Warren E. Burger: Mr. Naughton, you may proceed whenever you’re ready.
John J. Naughton: Mr. Chief Justice and may it please the Court. This case is the second dealing by this Court with the legal aid or legal service plan of the Brotherhood of Railroad Trainmen. The petitioner here comes under the different name of the United Transportation Union, but the reason for that is solely because of the Trainmen has been merged into that successor union. At all times that the injunctions were issued in this case, the Brotherhood of Railroad Trainmen was the defendant on the appeal to the Michigan Supreme Court, the merger into the surviving union were quashed. The questions presented in this case are whether the injunction issued deprives the union members of rights arguably guaranteed by this Court in Brotherhood of Railroad Trainmen, or whether those injunctive probations are contrary to the this Court’s subsequent opinion in Mine Workers versus Illinois State Bar Association. Alternatively, the petitioner contends that the proceedings after remand on the first appeal by Michigan Supreme Court were such as to deprive the union of its constitutional right the procedure of due process. This case begun with the filing of a complaint in 1959, and basically that complaint paraphrases some of the language and the holdings of the Illinois Supreme Court in the opinion of Brotherhood of Railroad Trainmen. In fact, one of the defenses of the Brotherhood to the complaint was at the case was moot because of the fact that it had complied with the decision of the Illinois Supreme Court. In that defense, the Brotherhood alleged that the State Bar of Michigan had presented evidence before the Illinois Supreme Court. That allegation was not denied in the reply and indeed during the trial in 1961, the counsel for the State Bar at appendix 39 and 40 stated that its evidence and its charges were presented to the Illinois Supreme Court, and that the Illinois Supreme Court held that there should be no further proceeding on those charges. Nevertheless, before the Illinois Supreme Court opinion by its terms became effective, which was to be on July 1, 1959, the State Bar filed this complaint. Basically, the State Bar claimed that the Brotherhood had a plan of recommending and urging that its members seek legal advice, and not only seek legal advice but retraining of the union counsel. The union admitted such in its answer. The State Bar alleged that a majority of such Federal Employers’ Liability Act cases went to the union counsel. The union denied that allegation, but did admit that in some cases but not in all and they went to such counsel. The possibility of a consent decree proving fruitless, the case went to trial. And at trial, the counsel for the State Bars said the only issue in the case was whether or not large numbers of cases went to the legal counsel of the union. So, he proceeded to prove through only one witness, a man by the name of Walsh who was employed by the Association of American Railroads Claims Research Bureau, and who in such employment received reports from other railroads as to how many cases, the appellee cases, were handled by various attorneys where the residents were Michigan residents. The witness also testified in appendix 102 that since 1953, the Association of American Railroads had been the chief investigating agency for the State Bar and had been in the Michigan state seeking evidence. After the hearing, briefs were filed and the 1962 Virginia decree was handed down by the chancellor of the -- of its Chancery Court of the City of Richmond. After the briefs, there was a 1962 injunction decree issued in this case. An appeal was taken by the Brotherhood to the Michigan Supreme Court. While the appeal was pending, this Court handed down its opinion in 1964 Brotherhood. The Michigan Supreme Court after being informed of the opinion of this Court, reversed and remanded, and specifically stated that permission for the amendment of the plaintiff’s bill to seek, if it be so advised, relief not inconsistent with this Court’s opinion in 1964 Brotherhood. The next action of the trial court was a motion for a judgment in accordance with a 1965 injunction decree of the city court of Richmond and that motion was not acted upon. In 1966, the Virginia Supreme Court entered its opinion on the appeal from the 1965 decree and reversed the part of that opinion which attempted to draw a line between solicitation, and between recommendation and urging. The State Bar of Virginia, petition for a certiorari to this Court and the Brotherhood of Railroad Trainmen opposed the petition. The petition was denied. In 1967, this Court handed down it mine worker’s decision. And following that decision, the trial court in this case handed down the 1968 decree which is now before this Court. In handing down that decree, the trial judge in this case stated that the Virginia Supreme Court’s reading of this Court’s opinion in Brotherhood was sufficient to warrant the promulgating of the decree in this case. As to the Mine Worker’s decision which was brought to its attention, it said that it’s irrelevant that the Mine Worker’s decision dealt only with the financial connection. There was then a appeal to the Supreme Court of Michigan, and that is that judgment immediately below. By 4 to 3 decision, the Michigan Supreme Court affirmed the judgment. It did not look at the injunctive provisions. Instead, it proceeded upon a analysis of this Court’s 1964 Brotherhood opinion as it was stated by the Virginia Supreme Court. Accepting that analysis, it stated that it would defend its understanding of the tenants of equal justice under law if the Brotherhood were to receive more relief in Michigan then it had already obtained in Virginia. Indeed, it said that absence a specific order from Washington it would not enter such an order or a judgment. The dissent agreed with the contention of petitioner here. It stated that the decree could not be entered because of this Court’s decision in 1964 Brotherhood, and said even if