Warren E. Burger: We'll hear arguments next in 719, Chapman against the Houston Welfare Rights Organization. Mr. Young, I think you may proceed whenever you're ready.
David H. Young: Thank you Mr. Chief Justice, may it please the Court. The dispute in this case arises as a result of a March 1st, 1973 conversion that the State of Texas Department of -- what was then known as Department of Public Welfare made in the methods and procedures that it used to calculate a standard of need in Aid to Families with Dependent Children program. States are permitted by Section 601 in Title 42 that Section 401 of the Social Security Act to define the standard of need that they will utilize in the AFDC program and this Court has frequently stated and restated ever since King against Smith that states have that latitude. Before, the March 1st, 1973 conversion, the state's method of determining an individual's need for AFDC went through the four steps. First, a maximum standard of need was established which is not in dispute. Second, a personal needs allowance, a shelter allowance and a utilities allowance were combined that portion is in dispute. Third, they percentage reduction factor was applied and fourth, the amount of any none exempt income was deducted from the -- what was referred to this has recognized needs which was a product to those first three steps. Much of that, of course was outlined in your prior decision in Jefferson against Hackney. The problem arises because of one step that Texas went through with regard to the shelter and utilities allowances that it allowed to be included in the standard of need that were being perforation. The method that Texas used was to count the number of individuals in the household without regard whether they were eligible or not. And then subtract the appropriate per capita share for those people who were determined to be ineligible. After March 1st, 1973, Texas has conversion provided for a flat grant system. There's essentially no longer any dispute in this case that Texas can have a flat grants that other states can have a flat grants. The shelter and utilities figures that Texas used and that from which this lawsuit comes were consolidated with the personal needs figure and average. Neither the consolidation per se nor the averaging is an issue what the state did under the new system was say that you get so many dollars per eligible recipient rather than the former method of taking all the individuals in the household and then backing out a per capita share for those who were determined to be ineligible. I think simply so I characterized the new method is just simple addition you add up the numbers for the eligible people there whereas before you added up numbers for everyone and then back out a share for the ineligible and that's the perforation. It's important --
Byron R. White: What practical difference in that change?
David H. Young: I hope to demonstrate there is no practical difference. But it has been widely assumed that there is and that is enlarged part of basis for the Fifth Circuit's decision and I'm seeking an overturn. It is important in that regard to keep perforation and economies of scale is separate questions. There's no dispute that the state can utilize economy's scale in establishing its need standards. Economy's of scale by the way is not a justification for perforation despite the contention that occasionally occurs that economy's scale is just another way of saying the state assumes the availability of income and runs contrary to everything the Court has said since King against Smith. In the District Court, respondents file suit against the new system saying, one, that it violated Section 602 (a) (23) or the cost of living increase requirement of the Social Security Act to use a flat grant. The flat grant being what I described is just a simple addition of the average numbers rather than the former method of establishing a figure for individual needs. And also alleged that the state's new system violated 602 (a) (7) which is the provision that requires the states to deduct available income. 606 (b) which has to do is whether or not the states can make restrictive payments and which we say is not an issue here and 602 (a) (23) which is the cost of living requirement. They said that by including the prorated members will obscured the standard of need and therefore do not give a true cost of living raises required by 602 (a) (23). The District Court took jurisdiction of the alleged Social Security Act violations under 28 U.S.C. 13434. And the Fifth Circuit's decision -- and they were required to judge view was required to by the Fifth Circuit's decision in Gomez against Florida Employment Service. The rights involved which were found to be cognizable under 13434 were rights at the Fifth Circuit characterizes rights of an essentially personal nature referring to the need to have food, the need to have a shelter a place to live and things such as this. But the District Court found far that your petitioner is here on the merits of the case. After the District Court entered its opinion, the respondents here attempted to reopen and amend their case to raise a constitutional issue. They have not alleged any constitutional issue to the time the District Court made its decision. However, in considering their motions to reopen and motions for live to amend the court said that the demands of its docket do not allow a party who has had its civilian court to restructure and replead its case merely because it is obtained in adverse decision.
Byron R. White: Who would oppose any remand for purpose of amending the complaint?
David H. Young: Yes, Your Honor. As I understand the general practice where effectively a jurisdictional basis or pleading are allowed to be amended at some time during the appellate process it is where the Superior Court and the Appellate Court is looking for an alternative means to uphold the decision of the court below that's already been made. And in this case, the District Court said that they not only had and raise it or briefed it or argued it but that there was no proof in the record to support what the District Court took to be their Due Process claim but which was not characterizes Due Process or anything else in their motions for leave to amend their reopen.
Byron R. White: Do you feel then that the -- if we should reach the merits of the Van Lare case is not controlling?
David H. Young: Yes.
Potter Stewart: Because there was a constitutional claim here in the sense that there was a Supremacy Clause claim, wasn't there? That we're going to hear --
David H. Young: That you certainly where he is. I hope to speak for a very little but --
Potter Stewart: But certainly whenever the --
David H. Young: That certainly an issue --
Potter Stewart: Whenever the complaint is based upon a conflict between of state's statute of policy in a federal statute and claim being made that the state is acting inconsistently with the federal statute that's necessarily as Supremacy Clause claim, isn't it which is a constitutional claim at least?
David H. Young: Well, that is how it's characterized, yes.
Potter Stewart: Yes.
David H. Young: I don't subscribe to it.
William H. Rehnquist: Mr. Young, you say you hope to speak to a very little as I read your petition or your brief on the merits is the first question raised in your brief on a merits and if you'll notice the case set for argument after yours as well --
David H. Young: I have.
William H. Rehnquist: In which that's the only question raised here.
David H. Young: Yes. What I meant by that is that when I did my petition for certiorari you'll notice that all that was available to me as to Gonzalez against Young was a short summary in United States law weaken my petition was based on Andrews against Maher and Randall v. Goldmark subsequently and prior to the preparation of my brief and did obtain a copy of Gonzales against Young and Alexandria. I hope to come in on the respondent's petition about it but I cannot improve on or share any additional light. I think really on the rational that the Third Circuit is and I just stand on it with the State of New Jersey. To the extent it addresses the issue I raise which is 13434 not 13433. The -- and with regard to that distinction between the two possible basis for jurisdiction, the Fifth Circuit found with the District Court that it was subsection 4 which was a basis for jurisdiction not subsection 3 and they declined to find the existence, excuse me. Now, the subsection 3 claim even though by that time it arguably been briefed by respondents in the District Court and it have been repeatedly urged as a method to reopen the whole case and was sought to -- by them to be considered by the Fifth Circuit. Fifth Circuit said, That's not what we have here. We have a subsection 4 case. But they did on one issue in the merits overturn the Fifth Circuit on the perforation question and say that perforation was an impermissible assumption of income except when the recipient lives with none dependent relatives in the later shelter. My petition for certiorari was intentionally and knowingly limited to as to jurisdiction 13434. I also alleged that the Fifth Circuit fail to appreciate this Court's opinion in Jefferson against Hackney where is considered what the real requirements of 602 (a) (23) were and determine that Texas that are already met them and overlook the characterization in Rosado against Wyman and repeated in Jefferson that it's adventure some for the courts to attempt to alter the State's ability and set a standard of need. I did say also that the Fifth Circuit misinterpreted this Court's decision in Van Lare because Van Lare really had to do with the substantive of income. It didn't really have anything to do with the state's proper calculation of its standard of need. I hasn't add I recognized the last paragraph in Van Lare is there because it jumps out at you and it's quoted in the Fifth Circuit's decision but then I will get to that later. I don't think that that's controlling in this case. The respondents say that subsection 3 of 1343 is also before the Court which I did not agree but I will have to it after lunch because it will be then and in Gonzales against Young. But they did agree with me that the issue on the merits is whether or not the state complied with the cost of living increase requirement of 602 (a) (23). Excuse me.
Potter Stewart: Well, excuse me Mr. Young. Around the subject looking at the opinion of the Court of Appeals in this case which begins on page B 30 of your petitioner for certiorari, there's an initial footnote that so far as I know is the entire discussion by the Court of this jurisdictional problem, isn't it?
David H. Young: It is, yes.
Potter Stewart: And in that footnote, the Court says, Although, other Circuits disagree we have held that Section 1983 is an act of Congress providing for the protection of Civil Rights sufficient to invoke Section 1343(4) jurisdiction. Is there in fact disagreement on that general proposition?
David H. Young: As to subparagraph 4.
Potter Stewart: As to whether or not since 1983 is an act of Congress providing for the protection of Civil Rights efficient to invoke 1343(4) jurisdiction, is there any disagreement on that?
David H. Young: As to the later part, yes not to the former whether it's sufficient invoke 1343(a) jurisdiction is an issue. That is an issue because --
Potter Stewart: I thought the disagreement was whether or not this lawsuit is within the ambit of 1343(4) or you want to say 1343(3) or (4)?
David H. Young: Well,--
Potter Stewart: Not whether a lawsuit that is within 1343 is there is jurisdiction such a lawsuit under 1983, I don't think there's any disagreement about that.
David H. Young: Well, perhaps I wasn't following your first question.
Potter Stewart: Well, in other words, I don't follow this footnote and I was asking you if you could help me explain it.
David H. Young: Well, I think the explanation is the confusion among the effects of the Supremacy Clause on the one hand, 1983 on the other hand and then the two subsections of 1343 plus the Social Security Act. These case has really arise under and depend upon interpretations of the Social Security Act none of the above. And they do not emanate these programs, Government income transfer programs or neither -- they don't find their genesis and either the Supremacy Clause or the Fourteenth Amendment. And that in that shell of course is the jurisdictional argument in this case. I notice the clock is running and I'm taking more time that I intended to. I want to get to the merits because that's where my case is different in the next one. I would assert that --
Potter Stewart: Because we don't -- nobody gets to the merits if you're right on your jurisdictional claim, isn't that correct?
David H. Young: That's true. That's true, but I would feel better if I didn't take that chance. And my client might say I never really appealed anyway. Let me use, I used one example in my brief on the merits to try to show that processes it was applied in Texas to distinguish between determining need on the one hand and determining amount of income on the other hand. I won't play for that now but I'll try to show that there's a very real difference between need and income per se. So, let me talk a little bit about establishing the standard of need and refer you to the Ortega Family in this case which is the only of the original plaintiffs it's still in the case. The others were recipients of adult assistance program that are no longer in existence. In Ortega had four members in the family, two eligible for AFDC, one for Aid to Family and totally disable in one wholly ineligible. For four people if they had all been eligible the shelter allowance would've been $44.00. That's $11.00 per person if they were all eligible. The petitioners here prorated and gave $33.00. The result would be the same if they had just established in $11.00 per individual need figure and simply added them up and disregard it the ineligible person there proration doesn't have any effect at all unless you first assume the state is obligated to provide for the needs of ineligible person. I submit to the Court that if you don't first assume that proration has no effect and of course we say the Court has never said, We have to do that and you shouldn't not.
Warren E. Burger: We'll resume there at 1:00. [Break] You may continue Mr. Young.
