power to tax as in Regan versus Taxation With Representation and its power to spend as in this case. The language of the Constitution locks them together, and this Court's decisions consistently treat them as subject to identical constitutional standards. Mr. Chief Justice, I will save the rest of my time.
William H. Rehnquist: General Lee?
Rex E. Lee: Yes.
William H. Rehnquist: I notice that the individual plaintiffs in the District Court were all anonymous. Did the government make any objection to that?
Rex E. Lee: No, not as far as I know.
Warren E. Burger: Mr. Keppel.
William J. Keppel: Mr. Chief Justice, and may it please the Court, the question before you today is whether the Constitution will countenance now and for the future the use of leverage of a statutory benefits program to enforce an unrelated penal statute. Approval of the scheme under challenge here will sanction the use of a test oath as a law enforcement device contrary to the basic principles of our criminal justice system. Section 1113 substitutes a presumption of guilt for that of innocence. It reverses the historical burden of proof. It imposes a punishment without judicial trial.
Warren E. Burger: Would you view in the same way a statute that provided that no loan applicant would be... receive aid if he owed any delinquent taxes to the federal government?
William J. Keppel: The repayment of a loan, Mr. Chief Justice, is at least related to the payment of other obligations. The statute that is under scrutiny here has no relationship whatsoever to the Higher Education Act benefits programs which are far-reaching indeed, and for that reason that hypothetical is different from the case before you.
Warren E. Burger: What about... Let me try this hypothetical. Suppose there were a provision in the Medicaid or Medicare Act... I get the two of them confused... either one of them, that if a physician was seeking to participate, that is, to charge fees, that he would have to certify under oath that he had repaid any student loan that he may have had to get his medical education. Would you think that would be the same pretty much as the case before us today?
William J. Keppel: The repayment of the loan, Mr. Chief Justice, is not in itself a crime. Non-registration, on the other hand, is a crime punishable by imprisonment by up to five years and a fine of $10,000 or both, and so the difference between many of those kinds of conditions if they are bona fide and rationally related to the goal of the Congress is a different thing. In addition, if the underlying act is a criminal act in itself, that carries us one further away from the case here. The consequences of your decision then will extend far beyond this case. If Section 1113 survives scrutiny, it will be followed. Indeed, it has already been followed by a rash of similar laws by which government on all levels, federal, state, and local, will demand citizens to swear or certify under pain of perjury in return for some form of government benefit that they have not broken one law or another. These laws not only undercut the judicial system, but they serve as an affront to the dignity and the integrity of our citizens. Fortunately the Constitution, through its bill of attainder clause, through the proscription on self-incrimination, and through its guarantee of equal protection, does not tolerate laws such as 1113. Section 1113 violates the prohibition against bills of attainder. It targets a clearly identifiable group. It imposes punishment, and it does so without the protections of a judicial trial. Section 1113 accomplishes this, as I mentioned, through the device of a test oath by which the applicant for aid must certify under pain of perjury that he has complied, he has submitted to registration under Section 3 of the Selective Service Act. And in addition, as is true of the classic test oath cases, the conduct here is perceived by some to be disloyal or at least politically unpopular. In spite of the government's protestations, there can be no doubt that all three of the elements or requirements to proscribe the statute as a bill of attainder are met here. This statute clearly focuses on non-registrant students who need financial aid. In Footnote 29 of the Brown case, the Court said that as long as you can ascertain a group that is the focus of a statute... in that case they cited, for example, a statute with regard to operating machinery. If you can describe symptoms, or if you can describe a disease, or some other guideline by which the group could be ascertained, that is sufficient. Here, the statute itself identifies a group, and there is no question but that who is within its proscription.
William H. Rehnquist: Mr. Keppel, is there anything in the record that tells what percentage of all applicants to colleges in Minnesota, if that is the relevant... are eligible for financial aid? I mean, is it a small percent or a large percent?
William J. Keppel: The affidavit of Robert Kusenko and the brief of the amicus group of colleges headed by the University of Minnesota indicates that about 80 percent of all financial aid money is federally funded and comes within this statute. In addition, anywhere, depending on the program, from two-thirds to three-quarters of the students fall within families who have total family income of $18,000 or less, which is considerably less than the average family income for the country. And so, while we can't define exactly the numbers who would fall within it, we can see that it is a high percentage of students and the funds available to students generally are overwhelmingly the federally financed funds under Title 4.