that were not so, it would say that the Mine Workers’ case was sufficient to bar the entry of the decree. And finally under Michigan law, it stated that the proofs was stale, the pleadings was stale and that there was no clear and convincing proof of any violations, and therefore under Michigan law, it should not have entered. We then turn to the first question of this case, whether or not that this decree is contrary to this Court’s opinion in 1964 Brotherhood. In that opinion as in many other opinions dealing with free speech, this Court has consistently stated a rule of law which was ignored in this case. The burden this Court has stated and very clearly and very directly so far as I’m concern is upon the State Bar to prove substantive evils. In this case, there was no proof of any substantive evil, indeed, there was no updating of the complaint or any other updating of the proof. The proof in this case relates at the very latest to the year of 1960. When the petitioner here requested that there be an amending of the complaint, so that there could be a sharpening of the issues, that request was ignored despite the language in the first Michigan Supreme Court opinion which stated that permission was granted for leave to amend. In the second Supreme Court opinion where the -- that court stated in the majority opinion that the right to amend was an alternative and that the State Bar did not have to avail itself of the accorded right to amend, indeed, it didn’t avail itself of the accorded right to amend. It’s the counsel at one point stated that he did not choose to amend. Until the Michigan Supreme Court was at spoke, it was unknown to this petitioner that there was any alternative whatsoever. Assuming that there was such an alternative, it would seem that this would be a denial of due process. Turning again to the Brotherhood case, that case held at pages 6 and 7 of the United States report that this case did not involve ambulance chasing, it did not involve unauthorized practice, it did not involve the commercialization of the legal profession. The contention of the respondent and of the court below seems to be directly contradictory to that language of this Court.
Warren E. Burger: Is there anything in this record that would indicate the members would not be free to go out and engage their own counsel of their own selection?
John J. Naughton: No, there is not Your Honor. In the 1964 Brotherhood opinion, we asserted that there were and in fact, the Virginia case in one of its findings held that all of the cases or substantially all of them were channeled through legal counsel. In this case, the allegation was the majority, but the proof failed to prove any majority and the finding was that a large number. And in fact, the finding does not really show a large number. At page 168 of the appendix, there is a summary sheet which is plaintiff's exhibit 17 which shows a summary of the evidence presented through the Association of American Railroads. And as Your Honor will note the bottom line deals with the year 1960, the latest year and shows a total number of FELA cases. 34 of those, in the second column, only 6 were handled by the legal counsel, 20 by Michigan attorneys and 8 by other attorneys. The only substantial amount of cases shown is in the first line which is July 1, 1953 to March 31, 1955. There, is a 197 cases of which a 126 supposedly went to the firm, to the legal counsel firm, but when the data on which that summary is based is examined, it's seen that this numbers of cases does not deal with 53, but instead deals with the great number of years. As a matter of fact, the plaintiff’s exhibit 4 I believe it is; plaintiffs’ exhibit 3 shows great numbers of cases which were undated. And then, shows for the legal counsel 45 settlements, 46 settlements, 47 settlements, and 48, 49, 50, 51, 52, and then goes into the 53 settlements. Now reason for that was that in 1953, the Association of American Railroads formed this claims research bureau which went out to obtain evidence against various counsel. And as a starter, they had these cards signed in from the various railroads so the first cards that came in dealt with many another years outside of the years within the exhibit of 53 through 55. It’s also I believe note worthy that primarily those earlier years are shown are the legal counsel cases. Any cases by other counsel are not shown by year. And so, it creates a problem is to whether this is selected evidence or not, but be that as it may and we always have had in this Virginia case and in the Michigan case, questions as to the substantial evidence backing any of the injunctive provisions. The fact remains that the State Bar's own exhibits show immediately preceding the issuance of the first injunction, a very minor number of cases handled by the legal counsel’s firm. I don’t’ think that I need to belabor the proposition that there has been shifting of the burden here by the Michigan Supreme Court and by the court below. If I have not adequately set it out in my brief, I am quite sure that the brief for the amicus, the FLCIO clearly and succinctly shows what is required here. I think that I would like to particularly note page 7 of the that brief where the amicus states that the restrictions on group legal practice plans must be justified by proof, tending to show that the practice which is enjoined is quote “an oppressive, malicious or aberratious use of the legal process for purely private gain,” quoting this Court’s opinion in NAACP versus Button, and then the commercialization language from the Trainmen opinion. I think that being the standard that there is a complete failure of proof in this case whether it’s judged as of 1960, or as of 1968 when this injunction was issued. That seems also to me that the Mine Workers decision adds a further reason why this case should be reversed. In Mine Workers as this Court were recall the union counsel was on a salary and all of the cases went to him without any further compensation. Indeed, the evidence showed that the fact that he