David H. Young: Thank you Mr. Chief Justice, may it please the Court. After the consolidation took place in 1973, the Shelter allowances in Texas for one to two persons were $33.00 for three to four persons $44.00 and five or more $50.00. The Ortega household had four persons in it so their proper shelter allowance would be $44.00 if they were all eligible. What the state did of course was prorate and come up with a shelter allowance for that household of $33.00. I've already attempt to discuss how that happens. I would like to take just a moment to discuss what the respondent wanted to have happen though. There were two grants remember in the household, one for AFDC, one for APTD. The respondent's desire as the record reflects I believe at page 221 that that initial $33.00 shelter allowance is being included for the two AFDC recipients. And another initial $33.00 shelter allowance be included for the one APTD recipient and of course the fourth person be disregard. So, their result would be a $66.00 shelter allowance for this household of three recipients as suppose to the $44.00 which the state would budget and puts figure they don't challenge in this litigation had all four persons it's been eligible and 50% increase over that amount and of course twice what the state maintains the proper amount would be for three individuals $33.00. The Fifth Circuit said that the state's proration policy violated the 1976 federal regulations because proration was a presumption that income was available to the eligible recipients. That's incorrect on several basis need as defined in the Social Security Act and by the state is not actual shelter cost in any given case. The Fifth Circuit also ignored the fact that there was no change in the shelter allowance for any given recipient; it remain in this case at $11.00. It assumed that the state must provide shelter for ineligibles; I've already mentioned I believe that that's an assumption which this Court has never indulged in consciously and which certainly urge not today. Of course not even the respondents alleged that the state has to assume the burden for providing for the needs of the personal needs of a none recipient if he lives with recipients. They don't assume -- they don't assert that the state has to provide medicate benefits for the none recipient and so we urge for the sake of consistency of nothing else that the state not be obligated to provide for the shelter and utilities of that person because they happen to live with the recipient. We certainly wouldn't have to if they did not live with the recipient. The Fifth Circuit also of course relies on this Court's decision in Van Lare. We maintain there are several distinctions between our case and Van Lare and several things that need to be said about Van Lare. One, the New York policies do mentioned the income and we say did treat the situation in New York as an income question as impose to a needs questions. They used the word in their policies and has to mean something. Van Lare is remarkable and that it criticizes a states for not prohibiting loggers for being in welfare homes. I say that's remarkable because that was a case where the two of the constitutional claims alleged were privacy and freedom of association. Van Lare also criticizes a state for taking no further action and that is into allegedly reduce. I would say not reduce but allegedly reduce the amount for shelter. The only thing else the state could do is cut off the grant entirely and that would run into King against Smith and any number of your prior decisions. The Court said that the only victim is the needy child but I would attempt to demonstrate that the amount of shelter need budget for the needy child is not affected by a proration. Not even the Fifth Circuit completely ignore the implications of its holding because it did say that when the none recipient owns the home that the proration is permissible. How that, is not an assumption of income but the other is has not explained. That's a distinction, it's not recognized in the 1977 HEW regulations upon which the Solicitor General relies and upon which respondents rely. But the Fifth Circuit's distinction is not challenged here because there's no petition for certiorari from respondents. Not incidentally, HEW prior to this time had not found any fault the proration in the record at 245 in the appendix at 40, there's instructions from the Dallas Regional Office to Texas to include prorated figures in the consolidated amounts and that even says in the record at 253 how HEW instructed the states to include its mistakes as well as the correct amounts and not attempt to determine which was which because the object of the fair pricing in consolidation was to come up with the average amounts that the state actually paid. Another way of saying all these is my last argument and that's the state discretion argument 601, 42 U.S.C. 601 clearly allows the states to set their standard of need based on the conditions of each state provide assistance as far as practicable. That's been recognized by this Court as I've said from King against Smith to as recently as Quern against Mandley right at the end of last term. We think that states have legitimate interest in this area such as a head in your decision in Wyman against James and Dublino against New York, Department of Social Services and the goal in this case is not to provide for shelter and utilities for people that are ineligible. We don't do where they -- where ever they live whether it was a recipient or not. The bottom line in the case of course is, is that there's not enough money in Texas to provide for the actual needs of these individuals. The respondents sought to attack that by attacking proration but to increase the need standard in Texas by some $9 millions is would be the case if these were done doesn't increase anything except the number of ineligibles getting benefits. It doesn't increase the state appropriation only result it would be would have as if the percentage control factor which is now 75% would have to be cut further and the money that would go to the nearly created ineligible recipients would be taken out of the pockets of the people that are admittedly eligible. Thank you.
Warren E. Burger: Mr. Skarda.
Jeffrey J. Skarda: Mr. Chief Justice and may it please the Court. We take issue with petitioner's characterization of the rent range formulas. He claims that our client was budgeted for $33.00 in that shelter allowance just like she was before her mother and sister moved in. What he overlooks the facts is that for a household of three and four recipients say would have been budgeted to $44.00 maximum and did received only $33.00 if Sanjuana Ortega who was a public assistance recipient as well as Poller had taken her child had moved in by herself without her mother who was necessary to take care of her. That household would've been budgeted $44.00 for rent but because the mother came in their household was only budgeted $33.00 and paid 75% of that. We believe this case is controlled by Van Lare versus Hurley, it involves a $9 million substantial question of which at least 65% as federal dollars and we and our brief at page 46 lay out the same budgeting arguments in Van Lare next to the budget arguments in the instant case and you can see that the dollar maximum works almost identical. We would also like to note as to his references regarding HEW's approval came before this Court's decision Van Lare versus Hurley since the Court' decision HEW has codified that regulation, it's in the first two pages of our brief and we believe there's a clear conflict between that HEW codification, this Court's decision in Van Lare v. Hurley and the state welfare regulation on proration. And I also like to make it clear we're not alleging $66.00 rent allowance for this family. We're alleging that they should receive the same rent allowance for any family of three persons or a $44.00 rent allowance. There's an other issue regarding whether or not we can raise our arguments for jurisdiction under Section 1343(3) in addition to Section 1343(4). At our brief on page 16, we lay out the cases of this Court that allow us since we're defending a decision below to put forth the arguments which would give us the same relief and that at least as jurisdictional grounds the way we read story parchment, company and Paterson parchment in Lang and United States versus American Railway Express Company are placed in this issues and our position to the petition for certiorari brings them before this Court. And we would like to begin now our jurisdictional arguments on Section 1343(3) jurisdiction because it's authorize by Section 1983 to its fourth right secured by the constitution v. of the Supremacy Clause. There is of course another argument under Section 1343(3) the end laws argument are the coextensive theory this would mean that the rights would come into the end law provisions through Social Security Act of Section 1983. As this Court said in Edelman versus Jordan there's no question that Section 1983 covers Supremacy Clause claims. The questions is whether or not we get jurisdiction under Section 1343. We stress 1343 because we believe it's a narrowest argument for this Court as this Court has held in Preicer versus Rodriguez alternative methods for review take Preston over Section 1983 cases. We think it's kind of valid that this case does come before this Court in a circumstances. Here, we are alleging a claim that's been held to be a violation to Due Process Clause --
Byron R. White: Your position is in any Supremacy Clause case is a 1983 case?
David H. Young: That's correct Your Honor. Any Supremacy Clause case raising actions by state officials --
Byron R. White: Yes.
Jeffrey J. Skarda: But the cover law requirement.
Byron R. White: Yes.
Jeffrey J. Skarda: And --
Byron R. White: Regardless of what the underlying rate is involved or what underlying claim is involve?
Jeffrey J. Skarda: If it involves a conflict and let me expand on that if I may Your Honor.
Byron R. White: So, you would say in your position that surely if you had a $10,000.00 in controversy you could bring your action under 1331?
Jeffrey J. Skarda: That's correct Your Honor. May I expand on your first question? We think that the reason of Supremacy Clause claim is somewhat narrower is that it's only where there is a clear conflict such as here between an HEW codification of this Court's decision a state regulation.
Potter Stewart: Mr. Skarda, I'm not sure I understand your position for me a very difficult case because it involves so much circularity of the arguments on both sides to this jurisdictional question. Let's assume there were no Section 1983, just assume that wasn't at books at all. Would it be your position that 1343(28) U.S. Code 1343 would provide jurisdiction of this case since it is based upon the conflict between federal law and state law and therefore ultimately upon the Supremacy Clause? 1343 says, The District Court shall have original jurisdiction of any civil action authorized by law of if he commits by any person to recover damages or secure equitable or other relief under any act of Congress -- excuse me, between the three, -- of any right privilege or immunity secure by the constitution of the United States and that would be the Supremacy Clause.
Jeffrey J. Skarda: That's correct Your Honor but 1343(3) also says, A civil action authorized by law and that's been interpreted to refer back. We think the Section 1983 to give us the authorized --
Potter Stewart: You need 1983 for your argument?
Jeffrey J. Skarda: For a cause of action yes Your Honor.
Potter Stewart: Do you?
Jeffrey J. Skarda: We believe we do.
Potter Stewart: Because only that Section is a law that authorizes this cause of action?
Jeffrey J. Skarda: That's our argument Your Honor.
Potter Stewart: Yes.
Jeffrey J. Skarda: And we have of course again believe that's what the Court found in Edelman versus Jordan. I would like to mention that we don't think our Supremacy Clause case has reached every possible welfare case. We're not here alleging a direct analogy with some kind of administrative procedure act in the federal District Courts for state welfare claims if --
Potter Stewart: If you have apparently you don't think that the Supremacy Clause case has to involve a law providing for equal rights?
Jeffrey J. Skarda: No, that's correct Your Honor.
Thurgood Marshall: What would happen --
Potter Stewart: Do you think the Supremacy Clause case is that 1343(3) covers and include many none equal rights cases?
Jeffrey J. Skarda: We don't think they have included the large number of none equal rights cases but we think they included those basic cases and conflict. They would not include for example just whether or not somebody was in capacity they did not for AFDC because there would no conflict between state and federal law.
Thurgood Marshall: Can you conceive of a case between G1eneral Ferguson, General Motors and General Electric under the Supremacy Clause under 1343(4)?
Jeffrey J. Skarda: By itself without 1983 then since it would not color of state law problem.
Thurgood Marshall: My answer to Justice White was Supremacy 1343 automatically, you don't really mean that do you?
Jeffrey J. Skarda: We think we need Section 1983 in the color of state law provisions Justice Marshall. No, we think the Sisson 1983 case is present case --
Byron R. White: Oh, unless -- there is a Supremacy Clause problem involved in anyway unless the state is involved.
Jeffrey J. Skarda: That's correct Your Honor.
Byron R. White: And that's usually I mean that's recurring instance where the Supremacy Clause is invoked --
Jeffrey J. Skarda: Yes, Your Honor.
Byron R. White: There is where there's been and assertion are on under state law?
Jeffrey J. Skarda: We agree, that's correct Your Honor.
Byron R. White: But you are saying that even though Congress seem to say in 1343(3) that only certain kinds of statutory claims would be vindicated soon as Supremacy Clause you can read each other statutory claims?
Jeffrey J. Skarda: But if we have the authorized by law provision such as Section 1983 here. And since in 1343(3) it does not say its right secured by the Constitution and it does not say right secured by the Fourteenth Amendment or particular items of the Constitution or does it limit to certain kinds of constitutional rights and of course this Court --
Byron R. White: But it does limit that the kinds of statutory claims it would reach?