William H. Rehnquist: Do those statistics show... perhaps you have answered it and I just didn't get it... what percentage of the applicants for... the ratio perhaps the people who would be eligible for these federal funds bear to the total number of applicants for admission or the total number of people admitted?
William J. Keppel: That is not in the record, Your Honor.
Sandra Day O'Connor: Mr. Keppel, isn't a class an open... certainly as applied to people who are becoming 18? Now they are aware of the provisions of the draft registration law and aware of the financial aid requirements, and as to them it is just a requirement for future conduct, isn't it?
William J. Keppel: Justice O'Connor, this Court has indicated that inescapability, and that is the rubric that the government uses in describing what you are talking about, inescapability is not required. Footnote 32 in the Brown case makes it clear that this is not a prerequisite to finding an ascertainable or identifiable group. It is merely one factor that might be considered. But in this case the government agrees that the act of non-registration is complete upon the expiration of a 30-day period after attaining one's 18th birthday. Now, whether they forebear from prosecuting or not is not the point, but the past and ineradicable act exists upon the expiration of that time period, and so any of these people could be prosecuted at any time if the government changed its policy. And during the late sixties and the early seventies, the government did in fact prosecute late registrants, so I think we can see that this is an identifiable group. The crime, if you will, is complete. The past act is complete. The inescapability is not a prerequisite, and so the group is clearly identifiable.
John Paul Stevens: Mr. Keppel, would it not be a permissible construction of the statute to avoid the constitutional question to treat it the way the Solicitor General suggested, that... in accordance with means and the manner required by rather than within the time required? Wouldn't that eliminate this problem?
William J. Keppel: In the manner required is not a literal interpretation.
John Paul Stevens: Wouldn't that be in the best interests of your clients to so construe the statute?
William J. Keppel: My clients, Your Honor, do not fall within the group of people who are unaware of their obligation to register, and so with the threat of criminal prosecution hanging over them because the government has been careful not to grant immunity to late registrants, with the threat of criminal prosecution hanging over them, it would not be in their best interest.
John Paul Stevens: In other words, you are saying they wouldn't register anyway? I wonder if they have standing to make the particular argument you are making then.
William J. Keppel: There is no question but that they are adversely affected. There is no hearing available to them. There is no redress available to them but to attack the statute itself, and whether they have standing to attack late registration or not, it seems that they would. In fact, one of the appellees contacted me about a month ago and said he couldn't continue. The economic pressures were too great. He had to register. And so these people, if the government can leverage them enough, can coerce them enough, can be compelled not only to violate their Fifth Amendment rights, but to violate their conscience and register. For that reason, they would have standing.
Warren E. Burger: What would you say about a person who had been convicted of some criminal act and in prison and then a fugitive, escaped from the prison, that had a pension due him either from the government or from some private source. Make it the government. He would certainly have some disincentive to apply for his pension, would he not, because that would identify him? Would you say there is some violation there of his rights?
William J. Keppel: There--
Warren E. Burger: He has to show up in order to get the benefit. But if he shows up he is going to be apprehended as a fugitive and put back in prison.
William J. Keppel: --The statute in that case, Mr. Chief Justice, is evenhanded. It applies to all. It does not have a law enforcement purpose, which Section 1113 does. You can call it an economic incentive, but you can also use other euphemisms. I think I would more accurately describe it as a penalty for non-compliance, and I think that is one distinguishing feature, that the statute which you describe or the contractual obligation, if it is one, is at least evenhanded. This one is directed to non-registrants to coerce their registration, and for that reason the situations would be different.
Warren E. Burger: You referred to the Act as it was in the sixties, I think you said the seventies also. Was that a registration in connection with a draft potential, or was it just a pure registration as it is now? In other words, was the draft in effect in the sixties?
William J. Keppel: Yes, the draft was in effect at the time, Your Honor.
Warren E. Burger: That makes it somewhat different, doesn't it? There would be a reason for prosecuting non-registrants who were not only evading the registration requirement but also evading the draft itself.
William J. Keppel: That is correct, Your Honor, but by the same token, that provides the argument that there is nothing sacred about their present forebearance. Once this case is decided, the government could go ahead and start prosecuting late registrants, or if the international conditions changed as you describe, the government could decide to prosecute. And these people who did so would be susceptible to prosecution. On the other hand, if they were outspoken critics of government policy, even though they late register, the government would always have that club hanging over their head by which it could prosecute outspoken critics, and I think as long as they are unwilling to grant immunity, which they could do if they were serious, as long as they are unwilling to grant immunity, the potential for criminal prosecution is clear. Now, the second requirement of a bill of attainder is that it inflict punishment.