filled out an injury form was sufficient to cause the legal counsel to begin processing the workmen’s compensation claim in that case. That case also was completely an unauthorized practice of law case, and that seems to be the principle defense of the State Bar as to the injunction here is that we are engaged in the unauthorized practice of law, although, there was no such allegation in the only complaint file below. That Mine Workers case, I think is also particularly relevant on the first injunctive provision about which we complaint. The injunctive provisions are set out at appendix 176 and 177, also set out various points in the brief. The first provision enjoined the union from giving or furnishing legal advice. Now, it just seems to me that for reason which we state in our brief at pages 23 and thereafter that this is not part of the Brotherhood’s plan. The Brotherhood’s plan is exactly opposite. It’s not the unauthorized practice of law. The union is not practicing law. The union is sending the cases to the union lawyer and saying that the lawyer practices law. This is the practice of law. It’s a new definition of the unauthorized practice of law. Typically, that arises when the corporation itself acts through lawyers and the lawyers are merely agents. In this case, there is no doubt that a retainer contract is entered the too between the injured employee and the lawyer, and then that, that becomes a simple handling of a case by a lawyer-client relationship. There’s been no proof either in Virginia or here that anything else occurs. The second provision it seems to me also is such that it would strike as it could be interpreted, and that’s an ambiguous Section against the operation of this plan. That prohibits informing any lawyer or lawyers that an accident has been suffered by a member in furnishing the name and address for the purpose of obtaining legal employment for any lawyer. And this I think, is part and parcel of the Brotherhood’s plan at it reads. As Virginia interpreted, it seems to be a method of subverting this Court’s language in Trainmen. In Trainmen, this Court's stated that of course, counsel had the same right to accept the cases that the union had in channeling the cases. Virginia recognized that language, but stated that it did not interpreted as such that would permit the lawyer to do more than accept and rather intend it to bring injunction actions or disbarment action against any lawyer who did anymore than accept, again, it seems to me that it should be stricken down. The third provision deals with the defraying of expenses; that is from stating that they will suggest or defray. I don’t know that this is part of the Brotherhood plan. There’s no evidence in the record as to it in any event and finally under Illinois law which is the state which the legal counsel in this case practices, that’s permitted after a retainer is obtained. The fourth provision from controlling directly or indirectly to fees charged, it seems to me they have stricken down by the Mine Workers case because you can place a lawyer on a salary and not be guilty of any violations. Constitutionally, it would seem to me that you have the right to do less than that, and that is to do what the union used to do in this case to limit the counsel’s fee to 25%. The fifth injunctive provision is a rather peculiar one. It prohibits accepting or receiving compensation of any kind directly or indirectly for the solicitation of legal employment for any lawyer. Now, the Virginia Supreme Court said that there could be no decree which prohibit solicitation. But yet, it let this provision stand which does not prohibits solicitation, but prohibits solicitation plus the receiving of compensation as I read it, it would seem to me that there is no evidence in the record as to this and it would seemed to me to be a most peculiar ambiguous Section that should be stricken down. The remainders of these provisions are such that they deal with financial connections of the some sort. I would like to particularly note that the last one from sharing in any recovery for personal injury or death by gift assignment or otherwise is brand new one. It was not in the 1962 Virginia decree. It was added in 1965 by the chancellor for some reason because in that case, there was no additional evidence taken either. Now, turning to the question of the evidence in this case, we have to generally deal with the Michigan statute which I suppose is that basis on which this injunction is issued. It’s the -- the only thing in the complaint under which they justify the issuance of the 1961 injunction, on page 32, we set out the interpretation of that statute by the Supreme Court of Michigan in Hightower versus Detroit Edison Company, which the court said that the purpose of the act was to discourage the practice commonly known as ambulance chasing. And then stated that there were four separate indications of it, full meaning litigation, subornation of perjury, molting of innocent persons by judgment upon manufactured causes of action or defrauding of injured persons, having proper causes of action, but ignoring their legal rights by means of contracts which retain exorbitant percentages of recovery. Now in this case, the percentage of recovery in the Illinois case was the 25% than prevalent in the Brotherhood counsel. And that was stricken down by the Illinois court because it was undercutting of fees rather than charging of exorbitant fees. So, it seemed to me under the Michigan Supreme Court's reading of that statute, there is absolutely no evidence whatsoever that there was any violation of the statute. But even assuming that the Michigan statute can be read to cover the facts in this case which strongly submit in this Court’s opinion in NAACP versus Button with dealing with a similar statute would require it striking down.
Speaker: Is there a limitation in Michigan on the amount of contingency statutory reputation or the court rule?
John J. Naughton: Not that I know off, Your Honor.
Speaker: Not such that we have in New York?