Jeffrey J. Skarda: Yes, Your Honor. We believe it does.
Byron R. White: And yet through the Supremacy Clause you would say you can reach any statutory claim as long as there was a color of state law in both.
Jeffrey J. Skarda: And the clear federal conflict.
Byron R. White: Uh-huh!
William H. Rehnquist: Where will you be by a clear federal conflict presumably clear or unclear if there's a claim of conflict you'd have jurisdiction to adjudicate it?
Jeffrey J. Skarda: Mr. Justice Rehnquist, we believe that it would not reach for example a state law provision which is identical to the federal law provision.
William H. Rehnquist: And just no claims just arising under like a questions about construction?
Jeffrey J. Skarda: That's correct.
Byron R. White: Or the facts or something?
Jeffrey J. Skarda: For example, in our State in Texas there is provision that they cannot delay in giving assistance and must provide fair hearings. We're not saying that the Supremacy Clause claim would reach those cases because that provision happens to be identical to the federal statutory provisions and Social Security Act. But only where --
William H. Rehnquist: Well, wouldn't you have and as applied claim in other words even though the state and federal claims were statutorily identical? You could claim that as applied the state system was not delivering the thing the way the federal statute required?
Jeffrey J. Skarda: Certainly we would Mr. Justice Rehnquist. But in -- there's reasons apply claims don't reach all the -- this Court and that is because usually the states enforce their own state statutes and we don't but it is a possibility.
William H. Rehnquist: Well, that is not a practical reason. Now, that's not a jurisdictional basis?
Jeffrey J. Skarda: That's correct, Mr. Justice Rehnquist.
Lewis F. Powell, Jr.: Have you just abandon your suggestion a moment ago that there has to be a clear conflict between the state rule and the federal rule? What if they are precisely the same? Pardon me.
Jeffrey J. Skarda: If they're precisely the same unless there was a patter or practice which meant to the state rule even though written appears to be the federal rule but it is not apply as the federal rule is intended. Then we think we can make a case in Supremacy Clause.
Lewis F. Powell, Jr.: Well, then, couldn't in ever case couldn't pursue in the first instance to the federal court saying you don't think you'd win in the state court?
Jeffrey J. Skarda: No, Your Honor. We don't believe we can do it in every case for example if it's just a clear factual issue, there's no questions of policy involved whether or not someone is in capacity not for AFDC. We could not bring that in federal District Court.
Lewis F. Powell, Jr.: Well, you say is a matter of federal law you're entitled to some kind of a benefit if your client is incapacitated and the state has found him not to be incapacitated but they're wrong as a matte of federal law why aren't you still entitle to go in a 1983?
Jeffrey J. Skarda: Unless, they announce they have the right, they administer the program to decide incapacity unless say announce are rule which restricts the federal -- we would not --
Lewis F. Powell, Jr.: They say, we apply the same rule as a federal?
Jeffrey J. Skarda: Then, we don't believe that we could get into the federal --
Lewis F. Powell, Jr.: How do you reconcile that with Monroe against Pape, State of Illinois or City of Chicago said they announced exactly the same rule as the federal constitution required and yet the Court here how could you go right into the federal court?
Jeffrey J. Skarda: But of course in Monroe versus Pape, that was a Due Process violation for waking someone up at their home at night breaking down the door of their apartment and taken them to jail.
Lewis F. Powell, Jr.: Do you think it's due to the constitutional rule on the state rule, is it? Or do you say the test is different when it's a federal statutory claim in the federal constitution claim? I just don't follow you.
Jeffrey J. Skarda: We believe and it's a Supremacy Clause theory that the state rule either in practice or as written will have to be different from the federal rule.
Lewis F. Powell, Jr.: But it didn't in Monroe against Pape is all I'm saying?
Jeffrey J. Skarda: Of course the state didn't carry out their rule in Monroe versus Pape --
Lewis F. Powell, Jr.: Well, they didn't have a chance to find out whether they would or not because they said you can't sue unless you can go and sue in the federal court without suing the state court. Why couldn't you do that with a welfare claim also?
Jeffrey J. Skarda: Well, the only welfare you can to it where there is no state federal conflict such as our example the incapacity situation where the state simply decides the facts in a case.
Lewis F. Powell, Jr.: I know it would repetitiuos. Once again, tell me once more, why is that different fro Monroe against Pape?
Jeffrey J. Skarda: I think it's different from Monroe versus Pape because there is no question of conflict.
Lewis F. Powell, Jr.: There's no question of conflict in Monroe against Pape?
Jeffrey J. Skarda: We believe that Monroe versus Pape will come under our theory --
Lewis F. Powell, Jr.: I don't argue the rule against policeman beating up you know people when they search them at all.
Jeffrey J. Skarda: And we come under our theory in terms if that's applied, it's a pattern it doesn't grant to realize written.
Byron R. White: Well, 1343(3) dependently gives jurisdiction where the claim is constitutional, doesn't it?
Jeffrey J. Skarda: 1343(3) again Your Honor says authorize by lawsuit. There must be some kind of cause of action there.
Byron R. White: Well, I know but it also -- but it gives jurisdiction over constitutional claims?
Jeffrey J. Skarda: Yes, Your Honor. If authorized by the law.
Byron R. White: And if they or the kind in 1983 contemplates?
Jeffrey J. Skarda: That's our position Your Honor. Of course, we would in addition say that the very reason behind the 1871 Act Section 1983 and it's 1343(3) successor was to reach those questions of weeing notions of federalism. It was time of impeachment, there was Freidman Shapiro which providing the same kind of granting aid stuff we're talking about here, nutrition building schools, building hospitals, and there was a notion upon the land of the state's rights to notify. We think those concerns and that 1871 Act regarding the controversial provisions relating to whether or not federal officers would be free to act in the scope of their duty from interference with state bodies because right back to that kind of provision in the Freidman Shapiro where a Congress concerned whether or not these programs could be taken out. This Court has of course held in four cases suggested that that Supremacy Clause case is can be heard through Section 1343(3) for welfare cases Youakim versus Miller, Hagans versus Lavine, Townsend versus Swank and Carleson versus Remillard. Also they spelled out a system for deciding these cases. In that line of cases such as Perez versus Campbell where there's interference with the federal right to free start and bankruptcy.
William H. Rehnquist: Well, Hagans agains Lavine depended on the assertion of a substantial constitutional claim and then statutory claim with regard its pendent, wasn't it?
Jeffrey J. Skarda: That is correct Your Honor.
William H. Rehnquist: And what wasn't the issue we're talking about now reserved in Hagans against Lavine?
Jeffrey J. Skarda: In footnote 5 there was a specifically reserved, yes Your Honor and we believe it's now open for the Court's decision. We urge the decision the Court to find Supremacy Clause jurisdiction 1343(3) in this case. This case again, we must remember is one that can't satisfy the $10,000.00 amount requirement. We're talking about a difference of only about $10.00 in the averaging of these families' shelter allowance from $44.00 down to $33.84. The flat grant consolidation process in a similar $3.00 or $4.00 amount in averaging down to the utility allowance even though it means $9 million benefits of which we think at least 60% to 65% as federal dollars --
Byron R. White: If this case did involve more than $10,000.00 exclusive of interest and cost, it seems to be consider as I understand that that there would be jurisdiction under 1331?
Jeffrey J. Skarda: That's correct Your Honor.
Byron R. White: And why would that be?
Jeffrey J. Skarda: Because it would be a case arising under the constitutional laws. The laws provision of 1331 would bring soon the federal question jurisdiction if we had $10,000.00.
Byron R. White: Do you have some cases that saying the laws provision covers any kind of statutory or federal statutory claim?
Jeffrey J. Skarda: The 1331 case is we believe that decided to this Court of course that's not this case. I'm running through my head on with those cases it seems I --
Byron R. White: Well, never mind I know when you take you time but I just didn't know that it has been squarely decided here that maybe has that the and laws provision of 1983 refers to any federal statutory claim whatsoever?
Jeffrey J. Skarda: Oh no, now, as I taken 1331 no and I will address that argument at this moment if I may Your Honor.
Byron R. White: Well, --
Jeffrey J. Skarda: And of course for making that in our brief. We believe the and laws provision does reach that because there's actually two references in Section 1343(3) to 1983 that both they authorized by law provision I've spoken about earlier and the and laws provision. We also point to the unitary origin of 1343(3) and Section 1983 the originally Section 1 of the 1871 Civil Rights Act and the fact that the and laws? provision is positive law which must be heard by this Court. In many ways it sort of like an analogy to a private right of action but here dealing only with color of state law claims.
Lewis F. Powell, Jr.: Mr. Skarda, in that point you mentioned the two statutes have a coextensive in the sense. Would you say the words and laws in 1983 have the same meaning as the words act of Congress? providing for equal rights of citizens etcetera in 43(3)?
Jeffrey J. Skarda: We think they do Your Honor and of course that's necessary to reach jurisdiction. The gap is whether or not they should be read together.
Lewis F. Powell, Jr.: So, then under the and laws provision it has be laws providing for equal rights and effect then you have to say do you not that the Social Security Act is an act providing for the equal rights of citizens?
Jeffrey J. Skarda: No, we would argue only Your Honor that you have to say the 1983 is such an act and in fact we regard that equal rights language is a short hand reference back to 1983 and we cited in our brief to some revise our arguments that that is indeed what happened. We also --
Lewis F. Powell, Jr.: Unless you just told me though that you do acquit the words and laws in 1983 with the words act of Congress providing for equal rights in 1343(3)?
Jeffrey J. Skarda: Yes, Your Honor but we think once you get back to Section 1983 you don't carry over the equal rights limitations.
Lewis F. Powell, Jr.: So, they're not coextensive are you?
Jeffrey J. Skarda: We claim that they coextensive in terms of 1983 only that if it's not -- if we say if it's in 1983 then it's encompass by 1443(3) because they both started out in the same place.
Lewis F. Powell, Jr.: Well, then going back to my first, you do not take the position that the words and laws in 1983 are coextensive with the words act of Congress providing of equal rights in 43(3)?
Jeffrey J. Skarda: No, we would then --
Lewis F. Powell, Jr.: You say that 1983 provision is broader.
Jeffrey J. Skarda: No, we're saying that it's --
Lewis F. Powell, Jr.: You must --
Jeffrey J. Skarda: That we must come within -- once again within 1983 we automatically --
Lewis F. Powell, Jr.: But in order to get within 1983 you must construe the word laws in 1983 to be broader than the concept of laws protecting equal rights.
Jeffrey J. Skarda: That's correct Your Honor.
Lewis F. Powell, Jr.: Therefore, you do not take the position that the two statutes are coextensive?
Jeffrey J. Skarda: Well, we call it a kind of coextensive in this Your Honor, but we're talking really about level (Voice Overlap) --
Lewis F. Powell, Jr.: Well, coextensive to the extent that it helps you but to the extent that hurts?
Jeffrey J. Skarda: That's correct Your Honor and of course our reasoning again is where that language came from in the 1875 provision.
Lewis F. Powell, Jr.: I understand.
Jeffrey J. Skarda: And as this Court well knows and that 1875 provision was in particularly well laid out that in our brief we indicate that there were some trying to refer back and pick up Section 1983 and of course if --
William H. Rehnquist: What was that 1875 that Congress enacted for the first time general federal question jurisdiction, wasn't it?