Thurgood Marshall: One question. What about... you say forever this is there? No statute of limitations involved?
William J. Keppel: There is a statute of limitations in prosecutions for non-registration, Justice Marshall, and that has been extended, as the government notes in its reply brief to five years after one attains his 26th birthday.
Thurgood Marshall: So, I mean, you keep saying forever. You don't really mean that. You mean five years.
William J. Keppel: The effect on these young men could be viewed as longlasting, and certainly beyond the statutory period, because their college degrees are being terminated with the termination of their aid.
Thurgood Marshall: I am only talking about prosecution, criminal prosecution.
William J. Keppel: And that criminal prosecution--
Thurgood Marshall: Five years.
William J. Keppel: --potential ceases five years after attaining the 26th birthday.
Sandra Day O'Connor: Mr. Keppel, would you have difficulty if the government just gave an outright financial grant of, say, $50 a person to get people to register for the draft? I mean, that is some kind of leverage, I suppose.
William J. Keppel: That would be leverage far less drastic than is the leverage here. These people are cut off from financial aid which the District Court found clearly was required for them to proceed with their college education.
Sandra Day O'Connor: Well, if the grant program operated the same way, and they are cut off from the outright grant if they don't register, how is that different?
William J. Keppel: In this case, they are required to certify themselves. They are required to confess to late registration, if you will, in the certification.
Sandra Day O'Connor: Well, that is your self-incrimination argument. What about the bill of attainder argument? Is that offended by a grant?
William J. Keppel: This Court has noted that punishment has to be determined in the context of the particular case. In this case, we see a drastic penalty or sanction inflicted on these non-registrants. The situation which you describe, while a matter of degree, is--
Sandra Day O'Connor: It is just less money, I suppose.
William J. Keppel: --It is less money, but it also has a far less drastic impact on the young men, because they may not be penalized by $50, but when you are cutting them off completely, we are talking about quite a different matter. We have to remember that we are not only talking about college students and university students. The Higher Education Act covers technical schools, vocational schools. It covers direct student loans, even the guaranteed programs... grants, state incentive loans. It even covers the work-study programs by which--
William H. Rehnquist: Mr. Keppel, take Justice O'Connor's example a point further. Supposing Congress were to say that we are sufficiently concerned with failure to register for the draft that we are going to channel all aid to higher education, which formerly went into the Higher Education Act in the form of scholarship grants to people who register for the draft after they get out of the Army, if they ever do. And so the only aid, federal aid to higher education is available to you only if you register for the draft under that Act. Now, would that pose... would you feel that would come under your argument, or that it would be different?
William J. Keppel: --If it targets an identifiable group and if it inflicts punishment--
William H. Rehnquist: Well, I ask you to answer a question yes or no.
William J. Keppel: --I would consider that very close to what we are talking about here, absent the self-incrimination problem that we have also in Section 1113.
William H. Rehnquist: So you feel that, too, would be a bill of attainder?
William J. Keppel: It would in my judgment, Justice Rehnquist. This Court has held that punishment need not be directly inflicted. What cannot be accomplished directly cannot be accomplished indirectly, and deprivation under any form, however disguised, is prohibited by the bill of attainder law. And so, consequently, in the Cummings case over 100 years ago the Court held that deprivation of any civil right or political right may be punishment, and they looked at disqualification from positions of trust, from pursuit of certain vocations, from being a guardian or an executor was a sufficient punishment, even disqualification from federal employment. We are not cutting in the Lovett case off these individuals from any kind of employment. All we are saying is, you can't work in the federal government, and that was sufficient. From practicing law in the federal courts in the Ex Parte Garland case, not forbidding you from practicing law in state courts, or writing wills, or closing real estate transactions, but merely practicing in the federal courts. And all of these were viewed to be sufficient penalties. In this case, we are cutting these young men off from proceeding with their college degrees, which the District Court held could only be done with federal aid, and by not attaining the college education in this increasingly complex society, we are cutting these young men off from any number, not only of learned educations but any number of skilled pursuits or vocations under the technical and vocational school reach of this statute. And that inflicts punishment in a real sense perhaps far more extensive than in the previous cases of this Court.
Warren E. Burger: It is a punishment that can easily be avoided, can it not?
William J. Keppel: The punishment--
Warren E. Burger: The punishment as you describe it.