John J. Naughton: No. Not such as you have in New York. The remainder of my argument, I would like to devote to the problem which it seems is raised in this case by the reaction of the courts after remand. That problem is the problem of whether the union after remand received procedural due process. After remand, if the Brotherhood wished an updating of the complaint, an updating of the proof. Indeed, it wished an opportunity to present some evidence because as the record shows, in the 1961 hearing, after the close of the State Bar’s evidence, the Brotherhood rested without presenting any evidence upon the ground that there was no prima facie showing of any reason for an injunction. So, we are now faced with this injunction which was taken from Virginia and as to that injunction, we submit that there is no evidence. There is no contemporaneous pleading. There are no allegations of the provisions in the injunction. And surprisingly when they copied the Virginia injunction, they did not copy the findings of facts, so if you have an injunction without any findings of fact. The findings of facts that now remain in Virginia are the finding of facts that were made in the 1962, the decree. The court there took the position of this Court’s judgment did not affect the findings of fact. So therefore, you have the problem there that the findings of fact are directly contradictory of many of this Court’s holdings. The findings of fact in the 1961 Michigan decree do not apply to these particular injunctive provisions. On this procedural due process point, we would submit that the Ruffalo case by this Court requiring a fair notice of reach of the procedure and also the precise nature of the charges is directly irrelevant. We would also submit that the Wilmer case by this Court requiring a hearing so that there could be a rebuttal of any charges is directly irrelevant, and we would submit that the general injunctive law is status stated in our brief is directly relevant here and as accordance with the conditional standards which this Court has promulgated in the Brotherhood and in Mine Workers. Thank you Your Honor.
Warren E. Burger: Thank you. Mr. Ruegsegger?
A. D. Ruegsegger: Mr. Chief Justice and may it please the members of this Court. We have in this case I believe the interesting issue as to the constitutionality of a -- of the decree below which decree is exactly duplicative of the final decree in the Virginia Brotherhood case, the decree of the state court of Virginia. The Virginia Supreme Court decision in 207 Virginia, entirely was concerned with the interpretation and the consideration of what it considered were the findings and opinion of this Court in this Court’s Brotherhood decision. Now, from the decision of the Virginia Supreme Court, the Virginia State Bar made an application to this Court for certiorari as my brother indicated which was supposed by the Brotherhood and that petition was denied. The interesting thing I believe and the procedural steps in the two cases, I think need a little consideration in order to keep them straight and I have found it helpful to me to put in chronological order, side-by-side the occurrences in the Michigan case, in this case here and in the Virginia case.
Hugo L. Black: What’s the name of the Virginia case?
A. D. Ruegsegger: The name of the Virginia case is exactly the same as the Brotherhood, namely, State Bar of Virginia versus the Brotherhood. I assume Justice Black that when you say the name of the Virginia case you’re talking about the title before the Virginia Supreme Court?
Hugo L. Black: I’m talking about the one you were talking about?
A. D. Ruegsegger: Well --
Hugo L. Black: You said this was a kind of a duplicate of it?
A. D. Ruegsegger: Yes.
Hugo L. Black: I just want its name in --
A. D. Ruegsegger: Alright. The name is Brotherhood of Railroad Trainmen versus Commonwealth of Virginia.
Hugo L. Black: Page what?
A. D. Ruegsegger: It is 207 Virginia, page 182, also, 149 S.E.2d 265. Now, --
Speaker: Have you the citation to our denial --
A. D. Ruegsegger: Your Brotherhood case?
Speaker: -- our denial of certiorari on that Virginia?
A. D. Ruegsegger: Yes.
Speaker: What is that? I don’t find it in the briefs.
William O. Douglas: It was 1967 I think?
A. D. Ruegsegger: That was on March 6, 1968.
William O. Douglas: ’68?
A. D. Ruegsegger: No, I just -- pardon me. Virginia State Bar’s petition to this Court for certiorari denied on January 16, 1967, 385 U.S. 1027, 17 Law Edition 2nd 675.
Speaker: Thank you.
A. D. Ruegsegger: I would be happy. I have made some copies of this chronology of the Michigan case and the Virginia case, and I would be happy to give these to Your Honors or send them in later with the copies to counsel. I found it very helpful in my consideration of this case to have the steps that occurred from time to time. Now --
Warren E. Burger: You may lodge it with the clerk --
A. D. Ruegsegger: Pardon?
Warren E. Burger: You may lodge with the clerk and I see you have given one --
A. D. Ruegsegger: Yes. Thank you Your Honor. Now, in both the petitioner’s application for certiorari in this case, and again in its brief in this case, complaint is registered that the decision of the Virginia Supreme Court did not comport with the holding of this Court in this Court’s Brotherhood case, and that because of what occurred in the State of Virginia after the Brotherhood case, the Virginia case went back to Virginia. It has been deprived of a review of the Virginia Supreme Court’s decision. And the reason for that, petitioner says, after the Virginia Supreme Court rendered its decision in 207 Virginia, in which -- which was a decision that considered in the light of this Court’s holding in opinion in Brotherhood. It considered each one of the injunctive provisions of the second or 1965 injunction of the Richmond Chancery Court, and the entire verbatim injunction of the Richmond Chancery Court of 1965 is set forth in the -- in footnote 4 in the opinion of the Virginia Supreme Court, and certain provisions of those injunctive paragraphs are put in italacies for emphasis and the sum and substance of the Virginia Supreme Court’s decision was to strike from the 1965 injunction which is quoted in footnote 4 as being repugnant to this Court’s holding in Brotherhood.