Jeffrey J. Skarda: That's correct Your Honor.
William H. Rehnquist: Wouldn't have been kind of strange for them to put a $2,000.00 or $3,000.00 jurisdictional limitation on that kind of jurisdiction and still have treated as broadly as you say they do 1343?
Jeffrey J. Skarda: Of Course 1343 only refers again to our color of law claims and as we understand the 1875 legislation on general federal question that there was no discussion of this particular point and then a relationship that the 1875 provisions really taken out if you would in the absence of any reference to 1331 jurisdiction. Now, of course regardless of the legislative arguments, we believe that this Court's decision in Jones versus Mayer makes it clear that -- no, excuse me I'm talking about another case. Let me move back if I may to the kinds of cases that we have here at this time. I've pointed out that this is a $9 million question. I think I need to also point out that it means determination from AFDC assistance back in March 1973 when I followed our case to prevent this determination of 2700 welfare recipients of which one is in our case -- the StafFerguson family. It also reduce benefits 328,000 almost turning 29,000 welfare recipients. We believe that welfare recipients in this country need a form -- need the possibility choosing a federal form; the kind of unique form mentioned in Hage and Mitchum versus Foster a kind of form which is more familiar with the tears of federal regulation with the capacity to read the legislative history and to have tolerance for reading the federal regulatory pronouncements. The kind of form that can offer speed and uniformity its decision making and perhaps some partiality These are served reasons addressed in the third purposes of Monroe versus Pape regarding whether or not these forms are available. We also feel that it's not going to have a lot of case the federal case like to adopt their Supremacy Clause arguments and so testified has Charles Right before congressional committees considering expanding and taking t he $10,000.00 requirement of 1331 jurisdiction as well as United States Court administrative officer. And finally, we need as this Court whether or not its decision in Hagans has really worked and whether or not in elaborate distinction between substantial constitutional arguments in the kind of court time that it has be placed on them is exactly what this Court intended. That could be avoided by deciding this case on these grounds and if we would, we would appoint to this Court's decision to the Second Circuit decision Andrews versus Maher which noted we note the irony of having to spend so much time on effort on questions for jurisdiction when the underlying issues on the merits seem comparatively simple. Again, we would ask this Court to find jurisdiction on our Supremacy Clause arguments as well. I would like now to turn briefly if I may to the 1343(4) claim, the allegation of can do it jurisdiction.
Byron R. White: Of course the Second Circuit protection Supremacy Clause --
Jeffrey J. Skarda: They do Your Honor and --
Byron R. White: Respondents having said that?
Jeffrey J. Skarda: And the labor the constitutional claims for pages and pages and many decisions. We also feel that in a way these some of these kind truly have to be cooked up and perhaps that might the basis -- to base a notion of the constitutionality of these claims. In the five minutes remaining I would like to turn to the conduit jurisdiction. Petitioner points in his brief to the fact that it's a technical amendment. We have discovered and filed the supplemental brief in this case that the green brief provisions where 1343(4) was intended to have much broader consequences as in vision by the justice department before the bill was sent to Congress and was precisely handle these claims. Of course only speculation would tell us what was in the mind of Congress when it said the words statutes laws providing for the protection of civil rights including the rights of vote. But we think in that speculation, we should be they were the fact in addition to our green brief and the US Department of Justice memos. The fact, the act itself spoke to strengthening the Civil Right statutes.
William H. Rehnquist: Well, would you claim that the Social Security Act is an act providing for the protection of Civil Rights so that 1983 is?
Jeffrey J. Skarda: Just 1983 Your Honor and of course manual solar's comment also pick up these notes that breadth to the jurisdiction and the debate in the 1957 Act.
William J. Brennan, Jr.: In both of your arguments you have to go back through 1983, don't you?
William J. Brennan, Jr.: That's is correct Justice.
William J. Brennan, Jr.: Right.
Jeffrey J. Skarda: And there are law view articles reading Hague v. CIO and Bomar v. Key available at that time and cited in our brief which deal with those 19 -- with to get problem between 1343(3) and 1983. We think that was at least on the mind of some of the participants in the 1957 Act and of course disregarding --
Thurgood Marshall: Do you --
Jeffrey J. Skarda: Yes, Justice Marshall.
Thurgood Marshall: What the Hague versus CIO decide about anything?
Jeffrey J. Skarda: We believe Hague versus CIO address whether or not interference with the federal right under National Labor Relations Act and of course they were dissents on whether or not this is really a free speech right of assembly case. And there was Justice Stones famous dissent which is now been settled in Lynch versus Household Finance that there was a personal property rights distinction. But in many ways it's a kind of Supremacy Clause claim that we're arguing here where there's a federal right in the National Labor Relations Act in the city ordinance which is not allow discussion meeting to talk about the Act. So, we think Hague supports our case and is an example of the kind of Supremacy Clause cases that we would ask this Court to find.
Lewis F. Powell, Jr.: Have you finished your answer with Justice?
Jeffrey J. Skarda: Yes.
Lewis F. Powell, Jr.: If you're correct Mr. Skarda and you maybe of course that the word laws in 1983 it much broader than the or is somewhat broader than the concept of equal rights. Does it cover every federal statute and is it therefore unnecessary for the Court to consider whether particular statutes like the Securities Act and so forth imply causes of action?
Jeffrey J. Skarda: That's why it's somewhat broader than our Supremacy Clause argument but again, 1983 is limited to state action.
Lewis F. Powell, Jr.: Yes.
Jeffrey J. Skarda: And so, we don't only involve suits against the state party defendant.
Lewis F. Powell, Jr.: But it would apply if I understand your concept correctly to any federal right given to an individual citizen as against state authority?
Jeffrey J. Skarda: Yes, Your Honor.
Lewis F. Powell, Jr.: And you would never have to us we did for example in the Bucky case last year consider whether or not there was an implied cause of action under Title 6. We'll could just right rely on 1983 there was a federal statute and so forth.
Jeffrey J. Skarda: And of course our reasons for that again the historical reasons that Congress was concerned about notions of federalism at that time and pass the Act to enforce 1443.
Lewis F. Powell, Jr.: Your fundamental difference is the jurisdictional amount applies to suits between private citizens and there's no reason for jurisdictional amount when the claim is by the individual against the --
Jeffrey J. Skarda: Exactly, Your Honor. And of course if the 1343(4) meant nothing in 1957 after this Court's decision in Jones versus Mayer it means substantial amount for jurisdiction 1981 and 1982. And this Court has called Section 1983 a Civil Rights Act and as Ladies Moore versus County of Alameda and as recent as Robertson versus Wegman and Munell versus Department Social Services last term. And of course it's been a premier to in our Circuit.
Byron R. White: But you would I suppose you would say that if your view of 1983 the and laws provision is right it must covered by 1983 cover a lot of laws other than Civil Rights law?
Jeffrey J. Skarda: It is a broader argument Your Honor than the Supremacy Clause claim.
Byron R. White: I wasn't asking about a Supremacy Clause, I was asking about --
Jeffrey J. Skarda: 19 --
Byron R. White: 1334(4), it says Civil Rights refers to Civil Rights law?
Jeffrey J. Skarda: Okay, get our from that -- but then again it's almost identical the and laws argument in terms of number of cases because it refers back to Section 1983 which is requires color of law provision to get us in there.
Byron R. White: I understand that.
Jeffrey J. Skarda: So, there would be somewhat identical in terms of coverage under 1983 as Civil Rights statute.
Byron R. White: Well, I don't know. I think there's enough a lot of federal statutes that somebody maybe -- that aren't Civil Rights laws that could be covered by 1983 then it wouldn't be Civil Rights statutes.
Jeffrey J. Skarda: Of course we're saying all we are and it's been criticized at the chicken egg circular argument is that 19 -- all we are saying is that 1983 is a Civil Right statute. That sounds like chicken in the egg argument but in answer I point out that 1983 and the 1871 Act started together and that 1334 Amendment was broad in to solve some of the jurisdictional problems in gap that have been developed by reviso it's not over the years. Thank you.
Warren E. Burger: Mr. Young, do you have anything further? You have at about four minutes left.
David H. Young: Okay, thank you Mr. Chief Justice, may it please the Court. Back to the Ortega Households for just one second that please remember the groupings of sizes of household one to two people get $33.00 for shelter, three to four people get $44.00 for shelter, five or more get $50.00 for shelter that $11.00 difference between the $33.00 and the $44.00 for the Ortega Household is a result to that grouping of the shelter allowances between the various sizes of household it's not a result of proration. With regard to the new HEW regulations that purport to codify this Court's decision in Van Lare. Of course those were not available or considered at all by the District Court. They were promulgated prior to the Fifth Circuit's decision and the Fifth Circuit had them available at the time of its decision but it did not based its decision on them and did not cite them or make any reference to them. I would also point out that the state's practice in this regard is of long standing, it's not something that post dates Van Lare are those regulations. It's not -- wasn't created in perpetuity wherever it comes from it's been around a long, long time. It wasn't created with regard to Van Lare of those regulations at all and that under this Court's recent decision in Quern against Mandley the correct test to see by what standard a state's provision such as it should be tested is the standard that the state says it meets. Of course in Quern against Mandley it was a switch from emergency assistance to special needs in AFDC but you said the test was, Well, they characterized the special needs, doesn't meet those standards. We characterized it and did long before Van Lare is in needs standard and I suggest the proper question is whether it meets the needs criteria. The only limit that I noted in the respondent's brief as to jurisdiction is put in footnote 23 where they say that they recognized limits on jurisdiction when Congress specifically acts to prohibit jurisdiction. But I would submit to the Court that that is a backwards argument the federal District Courts unlike the state District Courts in Texas are not courts of general jurisdiction. The District -- Federal District Courts are only suppose to have jurisdiction where the Congress grants jurisdiction to them. And it's -- the only broad grant I was ever aware of that was sometimes utilize to take jurisdiction in wide variety of cases was Section 10. I believe it was at the federal administrative procedures act. That was frequently interpreted where the issue was addressed that to authorize this kind of a test in this Court in Colafado against Sanders said, No, that's not what -- that there is no such independent basis for jurisdiction. That was in part based on a statute that Congress had passed just prior to your decision that remove the $10,000.00 limit for jurisdiction against federal officials. Congress is considering such legislation at this time with regard to the states and it's my understanding that the House has passed HR9622 which would remove it as to states. Of course that action of the House would be a nullity under the respondent's theory. With regard to their reply brief, the real legislative history is what the Congress said. It's not the memo dredged up somewhere from within the Justice Department and in that respect it's interesting to know that when the Solicitor General filed his amicus brief in this case he said there was no independent federal interest in the resolution of the jurisdictional question. I find that in every remarkable statement considering when spend a good deal with the morning talking about the constitution laws in 1983 that regardless if it were the Solicitor General's opinion that these provisions referred to all laws surely he would taken the opportunity in his amicus brief to tell us some. Thank you.
Warren E. Burger: Thank you gentlemen. The case is submitted. We'll hear arguments next 5324, Gonzalez against Young and others. Mr. Gardner, you may proceed whenever you're ready.