William J. Keppel: --It can be avoided, Chief Justice, by registering, but this Court has also held that, in cases like Spevack, that the ability to obtain other kinds of work or the like cannot be imposed, and furthermore, in Grasso and Marketti, the Court said it is not whether these young men have a right to register or not to register, but once having chosen not to, whether they can be compelled to incriminate themselves, and contrary to what the government suggests, this is not a separate or this is not a combined argument. The bill of attainder stands separate and independent of the Fifth Amendment, and as the government keeps urging and urging that late registration qualifies you for aid, we get further and further into Fifth Amendment problems, because by late registering, they are confessing to having late registered, and are providing a link in the chain of evidence which may be used to convict, and that is what this Court has held to be sufficient to violate the Fifth Amendment.
John Paul Stevens: Mr. Keppel, do you disagree with the basic figures as I understand the other side to give us that there have been 300,000 or 400,000 people who have been late registrants, and none of them have been prosecuted?
William J. Keppel: I have no reason to quarrel with that, Justice Stevens.
John Paul Stevens: So the probability of prosecuting, getting prosecuted for a late registration is really quite low.
William J. Keppel: The probability today is quite low, but as I mentioned, late registrants have been prosecuted in the past. The government in its reply brief suggests that it may be changing its policy with regard to late registrants who are registering after they get warning letters from the Selective Service System and as they can change that, they can get back to the policy that they were practicing back in the late sixties and early seventies.
Warren E. Burger: Has anyone ever been prosecuted when there was just a registration requirement without a draft system?
William J. Keppel: Please, I missed the question.
Warren E. Burger: Has anyone ever been prosecuted for failing to register except when there was a draft system extant?
William J. Keppel: I am aware of no such situation.
William H. Rehnquist: There have been prosecutions for failure to register, haven't there, in different jurisdictions?
William J. Keppel: There have been a number of them in the last few years. Not a large number, but they have prosecuted non-registrants.
William J. Brennan, Jr.: Mr. Keppel, are you about to address your privilege argument?
William J. Keppel: Yes.
William J. Brennan, Jr.: May I ask this? Do I correctly understand the statute that he doesn't get aid if he refuses to certify that he has complied with the registration requirement. That is true, isn't it?
William J. Keppel: That is true.
William J. Brennan, Jr.: Well, isn't it also true that if he were to say, I waive my privilege against self-incrimination, I admit that I have not registered, would he not also be denied any aid?
William J. Keppel: The waiver of the privilege would not get him federal aid.
William J. Brennan, Jr.: Then my question is, where is the coercion in this scheme, the compulsion to force students to waive?
William J. Keppel: The compulsion is in their need for financial aid. They need--
William J. Brennan, Jr.: If it doesn't make any difference whether they admit or refuse to say whether they have registered, in both cases, they would be denied aid, how does the scheme work with compulsion?
William J. Keppel: --The scheme of Section 1113 is part of the reason why it violates the Fifth Amendment. The student is faced with the cruel trilemma of either foregoing financial aid, of committing perjury in falsely certifying compliance, or in waiving his Fifth Amendment rights, and in those--
William J. Brennan, Jr.: But as I understand it, if he waives by admitting that he has not complied, he is not going to get any aid anyway.
William J. Keppel: --But for this section, which has been found to be unconstitutional, he would get aid. These young men, all six of them, received federal financial aid. They qualified for federal financial aid before Section 1113 was enacted, and but for that section, they would be receiving it today. This Court has held time and time again that you cannot enforce an unconstitutional condition as a requisite for receipt of aid, whether it be a federal job or some other benefit.
William J. Brennan, Jr.: If this statute said, if you will waive, you will get... and admit that you have not complied, you will get the aid, I can see the compulsion then of the provision, but if he is not to get it, at least as to this scheme, it is difficult to see where the government compulsion is for purposes of the privilege.
William J. Keppel: The compulsion is that they need the aid. They have to have the aid to continue, and that is important enough a price to pay, as this Court has noted in the Spevack versus Klein case, too costly a price to give up your Fifth Amendment rights, and so it is that leverage or coercion or compulsion based on need that renders the argument that this is a voluntary application to be really begging the question.
Byron R. White: Mr. Keppel, what if we disagree with you on the first part of your argument, and say that late registration is permissible under the statute? Is the case over then? You still have a Fifth Amendment issue, don't you?
William J. Keppel: Justice White, we do.