William J. Brennan, Jr.: May I ask, was that chancery division injunction entered on our remand of the case in the Brotherhood?
A. D. Ruegsegger: Yes.
William J. Brennan, Jr.: In the proceedings in the chancery court then, when on our remand under Justice Black’s opinion in 377?
A. D. Ruegsegger: Actually yes. What actually happened was on your remand, it went back to the Virginia Supreme Court. They did nothing with it, but remanded it down to the Virginia -- I mean, the Richmond Chancery Court.
William J. Brennan, Jr.: Right. Now, what was the record, that that was a new record made in the chancery court or was that action then on the initial record that we had considered when we have 377 here?
A. D. Ruegsegger: I’m not sure that I can answer that. On the initial record, was it Mr. Naughton? I’ll accept the statement, but in any event, the Richmond Chancery Court then entered the 1965 decree which then was appealed too.
William J. Brennan, Jr.: And it -- obviously the chancery court thought the decree it entered was consistent with our opinion on the remand?
A. D. Ruegsegger: Yes. And interesting enough, the Richmond Chancery Court decree, the court’s decree felt that there was nothing in this Court’s opinion that prevented a restraint against solicitation. And so in that chancery court’s decree, they tried to draw to find distinction between recommendation and solicitation. And that was one of the subjects that the Virginia Supreme Court been spent considerable time in determining whether or not that distinction, set forth in the decree of the chancery court, was consistent with this Court’s holding. And the Virginia Supreme Court then came to the conclusion that that entire provision should be stricken, saying that whatever you call it, recommendation or solicitation, we think that that goes beyond the constitutional limitations that's set forth in this Court’s decision in the Brotherhood. Justice Carrico of the Virginia Supreme Court dissented and felt that this Court did not mean that in its -- in your Brotherhood’s decision, and he hopefully will find that someday, that matter would be decided and I think, this is the case that it will be -- that the -- the other interesting thing about this case to me is --
William J. Brennan, Jr.: Well that -- is that before us?
A. D. Ruegsegger: Pardon?
William J. Brennan, Jr.: Is that before us?
A. D. Ruegsegger: Well, that was I was about to come to.
William J. Brennan, Jr.: May I ask it this way? Whether provision which was stricken by the Virginia Supreme Court; that does not appear in this Michigan --
A. D. Ruegsegger: No, it does not.
William J. Brennan, Jr.: Well then, how can that provision be before us for consideration?
A. D. Ruegsegger: Perhaps only inferentially in a determination as to whether or not the injunctive provisions that are in the lower court’s injunction here, being exactly duplicative of the final injunction in Virginia, whether or not that there’s the constitutional abandonment of propriety and I think to that extent --
William J. Brennan, Jr.: What I mean, I gather no effort was made in Michigan to have the trial injunction -- court’s injunction there include that provision which --
A. D. Ruegsegger: You are --
Byron R. White: -- the Virginia Supreme Court had deleted.
A. D. Ruegsegger: You are absolutely right, Your Honor. The point that I was endeavoring to cover and indicate was and is that counsel for the petitioner here has steadfastly claimed that the Virginia Supreme Court’s interpretation of your Brotherhood decision was improper, and that they have been deprived of a review of that decision. Because of the fact that after the Virginia Supreme Court sent the case back down to the chancery court and the chancery court then rendered its 1965 decision and then after the Virginia Supreme Court rendered its decision in 207 Virginia, it then remanded that case back down to the chancery court of Richmond and said “Here it is, take whatever proceedings you consider appropriate.” And so, the chancery court then entered a new third injunctive decree exactly in the terms that the Virginia Supreme Court should -- said should be entered. The Brotherhood then made an application for leave to appeal to the Virginia Supreme Court from that injunction which was denied. The Virginia Supreme Court saying, “No, we won’t entertain this because what you are in effect doing is attempting to appeal to us from our previous decision.” And so, the point is made by the petitioner that it has been deprived really of a review of its position that the decision of the Virginia Supreme Court is consistent with and in conformity with your decision in Brotherhood. Now, because of what occurred in Michigan, when this Court accepted certiorari in the Brotherhood case and our case was then on its way to and had landed in the Michigan Supreme Court, and because the issues in the Brotherhood case where very similar to at that time very similar to the Michigan case, the Michigan Supreme Court in a short opinion remanded it to the Jackson circuit court awaiting the -- to await the decision of this Court. And then because of the many things that occurred in Virginia after the decision of this Court in Brotherhood, it took about four years for these things to occur in Virginia until a final injunction in Virginia was finally on the books and records. Then, that took about four years and that’s the reason why this case was delayed. The length of time that it was and why the evidence, up to the year 1960 is stale according to what the petitioner contends in this case and a decision was made after the case came back to the Jackson Circuit Court and after the final Virginia decree had become final, a decision was made by the general counsel of the State Bar of Michigan working with Mr. Kelly who had handled this case in collaboration with the general counsel or State Bar not to introduce any additional evidence, but to ask the circuit judge based upon the record before -- made before it at the original hearing to enter a decree exactly duplicative of the final decree in Virginia.