Theodore A. Gardner: Thank you Mr. Chief Justice, may it please the Court. Gonzalez versus Young we set in tandem argument with the Chapman case which immediately proceeded it. I noted the Court's questions and I'd like to address myself to them directly. Mr. Justice Stevens and Mr. Justice White seem to have some difficulty with an extensive interpretation of the and laws provisions in 1983. I submit that that perception is contrary to what Congress is all about when it enacted 1983. I submit further that that perception is contrary to the wording of the statute. Let me go back for a minute if I may. In the period 1868 to 1871, federal government was faced with a situation where several state's rights groups contended that not with standing the federal constitution. The ultimate legal authority to determine questions of federal law repose in the states. This was at the time when the Freidman's Bureau Act was not being enforced. As a result to that situation, President Grant went before the Congress and effectively said, The laws of the federal government are not being enforced. Congress has to act pursuant to the Fourteenth Amendment. In regard to that, Congress enacted the Civil Rights Act of 1871 which is the precursor of 1983 and 1343. It was in point of fact congressional concern about none enforcement of federal rights by the direct interposition of state power that in fact was the focus of the entire juridical mechanism that we now know has 1983 and 1343. Viewed in that light there is not one reason to interpret 1983 in a restrictive manner in truth to narrow why is 1983 the basis and penalizes the entire congressional problem that was addressed in 1871. We must keep in mind here that we are not asking this Court to interpose each judicial power between private parties nor between situations involving simply federal law and none $10,000.00 questions. But we are talking about here is the federalistic and taginism between states and the federal government. Let's for a minute just dwell on the facts of both --
Byron R. White: The case 1871 statute have the words and laws in it?
Theodore A. Gardner: The 1871 statute only used the word constitution. It was not until the amendment in 1874 that the and laws was included. I do not believe that is significant for the following reasons. Number one, in 1871, Congress could only act pursuant to Section 5 of the Fourteenth Amendment. Accordingly, when Congress spoke in 1871 of rights arising under the Constitution, there were clearly referring both to the Constitution itself and to the implementing legislation. Number two, the Constitution through the Fourteenth Amendment directed to the states of necessity incorporates the privileges immunities of citizens of the United States. From his long ago, as the Solicitor has cases it has been made clear that the rights of citizens of the United States spring both from the Constitution and from the federal statutes. Number three, in point of fact at the time that 1983 was enacted in 1871 solely with the constitutional wording it took cognizant of the annexation with the Supremacy Clause which in fact spoke of the primacy of federal law. So, what you had Mr. Justice White was in 1871 congressional concern about both constitutional rights and rights under federal statutes and in point of fact this was made clear three years later.
Byron R. White: Right under the federal statute enforcing the Constitution.
Theodore A. Gardner: Those rights Mr. Justice White would include of necessity all rights under federal law for the three reasons that I mentioned. Number one, they would necessarily embrace the privileges and immunities of citizens of the United States. Number two, they would embrace any substantive statutes that were passed by Congress pursuant to Section 5 of the Fourteenth Amendment. And number three, they would embrace Supremacy Clause which itself embraces all federal statutes. So, I think --
William H. Rehnquist: Well, if you feel that you don't need the and laws language would you have real to have with Swift versus Wickham, don't you?
Theodore A. Gardner: I feel that we need the and laws language today. I feel that the lack of the and laws language for that three year Hayedes that is from 1871 to 1874 --
Byron R. White: Under your view, you don't need it in your case?
Theodore A. Gardner: Excuse me.
Byron R. White: Under your view, you don't need it in your case?
Theodore A. Gardner: Yes, you don't need it if you read and laws is being redundant. I don't read it necessarily as being --
Byron R. White: Well, but don't you read it is being redundant?
Theodore A. Gardner: No, not necessary. I don't think it's redundant, what I'm saying is that Congress at that time included in its concept of the Constitution both Constitution and laws but I don't think it's redundant for them to express --
William H. Rehnquist: Well, do you rely on the and laws provision in this case at all?
Theodore A. Gardner: Yes, I do. I rely on to the extent that it in fact this case clearly deals with the federal statutory right. And in point of fact, I did not plead any other constitutional basis for jurisdiction and indeed that's precisely why the case is before --
William H. Rehnquist: Well, don't you plead the Supremacy Clause claim?
Theodore A. Gardner: Yes, the Supremacy Clause claim is of necessity included in the pleadings because it comes under 1343.
William H. Rehnquist: If you're right about to see your Supremacy Clause claim, what do you need and laws about?
Theodore A. Gardner: If I'm right about my Supremacy Clause claim I do not need the and laws you're correct.
William J. Brennan, Jr.: You have at least two alternative arguments?
Theodore A. Gardner: I have two alternative arguments and what I'm saying is that there are three arguments --
Byron R. White: But if you're right about the one and laws word are redundant?
Theodore A. Gardner: Yes, that's correct if I am. Mr. Justice Rehnquist, in answer to your question about Swift versus Wickham I think that that case in fact supports our position. In Swift, you had the following problem as a result of ex parte Young, it was decided that the federal courts could interpose themselves and enjoin actions by state officials. This case rise to a political situation under what circumstances or the federal courts can now sit and enjoined state's statutes. In a sort of compromised situation, there was enacted at three-judge court procedure which was enacted solely to lay the state's fears that a single federal District Court judge would have the power to in a sense interpose himself into the mechanism of state government. Now, during the progeny if you will or the paradigm of that legislation, we find that the Court carved out several exceptions and one of them was where there's a conflict between federal law and state law. The Court basically said, This is not so uniquely a state problem. That states would be all that concerned about it and would require us in a sense to convene a three-judge court rather this is by its very nature IE by the existence of the federal statute; a federal matter. And accordingly the court said, There's probably not the same kind of state concern that would exist if we were dealing solely with an isolated state statute. Now, I submit that that rational is uniquely applicable to --
William H. Rehnquist: I don't think I follow, you say that we're dealing only with the federal statute but you're dealing with the federal statute that's claimed to override or preempt the state statute, aren't you?
Theodore A. Gardner: But what I'm saying is that in the cases under Swift, the exception to the convocation of the three-judge court occurred when you had both of federal statute and a state statute as suppose to simply a state statute and I'm --
William H. Rehnquist: Don't you have a federal statute in the state statute here?
Theodore A. Gardner: Yes, I do and I'm saying that there is not the same state concern in those situations and that's precisely why this type of case is readdressable and should be brought in federal court. What I'm saying is it doesn't accept all the delicate bounds of federalism. It's not as though the state court was in a sense interposing itself again in matters of pure state law. What you have is assuming federal statute and who -- which body is most geared to if you will is the most natural repository of experience with federal law. It's the federal court, I don't mind pointing out in terms of practicality that as a welfare attorney when you go into a state court and start asking at the outset for federal judge to interpret the federal statute he run into very many difficulties. Let me just cite a few for instance in the State of New Jersey where I practice. You often that with the argument that federal statute that must mean that HEW is in an indispensable party. We don't have any jurisdiction over a federal agency, go to federal court that's in the Atchison case which is in the appendix to my brief. In --
Thurgood Marshall: Those state courts can give a federal court jurisdiction?
Theodore A. Gardner: Excuse me?
Thurgood Marshall: Those state courts nor you can give the federal court jurisdiction?
Theodore A. Gardner: No, I believe that Congress gave the federal courts jurisdiction very clearly.
Thurgood Marshall: Now, you're saying that the state courts in New Jersey give us jurisdiction?
Theodore A. Gardner: No, if I was saying that I didn't mean to. What I was pointing out was that I think that the state courts in point of fact view this case in the same that we're urging it should be viewed and that is the repository for the interpretation of the federal statute should be the federal courts. That's all I was trying to say.
Thurgood Marshall: Now give me the decision of any Court that said that.
Theodore A. Gardner: The name of case is in this appendix to my petitioners brief; it's Atchison versus the Department of Institutions and Agencies to the State of New Jersey and there was a conflict there urged between a federal food --
Thurgood Marshall: Does that apply to this case?
Theodore A. Gardner: No, it applies in terms of its rational.
Thurgood Marshall: Well, why is it that a federal judge can read English better than a state judge?
Theodore A. Gardner: I don't think that that's the point Mr. Justice Marshall.
Thurgood Marshall: Well, isn't the Constitution written in English?
Theodore A. Gardner: Yes, it is Mr. Justice Marshall. I think though that the federal courts have a certain experience dealing with the federal statutes dealing with the federal mechanism and I think that in terms of Article 3, Section 2 of the Constitution, the federal judiciary power clearly extends to cases dealing both with the Constitution --
Thurgood Marshall: Only if you say that federal judges understand the Constitution better than state judges?
Theodore A. Gardner: I don't think I was saying that. I think what I was saying was that federal judges are more experienced than learner with the interpretation of federal statutes then or state judges. I was saying that when the focal point of the --
Thurgood Marshall: Now, do you also think the state judges are better able to understand state laws than federal judges?
Theodore A. Gardner: I don't think that that's --
Thurgood Marshall: Do you?
Theodore A. Gardner: No, I don't think that's the proper --
Thurgood Marshall: Because if you do please join us on the several case, will you?
Theodore A. Gardner: Yes, I think that that's sort of like placing in somewhat of bond. I think there's a natural --
Thurgood Marshall: What about if I tell you to know your theory that a federal judge knows more federal law than a state judge?
Theodore A. Gardner: I think he does.
Thurgood Marshall: Huh?
Theodore A. Gardner: I think the federal judge does know more federal law than a state --
Thurgood Marshall: The date that he arise on the bench?
Theodore A. Gardner: No, certainly not. But I thin that there is the experiential level and I think that that's not -- that of course is not the juridical reason why this case should be decided in favor of the petitioners. Because I'm merely stating that that's a practical reason --
Thurgood Marshall: In fact, urging to get to that point where you're going now.
Theodore A. Gardner: Yes, I think that in point of fact though the federal judiciary is more equipped to interpret federal statutes. In addition, to the New Jersey problem that I mentioned you have a problem for instance in Mississippi where there's no right to go in to state court on appeal in one of these types of situations. So, what I'm saying is that there really is not what might be tend to viable alternative to have a federal statute interpreted other than the federal court. And I would ask the Court that when I consider the language of this statute of 1983 and 1343 to please keep that in mind and to not act as though. Well, this is in some sense and academic exercise on related to the realties of the practice. Let me move --
William H. Rehnquist: If you have a Supremacy claim you can always bring it here if it's turned down by the state courts then.
Theodore A. Gardner: That would be the only circumstance on an appeal, that would be the only constitutional but as we argue in this case we believe that the jurisdiction rest even a part from the Supremacy Mr. Justice Rehnquist and that would be through the interconnection of the and laws Clause of the 1983 and the Act of Congress providing for the protection of equal rights and the Act of Congress providing for the protection of Civil Rights. So, I think that there are three alternative ways in which jurisdiction can be interpreted here and we feel that all three of them are valuable and it wouldn't be -- it would not justify our clients to simply be force to rely in each instance on an appeal under the Supremacy Clause from the state Supreme Court to the federal Supreme Court, particularly, since you have an issue federal statutes.
William H. Rehnquist: Well, I thought you were saying that there really isn't any alternative if in some areas that you simply can't get your federal question adjudicated unless you're allowed to have jurisdiction in the federal courts.