Byron R. White: And in that situation, if he says, no, I have not registered but I want to register now in order to get the aid, your Fifth Amendment argument is still there, I take it.
William J. Keppel: It is indeed.
Byron R. White: And Justice Brennan's question would be answered, wouldn't it?
William J. Keppel: It would, Your Honor.
Byron R. White: They could get the aid, as long as they registered--
William J. Keppel: As long as--
Byron R. White: --and in the course of doing so, admitting that they were late.
William J. Keppel: --And that's what they'd be doing. They'd be signing their confession when they signed the certification of compliance or non-compliance, or if they left it blank.
John Paul Stevens: But if you agree with that construction of the statute, the violation of law has dissipated. There is no violation of law, as soon as he registers, so where is the... you know, I don't understand.
William J. Keppel: Looking at the Fifth Amendment problem as one in which invoking one's right to remain silent makes the price that is paid too costly, as this Court held in Spevack--
John Paul Stevens: The price is zero. You comply with the law and you have no penalty. What is the price?
William J. Keppel: --If there is immunity, there is no problem. If they will grant immunity from prosecution.
John Paul Stevens: So in other words your argument fails if the statute is construed the other way. Your compulsion is a compulsion to comply with the law, not to say anything. Maybe your bill of attainder argument might fail, but that doesn't mean that he still couldn't be prosecuted for a crime, for having... failing to register. Even if they accept late registration. As long as you register, you get the aid. But that doesn't mean that you can't be prosecuted.
William J. Keppel: That is exactly correct, Justice White. As they argue, late registration is permissible for bill of attainder purposes. The case of self-incrimination becomes stronger. They can't have it both ways. They have to select one or the other. Now, the violation of the Fifth Amendment, as I stated, is not cured by late registration, and under any of the tests of the cases cited both by the government, the Garrity, the Lefkowitz cases, the Spevack cases, the price paid in cutting off financial aid, in terminating college, in hampering or perhaps terminating the pursuit of one's chosen vocation is too costly to make the imposition or the invocation of the Fifth Amendment in the context here. This Court, as I said, in Torasco versus Watkins, Wyman versus Updegraff, held that unconstitutional conditions in the award of public employment or in the holding of public office cannot stand, and for them to say consequently that we can use unconstitutional conditions to bootstrap their Fifth Amendment argument again is unsuccessful. Given the increasingly pervasive reach of government into virtually all of our lives, in the increasing numbers of federal jobs, of loans and grants and licenses, permits, employment the decision in this case will have far-reaching consequences. If the Court approves this scheme reflected in Section 1113 there is nothing to stop the federal government from conditioning any aid or any contract or job of any kind on a test oath affirming registration not only for the draft but affirming non-violation or compliance with any penal criminal statute.
John Paul Stevens: May I ask you another question, because I am a little confused on the statutory scheme. Assume the government is right on the construction with respect to 1113 for the moment. It permits late registration to comply. And assuming you, before you applied for student aid, you registered, but you were late in doing so. You had been guilty of a crime up to the time you registered. Now, after that, you apply for student aid. Must you disclose the fact that you had not registered on time?
William J. Keppel: That fact will be known to the government.
John Paul Stevens: Well, that is not my question. Must you disclose it in your application for student aid?
William J. Keppel: In the application itself, you do not disclose--
John Paul Stevens: You just have to say you have registered.
William J. Keppel: --That you have registered.
John Paul Stevens: So that if you follow that sequence of events, you can avoid the compulsion to incriminate yourself.
William J. Keppel: You are still susceptible to criminal prosecution.
John Paul Stevens: I understand, but you haven't incriminated yourself in the document you have been compelled to file.
William J. Keppel: The document itself does not contain a date, but the verification procedures in Section 1113 will quickly uncover the fact of late registration, and again, it is late registration itself that might be... might qualify one for financial aid but which is clearly an independent crime which cannot be cured in the context here without the grant of some kind of immunity. And so if this scheme is approved, there is nothing not only to stop the federal government but to stop state governments from conditioning benefits, such as the driver's license, the attendance at any state school, occupational licenses--
Warren E. Burger: Your time has expired now, Mr. Keppel.
William J. Keppel: --Thank you.
Warren E. Burger: Do you have anything further, Mr. Solicitor General?
Rex E. Lee: The one thing I planned to say was what Justice Stevens has just clarified, and unless there are any further questions with regard to that matter or anything else, I have nothing further.
Warren E. Burger: Very well. Thank you, gentlemen. The case is submitted.