Speaker: So, there is a ten-year gap in the --
A. D. Ruegsegger: There is practically a ten-year -- you are absolutely right Mr. Justice Harlan.
Speaker: Does the record indicate anything that it might have been supplied -- suggested this could have been supplied to fill that gap --
A. D. Ruegsegger: I don’t think the record indicates that, no. Now, this case presents the opportunity for this Court to do three things which I have indicated in my brief and that is to resolve the petitioner’s contention that the Supreme Court decision -- the Virginia Supreme Court’s decision did not comply with the holding of this Court in Brotherhood, and it also presents this Court with the opportunity to give to the petitioner the review that it claims it has been deprived off because of procedural problems. And thirdly, to clarify and said it rests the concern on the part of some justices, specifically Justice Carrico of the Virginia Supreme Court and a large segment of the Bar --
William J. Brennan, Jr.: May I ask just one more?
A. D. Ruegsegger: Yes.
William J. Brennan, Jr.: Do you know whether when leave was denied by the Virginia Supreme Court to appeal to that court from the final judgment entered by the Richmond Chancery Court, from that denial of the Virginia Supreme Court did the union attempt to certiorari here?
A. D. Ruegsegger: It did not and the reasons for that, I do not know. I can only surmised, Mr. Naughton can undoubtedly tell you what I imagine it was because earlier when the Virginia State Bar made an application for writ of certiorari here, the union opposed that.
William J. Brennan, Jr.: And the union did not cross petitioned at that time so far as --
A. D. Ruegsegger: So far as I -- you know -- lastly and in these three areas that I’ve already indicated and in this last area, we agree absolutely with the petitioner’s position that this Court should speak out in a very definitive terms as to the lengths that a state may go in regulating the practice of law in these areas, particularly in light of new Rule 2-103 d5 of the new professional code -- the new code of professional responsibility, because that provision gives the specific or sets forth the specific exception, consistent with constitutional interpretations and referring -- it is specifically referred to there, the issues and the questions existing here by reason of this Court’s holding in Button and Brotherhood and Mine Workers.
William J. Brennan, Jr.: Incidentally has that code been adapted in Michigan?
A. D. Ruegsegger: I’m not sure just exactly how much I put in my brief on that, but I should advise the Court that --
William J. Brennan, Jr.: Well, you say, it’s not yet acted?
A. D. Ruegsegger: It is not yet acted upon. We presented to the Michigan’s -- in Michigan, it has to be adopted by the Supreme Court. We had a special committee of the State Bar review the code and they presented to the Board of Commissioners their recommendations that it be adopted with two or three limitations, not in this area. And we had a meeting with the full court in the early part of October and requested that the court adapt the code as we had recommended with two slight exceptions not material here.
Speaker: Is it reasonable for you in oral argument that (Inaudible) would summarize the portions of the decree whereas the difference in opinion?
A. D. Ruegsegger: I’m not sure that it is because if I understand the positioner -- the petitioner’s petition that every one of the provisions, generally, they make the claim now that they’re vague and they claim that in -- to comply with the provisions of the decree would chill a very constitutional rights under the First Amendment. And I think that counsel would forthrightly say that he feels as they have set forth in their brief that every one of these provisions, because of the language of them, restrict the full operations of the Brotherhood’s plan, and that is the very thing that we are concerned about because we feel that the full operations of the plan just naturally result in solicitation of the FELA cases. And we feel that it is absolutely contrary to what the great large segments of the Bar have always considered as improper, and we feel that each one of these provisions that are exactly the same and have been in effect in Virginia since 1966 when the final decree was finally laid on the books there has been no chilling or restraint upon the rights of the members of the Brotherhood. And that therefore, this Court should affirm the decision of the court -- of the court below.
William J. Brennan, Jr.: I gather that the Michigan Supreme Court has not yet given you an answer after your session with --
A. D. Ruegsegger: That is correct. I guess I didn’t conclude my answer. I meant to say that undoubtedly, the reason for that is this, if I may say so. We had a change of two members on the Michigan Supreme Court as of January 1, including a change in the Chief Justice. And our new Chief Justice had voiced his feelings somewhat strongly during our meeting with them in October as having some concern about some provisions of the code not material here, but I gather that because of that, there has been a delay in making a decision on the code. Thank you, Your Honors.
Warren E. Burger: Thank you Mr. Ruegsegger. Mr. Naughton, you have five minutes remaining.