Theodore A. Gardner: Well, of course at the present time it's very, very difficult because some of the arising under cases have been interpreted to exclude for constitutional reasons -- the Supremacy Clause and if in point of fact, the only thing that we were left within a constitutional sense that is the only thing that would give us a clear right of action in terms of an appeal to United States Supreme Court was that Supremacy Clause issue. It could be difficult but certainly if we were trying to appeal to the Supreme Court on the ground of a conflict 1983, 1343 and laws we have to go by cert and as you can well imagine that's very difficult. So, again, I think this point --
William H. Rehnquist: That's a burden that lots of litigants --
Theodore A. Gardner: No, I understand that and there are certainly a mechanism at a reason for that but I think that nowhere will you find a situation where you have a direct federal statute in conflict with the state statute having a federal courts say but we really don't have jurisdiction over that. I mean, I believe in the case prior Mr. Justice Stewart said well, when we're dealing with the federal statute we're of necessity dealing with the question of federal law. This is not I urge you to remember; $10,000.00 consideration. In the $10,000.00 area Congress said this, If you have a right under a federal statute, Congress may decide to not give jurisdiction. For reasons of judicial administration in the like. That's a far different question than the delicate balance of federalism which is subsume in our case and that is, has Congress ever indicated that it will not afford a citizen of the United States a cause of action and jurisdiction in federal court when the deprivation of the federal right is by virtue of intervening state action. I submit that Congress has not only not said that has said exactly the contrary in 1983 and 1343. Let us move if we will for a minute to an argument that was touched on previously -- 1343(4). Let's now --
Lewis F. Powell, Jr.: Are you through Mr. Gardner with your discussion to 1343(3)?
Theodore A. Gardner: I'm not through with it. No, it's just a question I have to say.
Lewis F. Powell, Jr.: I'm not quite sure I understand whether you take the position that the words and laws in 1983 are broader or coextensive than the words by any act of Congress providing for equal rights in 1343(3)?
Theodore A. Gardner: I categorically take the position that they're broader and they have to be --
Lewis F. Powell, Jr.: So, there is a gap between the two state?
Theodore A. Gardner: So -- well, I'm saying that --
Lewis F. Powell, Jr.: I mean, there's --
Theodore A. Gardner: There's not a gap if you read providing for the protection of Civil Rights as being coextensive with 1983. I don't think that gap exists. I certainly think that the words and laws in 1983 embrace all federal statute. Did -- do you see that that difference so in saying that and laws is broader than act of Congress providing for the equal rights of citizens. I'm not admitting to a gap between 1343 and 1983 at all.
Lewis F. Powell, Jr.: Because you say that part of the function of 1983 is to provide for equal rights of citizens and it has additional functions and those additional functions maybe this jurisdiction to perform those additional functions conferred by subparagraph 3, that's --
Theodore A. Gardner: That yes, exactly it's suppose can do it in a cause of actions in somewhat the rational in the Ruby but that was accepted in both Vasquez and in Gomez. And again, it tracks back to what Congress was all about in 1871 which was protection of federal statutes. I mean, it seems to me that at the bottom of this case if you accept the interpretation of my adversaries, you're of necessity riding in a conclusion that somehow Congress back then was only interested in what might be called two statutes -- the Enforcement Act of 1866 and the Civil Rights Act of I believe it was 1870 which dealt with this question of racially quality. But I think again the history doesn't support that because the Thirteenth Amendment dealt clearly with racially quality and the Thirteenth Amendment extended to private parties, it didn't even need stay action. It was to any -- if you will any deprivation of rights because of racially quality. Now, if we were here today with the Thirteenth Amendment, okay, then I would not be able to argue that and laws embraced all federal statutes. But the game changed between 1866 and 1870 with the Fourteenth Amendment and the problem there was that they wanted -- Congress wanted federal rights to be vindicated. And what they said was, We'll limit the breadth of our juridical interest by saying it's going to be state action that interferes with you. But with that limit, there are no other limits these of the nature of the rights that we want to indicate it.
Lewis F. Powell, Jr.: So, you would say that whenever you have the claim against the state agency or person acting under color of state law in which you assert to federal basis for your claim, you never need to enquire into other Congress intended to apply a private cause of action because 1983 will always provide the vehicle for the cause of action?
Theodore A. Gardner: Yes, and in point of fact I disagree with previous counsel. I think that situation exist even in as applied situation. I think that there would be just simply too much --
Thurgood Marshall: Well, then Civil Rights is just surplusage?
Theodore A. Gardner: In which Mr. Justice Marshall, Civil Rights is in surplusage in 1343(3) and (4) because 1983 is the quintessence if you will of the Civil Rights Act that's why it's not surplusage but 1983 --
Thurgood Marshall: But why is it there? You don't -- you say you don't need it.
Theodore A. Gardner: Yes, you do need -- you still need 1983.
Thurgood Marshall: Do you need Civil Rights?
Theodore A. Gardner: You do need Civil --
Lewis F. Powell, Jr.: Subparagraph 4 surplusage in your theory, you never need subparagraph 4?
Theodore A. Gardner: You never need subparagraph 4 because there's jurisdiction under subparagraph 3. Yes, that's a wholly different issue. That's -- if you can view to such and add on jurisdictional can do it but that's not necessary if we get through 1343(3). And I think it's very important why we're on --
Potter Stewart: But you need the phrase act of Congress providing for equal rights of citizens in three or act of Congress providing for the protection of Civil Rights and four, in order generically to invoke 1983?
Theodore A. Gardner: Correct, in order to invoke them for purposes of jurisdiction.
Potter Stewart: Generically, and then when you invoke 1983 you see exactly what it says and it says something beyond what is genus would imply?
Theodore A. Gardner: Yes, and I think this Court noted in the footnote in Lynch and I think Mr. Justice Ferguson when he was talking about gas which was having when he was talking in price dealing with 241. The plain English language says and laws. I mean, it doesn't restrict that it doesn't say every person when the color of any statute etcetera by the Constitution and laws providing for the protection of Civil Rights and that's interesting because --
Byron R. White: Well, Congress never needed that before then?
Theodore A. Gardner: Excuse me.
Byron R. White: Congress never -- it was unnecessary for Congress to had in Section --
Theodore A. Gardner: Yes, exactly. I think that Congress didn't have to if you accept my interpretation of 3. If you don't accept my interpretation of 3, then of course from my view point Congress didn't need too. And the very interesting about that question is that seems to be exactly what --
Byron R. White: Well, I don't accept your interpretation of 3 then you can accept your interpretation of 4 either in the sense that Civil Rights isn't just an automatic reference to 1983?
Theodore A. Gardner: Well, I think that that brings up a whole different issue. I don't agree with that statement. I think that your reason for none acceptance of 3 might be that and I'm just doing this argue when though might be that it doesn't satisfy the Equal Rights Bill but I think even if he didn't satisfy the Equal Rights of 3 it clearly satisfies the Civil Rights of 4 for a number of reasons. Number one, John versus Meyer went back and an excise 1972 a companion statute dealing with the rights of the purchase and I think that this Court just last term in Munell indicated very clearly that 1983 is in fact a Civil Rights Act. In Moore versus County of Alameda when 1988 was distinguished the Court specifically said, 1988 is not an act providing for the protection of Civil Rights unlike 1983. In Rachel versus Georgia when we were dealing with removal, the Court said, The precursor to the removal statute is not an act providing for the protection of Civil Rights like 1983. So, what we have is a litany of acceptance of the proposition that 1983 is in point of fact and point of syntax and point of history and act providing for the protection of Civil Rights. So, to that extent Mr. Justice Stewart even if you didn't accept my argument under 3 for the reasons that it doesn't flesh with Equal Rights. It would not follow a forth certiorari that it doesn't satisfy 4. I only wanted to make clear that if you accept my argument with 3, it doesn't make much difference for our purposes whether you --
Potter Stewart: No, but if you're arguing on 4 has the same problem with it because you then have to say and laws and 83' is broader than Civil Rights in 4 --
Theodore A. Gardner: Both Mr. Justice Stewart.
Potter Stewart: So, you get the same --
Theodore A. Gardner: Mr. Justice Stewart, both arguments have to --
Potter Stewart: Requires that and laws be a broader concept on the --
Theodore A. Gardner: Require the and laws exactly. There's no way that -- so, it's really like if you will two issues with the same sub-issue. You can't get around the and laws but I say to you again, it does say and laws it does not restrict.
Potter Stewart: Has any court ever adopted this line of reasoning?
Theodore A. Gardner: Yes, I believe that Justice Learned Hand in Bowmar versus Keith accepted this line of reasoning where the problem with the New York school teacher who went on jury duty pursuant to a federal statute and loss her job and brought an action under 1983 and 1343 and if I recall in that case, the Court said that it's clear that these statutes were meant to deal with federal rights -- federal statutory rights. So, I think that there is support. I also think that in Edelman versus Jordan Mr. Justice Rehnquist noted that it's somewhat clear that 1983 embraces Civil Rights Act under its and laws provision. So, I think --
William H. Rehnquist: Well, isn't one thing to say that 1983 embraces Civil Rights Act as you put in the sense that it creates a cause of action for people who have been damaged by violation of some substantive right created else where?
Theodore A. Gardner: But you know I think that the quote that I was referring to in this Court would embraces the Social Security Act. In Edelman versus Jordan, the Court noted that 1983 embraces the Social Security Act under its and laws Clause. And I'm saying that that rational would support my answer to Mr. Justice Stewart's request.
William H. Rehnquist: Well --
Theodore A. Gardner: I'm sorry I have misstated.
William H. Rehnquist: Yes, to get back to your treat of 1983 does it necessarily follow that 1983 is itself a law protecting Civil Rights, could not one argue that it is simply an Act which gives you a cause of action if some Civil Right created else where has been infringed?
Theodore A. Gardner: I don't think it can be clearly argue that way because that misperceives the entire rational of this Court in examining Board versus Florida as where noted their complementary germination. And number two, the key wording of these statutes does not require the creation of. It talks about secured by protection of which is of necessity what 1983 and the Fourteenth Amendment was all about. So, I don't think that's a valid distinction.
Thurgood Marshall: Mr. Gardner, which case was that where we said that Civil Rights included welfare?
Theodore A. Gardner: In Edelman versus Jordan, I believe that the Court indicated that the Social Security --
Thurgood Marshall: I didn't say indicated, I said held.
Theodore A. Gardner: There -- it was not in the holding. It was --
Thurgood Marshall: There is none?
Theodore A. Gardner: Right, there's none specifically other than --
Thurgood Marshall: Well, don't we have to hold that for you to win?
Theodore A. Gardner: You have to hold that for me to win on 1343(4). You don't have to hold that specifically for me to win on 1343(3) if you want to make that by application to embrace the and laws.
Thurgood Marshall: Well, don't you happen to do that to get on the 1393?
Theodore A. Gardner: 1393?
Thurgood Marshall: Yes. 19 -- what is it?
Potter Stewart: 1983.
Thurgood Marshall: 1983.
Theodore A. Gardner: 1983 if we satisfy the and laws okay, then we would have to satisfy would be either 43(3) or (4). We wouldn't have to satisfy both.
Thurgood Marshall: Well, 1983, we're talking about Civil Rights.
Theodore A. Gardner: 1983 was talking about the deprivation of federal rights not -- it was not --
Thurgood Marshall: If the deprivation of Civil Rights is going to say that about 80 million times?
Theodore A. Gardner: It's generically a Civil Rights Act but it embraces the deprivation of federal rights by state into position.
Thurgood Marshall: Well, don't -- we have to find that denial of welfare is a denial of rights guaranteed by 1983?
Theodore A. Gardner: You have to find that the Social Security Act is in fact included within the phrase and laws that's all you have to find. You don't have to go any further and characterize it.
Thurgood Marshall: You don't want to agree with that 1983, you don't want to agree to that? You don't have to.
Theodore A. Gardner: No, I don't agree that I think that you have to find that 1983 through its and laws conduit embraces the Social Security Act. I don't think you have to go further and get into a characterization of welfare being Civil Rights in the light.
Potter Stewart: Just before you sit down, do the Court's opinion in Rachel case or the Peacock case bare on this at all?
Theodore A. Gardner: Rational was not holding wise in the Peacock case.
Potter Stewart: They deal about the removal statute the different statute under relying rational wise.
Theodore A. Gardner: Yes, in different statute and specifically I think it's interesting that in Rachel versus Georgia, the Court refused to expand 1443 to include a broad brush because they said, Congress didn't do in 1443 would it did in 1983. which is really our argument. They said that Congress might have done it if they had so chosen but they didn't do it and accordingly when Congress was dealing with this rather restrictive removal mechanism they limited to rights guaranteed not by the Fourteenth Amendment but by the Thirteenth Amendment and you're into the question of racially quality which is really what are our adversaries are trying to do in this case. They're trying to slide the entire court into Rachel versus Georgia in a kind of obscuring manner and say, By the racially quality argument. And that's the end of it because obviously the Social Security Act doesn't provide for racial equality. Thank you.
Warren E. Burger: Mr. Skillman.
Stephen Skillman: Mr. Chief Justice and may it please the Court. I think it might be useful that the outset to note the specific allegations of the complaint which bring these jurisdictional issues before the Court today. I note them not because their important to the disposition of the jurisdictional issue are such but because they maybe useful just by way of illustration. In brief, the complaint alleges that the petitioner was mugged after cashing her monthly welfare and Social Security checks and that as a result she was unable to pay her rent or her gas and electric bill. The complaint further alleged than rather general terms that as a result of the inability to pay either of these bills that the plaintiff was within approximation of dispositions since she can't pay her rent and imminent danger of having her gas and electricity terminated. It was further alleged that despite the Solicitor grant the family emergency assistance. Upon this position having been taken by the local welfare official complaint was filed directly in federal District Court based on these allegations which claim first that the denial violated the provision of federal law same provisions recently interpreted by this Court last June in Quern v. Mandley. And secondly, that this action violated the New Jersey regulations governing an emergency assistance. The critical part of those state regulations provide that when an actual state of homelessness exist or is manifestly imminent, the county welfare board shall authorize payment of the actual cost of adequate emergency care. I'm not with certainty at least on the face of the complaint that this case fail satisfy the governing state regulations and despite the circumstance, a complaint was filed directly in federal District Court. And today, we're confronted with the rather difficult questions concerning the reach of the jurisdictional sections of the 1871 Civil Rights Act in this prospect.
Potter Stewart: The merits of this controversy in so far as the claim is a conflict between the state and federal law were decided adversely to the complaint in Quern against Mandley, weren't they?
Stephen Skillman: I would say they have been conclusively adjudicated adversely to the petitioners Your Honor yes.
Potter Stewart: In that case, yes.
Stephen Skillman: I Would say so.
Potter Stewart: They had another claim of course that this violated state law itself, didn't he?
Stephen Skillman: I -- yes, there was that pending state claim which is really receiving of --
Potter Stewart: Which of course not (Voice Overlap) in Quern at all.
Stephen Skillman: And I think that claim is also fabulous at this point knowing the face of the complaint but in light of the affidavit is they were filing a motion for some rejudgment. I think it's quite clear at this juncture that there's no substantial pending claim other. Section 1343(3) is the primary jurisdictional section that's relied upon by the petitioner as conferring jurisdiction on the federal District Court over this action. This Section has two quite separate basis of jurisdiction. First, is the deprivation of any right privilege or immunity secured by the constitution and the second is the deprivation of any right privilege or immunity secured by any act of Congress providing for equal rights of citizens. The petitioner in two disjunctive arguments relies upon both of these subprovisions of 1343(3). The constitutional Supremacy Clause argument relying upon the deprivation of any right privilege immunity secured by the constitution is an effect in argument that every time Congress enacts a new statute it creates a new right privilege or immunity secure against deprivation by state action through the Supremacy Clause. However, as the Third Circuit properly noted in its opinion when Congress enacts a statute creating rights, it is that statute and not the Supremacy Clause that confers any rights or privileges or immunities that the individual may claim. Now, the Supremacy Clause become relevant if the state through its legislative of actions seeks to take action that will work the operation of that federal legislation that is inconsistent without federal legislation. Yet, it remains the federal legislation that confers the right that maybe claimed by the particular individual. So, on its face, they secured by the constitution language just as is not applied. Furthermore, if the constitutional portion of 1343(3) were read as broadly as it's urged by the petitioner there will be absolutely no need for the statutory part of the section. District Court jurisdiction would extend to every state action case based on any federal statute and there will be no need for Congress and 3443(3) to have go in ahead and also confer jurisdiction based upon a more limited class of federal statutes providing for equal rights of citizens. In other words, the second part of 1343(3) would be surplusage, it would redundancy if the petitioner's Supremacy Clause argument were correct.
Byron R. White: But 1343(4) --
Stephen Skillman: Well, 1343(4) presents somewhat different questions that I would like if I may Your Honor to address later on. I think it's appropriate then to turn to the second part of 1343(3) and I think that this also really gets to the 1343(4) argument as well. The critical language of 1343(3) is that there must be an act of Congress providing for equal rights. Now, we think it's clear that neither the language of this provision providing for equal rights its historical origins in 1871 nor its relationship to other jurisdictional sections including 1331 supports its use in a case claiming solely a violation of the federal Social Security Act.
Potter Stewart: Well, that's not quite the claim. As I understand it, would you think 1983 falls within that definition an act of Congress providing for equal rights?
Stephen Skillman: No, Your Honor we think that 1983 provides a cause of action where you can find some other legislation that provides the substantive cause of action. But that it does not fit with --
Potter Stewart: It's in itself is not an act of Congress providing for equal rights?
Stephen Skillman: Not by itself.
Potter Stewart: And you have to make that argument, don't you You have to take that position and successfully assert it in order for you to prevail, don't you --
Stephen Skillman: Well, I think that --
Potter Stewart: In this grant of the argument?
Stephen Skillman: Well, I think that certainly critical part of our argument whether its acceptance is a precondition to --
Potter Stewart: Well, if it's a critical part --
Stephen Skillman: It's only critical of our argument.. Yes, Your Honor.
Lewis F. Powell, Jr.: Mr. Skillman, right on that point, there were some cases if I recall correctly in which jurisdiction was predicated on a constitutional claim and then pendant to the constitutional claim and attack was made on a state welfare program or one kind or another. And jurisdiction was sustained on the pendant jurisdiction there is they didn't even need 1343(3). Can you tell me what the statutory basis for the federal cause of action those cases was, was it not 1983?
Stephen Skillman: I think that what the Court has done without articulate in those cases is to imply from the Social Security Act itself. A cause of action in federal District Court for at least a declaratory judgment which was what was issued in those cases. There's no discussion of that in the cases and I think it's assumed that the pendant claim was one over which there was a cause of action that could be pursued in federal court.
Lewis F. Powell, Jr.: Do you think the Court has to disavow those cases to sustain your position?
Stephen Skillman: No, not at all.
Lewis F. Powell, Jr.: In other words, you concede there is some kind of a federal cause of action here if not under 1983 at least it's implied under the Social Security Act?
Stephen Skillman: Well, I think that there's certainly at this point pretty long line of cases which in the pendant jurisdiction context have at least issued declaratory judgments and I have recognized a cause of action for declaratory judgment whether or not damages for example would be appropriate in that same context as --
Lewis F. Powell, Jr.: Well, if your relief is being granted --
Stephen Skillman: Is a different question and I don't know that that's have been addressed.
Lewis F. Powell, Jr.: But injunctive relief has been given in some of those case I believe.
Stephen Skillman: I believe that not only declaratory relief but also injunctive relief. I believe has been granted.
Lewis F. Powell, Jr.: And but you say that the federal basis for the cause of action those cases should not properly be consider in 1983 but should be considered in implied cause of action predicated in the underlying statute even though the Court never discussed it or analyze it.
Stephen Skillman: I think that's correct Your Honor.
Byron R. White: I don't quite understand that if and laws and 1983 covers all statutes -- covers all federal statutes, do you need to say that?
Stephen Skillman: Well, no but we very strongly argue against that proposition and we think that and laws and 1983 must be read in light of its companion jurisdictional statute 1343(3) and not extend to every statute that's been enacted by Congress.
Potter Stewart: But first of all, you said that 1983 is not an act of Congress providing for equal rights of citizens and it's not an act of Congress providing for the protection of Civil Rights that it's merely an act of Congress that authorizes a cause of action --
Stephen Skillman: Based on --
Potter Stewart: Based on something else.
Stephen Skillman: Substantive rights found else where.
Potter Stewart: If 1343(3) as everybody agrees no more than a jurisdictional statute --
Stephen Skillman: That is correct.
Potter Stewart: That 1983 is no more than authorizes a cause of action.
Stephen Skillman: That's correct.
Potter Stewart: But that cause of action must be based upon something else?
Stephen Skillman: That's correct.
Potter Stewart: And that therefore, 1983 does not fall within the definition of 1343(3) or (4)?
Stephen Skillman: That's correct.
Lewis F. Powell, Jr.: Excuse me, I want to be sure I have your position. Do you say the words and laws in 1983 are the same limitation as the words in 1343(3)?
Potter Stewart: Yes, they were originally enacted at the same time.
Lewis F. Powell, Jr.: If you say then I understand you. If you say that you really don't have to say that 1983 is only an authorization because of action, you really have two alternative arguments.
Stephen Skillman: That's correct that's I said in response to Mr. Justice Stewart's question and I hope it's a critical part of our argument but not necessarily a precondition to deciding in this respect.
Potter Stewart: In you they respect of prevail?
Stephen Skillman: Yes, Your Honor.
Potter Stewart: Yes.
William H. Rehnquist: Did Rosado against Wyman articulate the basis for jurisdiction over the statutory claim?