John J. Naughton: May it please the Court.
William J. Brennan, Jr.: Would you mind Mr. Naughton, you did not cross petition when the Virginia State Bar brought its petition here, did you?
John J. Naughton: That’s correct, Your Honor.
William J. Brennan, Jr.: And you did not seek the cert here when leave was denied to appeal from the final decree finally entered in the Richmond Chancery Court?
John J. Naughton: That's correct also, Your Honor. My reasons for that were that I thought both of them were really not right for decision by this Court at first because I didn’t believe it was a final judgment, although I was told there it was. And then the second time, it was a technical since the court below claimed that it was not appealable under Virginia law. In any event, the Virginia Supreme Court interpretation of this Court’s opinion, it seems to me to be it’s interpretation and I would not presume to suggest to this Court that it’s at all definitive reminding on it. The courts below seemed to think that it was that that court’s opinion and your opinion is the last word, I don’t believe so. I would like to mention that in regard to the rehearing in Virginia when we came back down, there was a new chancellor, and the chancellor who heard the first Virginia case in 1962 and issued that decree had retired and the 1965 decree and the 1967 decree were entered by a chancellor who did not hear the evidence. The question as to the new code of professional responsibility, I think is pertinent here. I don’t feel I’ll go quite as far as my position was represented by the State Bar, that new cannon says that it’s a lawyer’s duty to see that legal business is widely disseminated and the actual language is that a lawyer should assist the legal profession fulfilling its duty to make legal counsel available. However, it does have a caveat in it that legal services claims while you can tell the people that they have lawsuits, you must not take the case unless you’re constitutionally protected. It has been criticized and saying that the Bar Associations are willing to recognize their perspective client’s constitutional rights, but no other rights. I think that for that reason, this Court should be clear in delineating what the constitutional rights of the brother here and of other legal service group says in this case. The question as to no chilling in Virginia, I don’t -- there’s no evidence in the record, of course, as to whether there’s any chilling in Virginia or not, the Virginia case in 1962 was not based on any evidence as to Virginia. I don’t know if Your Honors will recall it, but I do very well that the evidence was from other states in the union. There was nothing said about anything in Virginia. At that time, there was no legal counsel in Virginia. The legal counsel involved was situated in Baltimore. Since that time, there has been a legal counsel appointed in Virginia. The question is to whether the assertion of legal rights is chilled in Virginia’s -- or I would suggest that in any event, a very peculiar one and only may be a Virginia lawyer would know just exactly whether there was any chilling or not. My experience is that in Virginia showed that the recognition of the legal rights of individuals was certainly much less than Illinois, and at many times, I was amazed to hear the constructions of ethical cannons that were promulgated in the Virginia case. All in all, I feel that this case through many hearings and arguments has gone on for a great number of years. And for that reason, I would respectfully submit to this Court that the proper action here should be a reversal without any remandment and an ending of this case.
Speaker: Without any what?
John J. Naughton: Without remandment. Thank you.
Warren E. Burger: Thank you Mr. Naughton. Thank you gentlemen. The case is submitted.


William H. Rehnquist: We'll hear argument next in No. 03-674, Keyse Jama v. the INS. Mr. Keyes.
Jeffrey J. Keyes: Mr. Chief Justice, and may it please the Court: The Eighth Circuit's decision that petitioner, a citizen and a national of Somalia, can be deported to Somalia should be reversed. The applicable removal statute requires acceptance from the country of which the alien is a subject, national, or citizen. That statute is 8 U.S.C. 1231 (b)(2)(D) as in David, which we have referred to as step two. The Eighth Circuit acknowledged that acceptance is required for such a removal. The parties agree that Somalia has no functioning government that can give acceptance in this case, as that term is used in the statute.
William H. Rehnquist: Mr. Keyes, we're not talking about removability here, are we, I mean, in the sense that a dispute over whether he could be removed? It's just a question of where he can be removed to.
Jeffrey J. Keyes: That is correct, Your Honor. The circuit court ruled, however, that petitioner could be deported to Somalia because the statute provides that if the alien is not removed to his country of citizenship, then he can be removed to a list of additional countries in the next step of the statute, 1231(b)(2)(E), including the country of birth. The circuit court erred in that ruling for the following reasons.
Ruth Bader Ginsburg: May I ask you preliminarily, Mr. Keyes? The Government takes the position that this statute, whatever it means, was intended to... with the... with the nation abroad in view, that the idea was not to insult our... our neighbors in the world community, so to recognize that they have the prerogative to say yes or no to somebody being sent there, being removed there, but that the statute was not intended to confer any benefit on the removable alien.