Stephen Skillman: I don't believe so. I think that it simply that spent some amount of time on the question whether or not the pendant statutory claim could survive once the constitutional issue had been mooted by the changes in New York's practices but I don't know that ever articulated where the cause of action came from. If it did Your Honor, I missed it on reading the case and I don't believe that it has. I think that the critical way out of what's been declined, what's been described in this case as a circularity whether you start with 1343(3) and read the and laws provision of 1983 in terms of the providing for equal rights provision of 1343(3) or whether your start the other way and read and laws as in some way expanding the language of 1343(3) is to look to the historical basis of the statute as first enacted in 1871. At that time, the focus -- the intention was certainly to provide a mechanism for the enforcement of the Thirteenth and the Fourteenth Amendment. And both the Thirteenth and Fourteenth Amendment had conferred power upon Congress to enact legislation that would implement those rights created by and recognized by the Thirteenth and Fourteenth Amendment. And I think that the common assumption in 1871 was that there was to be considerable congressional activity in implementation of the Thirteenth and Fourteenth Amendments. And that through the reconstruction period did not come to pass, there was not the amount of legislation, there would've been expected in 1871 but if the question is why add the word and laws and what was meant by the term and laws in 1983? It was predicated on the assumption that the Thirteenth and Fourteenth Amendments would be implemented through significant congressional legislation and we submit that 1983 should be read in light of this historical context in which it was enacted and that as well as in light of the providing for equal rights language of 1343(3) which both we and the petitioners agree were complementary provisions in --
Byron R. White: So, wouldn't go so far as to say that 1983 reaches all claims under any federal statute that might be fairly said to enforce some constitutional provision?
Stephen Skillman: No, I think --
Byron R. White: Don't say you have to be enforcing the Civil War Amendments?
Stephen Skillman: Thirteenth and Fourteenth Amendments and I think more doubtful but probably also the Fifteenth Amendment.
Byron R. White: Well, then --
Stephen Skillman: I think --
Byron R. White: You didn't need four, did you?
Stephen Skillman: Well, there maybe on certainties about the Fifteenth Amendment may have been the reason for four. I know that four at the end --
Thurgood Marshall: Mr. Skillman, --
Stephen Skillman: Inclusive -- puts the phrase including the right to vote. So, that maybe a possible explanation for why 4 was added but on 4 is bit of a mystery. I think that when that legislation was originally drafted --
Byron R. White: Do you think that you -- to have a cause of action to have jurisdiction under 1343(4), do you agree that you must refer in the first place to 1983? Is that the statute which satisfies the authorized the law requirement?
Stephen Skillman: Well, if your question is, is there any other statute besides 1983 which also might serve that function, I don't know. I don't know of any but I can't say categorically --
Byron R. White: So, do you think in any action under 1343(4) must involve state action?
Stephen Skillman: That's -- that's a good question.
Byron R. White: Well, if you require 1983 it does, doesn't it?
Stephen Skillman: Yes. But if it were possible to imply cause of action from some other federal Civil Rights statute that was not dependent on state action then there would be some room for 1343(4) operate. I'm speaking the abstract, I cannot identify the statute. I do think though that in the legislative of history the 57th Civil Rights Act that there were initially substantive provisions that were drafted that did not make their way into the final bill. So, that I think that 1343(4) may have been intended to clearly establish jurisdiction to eliminate any possible question as to 1343(3) applying to new substantive provision that didn't find their way into the eventual legislation. It's a very shrouded kind of legislative of history. I would like to make one final point if I may. The argument is made and it's made primarily by the respondents in the Texas case argued previously that providing for equal rights language of 1343(3) should be given a very expands of reading because this is desirable as a matter of policy that somehow federal courts are better able to deal with federal questions than state courts. And the suggestion is that in practical effect, this kind of an expands of reading of 1343(3) would have the same effect as deleting the jurisdictional amount requirement of 1331 with respect to cases and which the state is the defendant. I think that there are significant differences though between proposals that have been before Congress to delete the jurisdictional amount requirement of 1331 and what would be the practical effect of accepting the petitioner's arguments as the 1343(3). First, there is the point that we've discussed previously that the 1331 leaves open the question of implying that a cause of action from some other federal statute. And in implying the cause of action from some other federal statutes such as the Social Security Act it's possible to imply a right to secure declaratory or injunctive relief and at the same time not to imply a cause of action from money damages such as would be recognized under 1343(3) and 1983. Secondly, the law under 1983 has evolved such that there is a very limited room if any for the operation of the doctrine of exhaustion of administrative remedies. This Court noted in Gibson v. Berryhill that that issue was not one that's closed that there may still be some circumstances under which exhaustion that administrative of remedies maybe required in 1983 actions. But at the present time and as dealt with the lease by many of the lower federal courts that doctrine is practically none existent in an 1983 case. What that would mean is a practical matters that if you accept the petitioner's argument -- any welfare case in which the cause of action is pleaded as having been -- is being predicated on federal law could be brought in federal District Court even if ultimately it turns out that the issues are essentially factual and that they are capable of resolution in terms solely of state law. And I take this case at least on the face of the complaint as an example. It may have turned out at some later stage that significant issues as to conflict between federal and state law Quern v. Mandley emerged. But on the face of the complaint and on the face of the Jersey regulations, this might have been a case where the $163.00 in welfare benefits which was what was an issue could've been resolved very easily within the state welfare administrative mechanism.
Thurgood Marshall: They don't reply to both class?
Stephen Skillman: Well, the possible existence of a class is something that I think only emerged at some point beyond the face of the complaint Your Honor. But it would be a possibility for at least a subportion of that class, I think it's what I'm saying. There ultimately it may have turned out that there were some and in fact we now know that there were some petitioners who would not qualify for benefits under the Jersey regulation that might have qualified for benefits under the federal statute if this Court's decision in Quern v. Mandley had come out the other way. But as to this particular petitioner and some other part of the subclass then they may have been able to receive their emergency assistance benefits quickly and without regard to the ultimate resolution of that conflict issue in Quern v. Mandley. And my point is that this overly expands of reading of 1983 and 3143(3) urged by the petitioners with its concomitant generally prevailing rule of no requirement of exhaustion of administrator remedies would preclude resort to the simpler and easier means of disposing of many such controversies. Thank you.
Lewis F. Powell, Jr.: Mr. Skillman, before you sit down. In Edelman against Jordan in page 675, the Court said, it is a course through that Rosado against Wyman 397 U.S. 397 held that suits in federal court under Section 1983 are proper to secure compliance with the provisions of the Social Security Act on the part of the participating states. Now, if that statement is correct, does that not knockout one half of your double -- you had two answers to the problem. It does not that foreclose the argument that the word and laws is no broader than the words act of Congress providing for equal rights?
Stephen Skillman: I'm not sure I picked up the full quote Your Honor.
Lewis F. Powell, Jr.: The full quote is that it is of course through that Rosado against Wyman held that suits in federal court under Section 1983 are proper to secure compliance with the provisions of the Social Security Act on the part of the participating states. Now, I assume that Social Security Acts are not equal right statutes. Therefore, if the statement is true and if 1983 provides a cause of action for a welfare claims against the state, necessarily the Court is here saying that the words and laws in 1983 are broader than the act of Congress providing for equal rights?
Stephen Skillman: I don't know the exact context and which that sentence appears but on its face, I would have to agree with that.
Lewis F. Powell, Jr.: So, that one branch of your argument would require the Court to disavow the statement in effect?
Stephen Skillman: At least that the statement and I don't know if that statement was (Voice Overlap) to the whole decision --
Lewis F. Powell, Jr.: In this decision that or unless it is a correct description of the holding in Rosado that will require.
Byron R. White: That brings him -- is it correct description the holding in Rosado? There was a constitutional claim in Rosado.
Stephen Skillman: There was a constitutional claim in Rosado and there was a --
Byron R. White: But you don't think that will makes any difference on this point I gather from what you've said that you still have to inquire about the cause of action, that's right.
Stephen Skillman: I think that you still have to find a cause of action even though the -- even on dependent claim, you still have to find a cause of action, but I think that that was found in the Social Security Act itself in Rosado.
Potter Stewart: Well, but if there's a substantial let's say equal protection claim under the Fourteenth Amendment of the Constitution then clearly under Hagans against Lavine and other cases as you can have pendant statutory claim --
Stephen Skillman: As to jurisdiction there's no question about that.
Potter Stewart: Right, no, no --
Byron R. White: That's a question is cause of action --
Stephen Skillman: As to the cause of action there might still be a question about.
William H. Rehnquist: Well, there is really a cause, there really is a question, is there not?
Byron R. White: Hagans and Lavine left that very question open but Rosado didn't apparently know it.
Stephen Skillman: Well, it didn't address (Voice Overlap) but it silently grant the relief.
Lewis F. Powell, Jr.: Yes.
Stephen Skillman: Correct exactly.
Lewis F. Powell, Jr.: I have to find cause of action some place --
Stephen Skillman: And I would suggest to that it found the cause of action for at least for declaratory injunctive relief in the Social Security Act itself and it certainly become common in the last decade result to imply causes of action from constitutional and statutory provisions Hagans and GI case versus Borack and I can go and I am sure with the considerably law that was not.
William H. Rehnquist: Hagans came several years after Rosado?
Stephen Skillman: Yes, Your Honor.
Byron R. White: How about Hagans and Edelman?
William H. Rehnquist: Same years.
Stephen Skillman: I think Hagans is later but I won't want to say that with total assurance -- their close in time. Thank you.
Warren E. Burger: Mr. Young, you have just one minute left if you wish to use that.
David H. Young: The jump was from Rosado to Hagans and Hagans noted the question. This case squarely presents the question what do you do when you did not have as you had in Hagans the Fourteenth Amendment claim under equal protection. It was quite simple to resolve Hagans of what was pleaded there but I think that this case presents the issue for square and I would suggest that the resolution which we seek is appropriate because 1983 speaks about Constitution and laws. Hagans basically said, We have the constitution so we don't have to worry about the and laws problem. But I suggest that today you do have to worry about it because you don't have that Fourteenth Amendment equal protection and I submit that the plain wording of the statute and its legislative history indicate a congressional concern for the vindication of federal rights under federal statutes and accordingly on the first prang the and laws embraces all federal statutes and on the second prang 1983 is itself an act providing for the protection of equal rights under 1343(3) and an act providing for the protection of Civil Rights --
Lewis F. Powell, Jr.: But if theoretically answered his argument that it's an act which provides a remedy rather than creating any new rights and therefore it's a statute which secure his rights within the meaning of the jurisdictional claim.
David H. Young: I think that the analysis by Mr. Justice Brennan in gas and I think the analysis from Mr. Justice Ferguson in Price and the analysis by Mr. Justice Stone in Hague versus CIO where they're interpreting very similar language in the criminal conspiracy statutes that is secured by the Constitution and they say we find though circular for the position that the word secured by mean created by rather secured by can embrace both created by, warranted by, finding its manifest in, embrace etcetera and I submit that under that type of analysis it unduly restricts the statute to resist and to limit it only to create.
William J. Brennan, Jr.: So, you'd say to put a little different I suppose that a statute creating a new remedy is an example of a statutes securing a right?
David H. Young: Exactly and that's precisely what Congress was attempting to do pursuant to Section 5 of the Fourteenth Amendment giving to multuity of the historical age.
Potter Stewart: And do you have to be right on this don't you in order even to support your alternative Supremacy Clause argument?
David H. Young: Yes, I do because of the authorized by law section of 1343(3) as counsel in the previous case stated and I associate myself with his position. We would be unable to directly connect --
Potter Stewart: Right.
David H. Young: The Supremacy Clause to why there's 1343(3). I have nothing further. Thank you.
Warren E. Burger: Thank you gentlemen. The case is submitted.