Jeffrey J. Keyes: Your Honor, the... the statute, as structured, sets forth... Congress has set forth order with respect to the deportation process, has set forth, for example, the order in which countries should be chosen, the identity of those countries that should be chosen. The... the statute is... does get at order in the deportation process, and if an alien is being removed to... in a situation where there is no government to receive the alien, where the alien is simply being expelled from the United States, the risk arises that the alien will bounce back to the United States, will simply be in international traffic with no country to receive the alien, and there's nothing in the statute which would indicate that the interest of Congress in ordering the removal process is limited simply... limited simply to a concern about the sovereignty of nations of the other country.
William H. Rehnquist: But you need more than that, don't you? Are you saying there's no interest... indication that Congress was concerned with other than the subject that it was talking about? But... but you need something affirmative to say that a statute confirms a right on a private individual.
Jeffrey J. Keyes: Mr. Chief Justice, the... the... we are not contending that the... the statute invests a right on the individual. What we are contending is that the statute was... as expressed in the statute has this acceptance requirement that would apply to the removal process.
Sandra Day O'Connor: Well, but it is possible to read the statute, particularly part (E), the first series of subsections of it, as the Eighth Circuit did. That is a possible reading of the statute and to find there is not, indeed, an acceptance requirement under many of those little subsections.
Jeffrey J. Keyes: Your Honor, I would... I would suggest that--
Sandra Day O'Connor: Or I should say clauses perhaps.
Jeffrey J. Keyes: --Yes, yes. I would... I would suggest that to... to give it that reading, one has to limit the view to the first six clauses.
Sandra Day O'Connor: Yes.
Jeffrey J. Keyes: However, the... I would suggest that that would... that would take subparagraph (E) out of... out of its context, and there are several very important... there's important--
Sandra Day O'Connor: Well, I... I'm not sure that's right. When I read the statute as a whole and went through all the possibilities there and got to (E), it read as though, at the end of the day, Congress did want to provide some place of removal for people in the absence of acceptance.
Jeffrey J. Keyes: --Your Honor, I would... I would suggest that that... that is... that's not the case for the following reasons, that first of all, the way (E) begins, it says, if an alien is not removed to a country under the previous subparagraphs.
Sandra Day O'Connor: Right.
Jeffrey J. Keyes: The first priority is... before that is country of subject, nationality, or citizenship where there is an acceptance requirement. In moving to (E)--
Sandra Day O'Connor: Well, obviously Congress prefers to have a country act with acceptance. That... that's understandable, but what (E) appeared, to me at least, to be was if all those things had been exhausted, we're going to still allow removal under little subclause (i), (ii), (iii), (iv), and (vi).
Jeffrey J. Keyes: --Your Honor, the... the... what (E) does is that it doesn't change the removal process. It just adds for the... for the executive branch, it adds additional countries, other countries, that they can remove to.
Antonin Scalia: Well, but it doesn't begin that way. It doesn't begin if an alien cannot be removed to a country under the previous subparagraphs. It says, if an alien is not removed to a country under the previous subparagraphs. And whether he is or not is subject to the discretion of the Attorney General. None of those sentences or paragraphs requires removal to those countries.
Jeffrey J. Keyes: Your Honor--
Antonin Scalia: So when it says if he is not, then the... the Attorney General has these additional options. I mean, you... you'd have a stronger argument if it... if it read cannot be removed, but it doesn't.
Jeffrey J. Keyes: --Your Honor, the... the... when it says, if an alien is not removed to a country under the previous subparagraphs, that... that is moving to give the Attorney General additional countries to remove to. It doesn't change the process. Look, for example... I think we get further guidance on that point by looking at clause (vii) which is obviously a part of... of this subparagraph (E), which ends with the words, another country whose government will accept the alien into that country. Another country whose government will accept the alien into that country. What that... what that does is that it gives us... it references back to the first six clauses and reflects the fact that the acceptance requirement is always present.
Antonin Scalia: Of course, well, I mean, that clause could... could be read either way. Another country whose government will accept the alien is one way to read it, and another way to read it is another country whose government will accept the alien.
Jeffrey J. Keyes: It is... it is--
Antonin Scalia: And that's... that's the... that's the ambiguity there.
Jeffrey J. Keyes: --It... it does depend upon the emphasis that you give, but I would suggest that if we are going to... if we are going to read (E) to mean that what the Congress intended was that you're going to have an acceptance requirement for removal under (D), step two, the subject, nation, or citizenship country, but then we're going to move to (E) and we're going to give you a list of other countries that are presumably less... or have a less closer connection to the alien than in (D). And with respect to those countries, those ones that are just in clauses (i) through (vi), we're not going to have any acceptance requirement. But then we're going to put it back in in clause (vii) if... when you have to go then to some other country to get acceptance. I would suggest that that is not a... a sensible reading of the--
Stephen G. Breyer: Do you know why? Did you come across anything that explained why there was a change in language in that clause (vii) between the 1952 version and the present one? The '52 one said, to any country which is willing to accept such alien into its territory, and then (vii) said, another country whose government will accept the alien.
Jeffrey J. Keyes: --I... I... we didn't--
Stephen G. Breyer: Do we know... is there anything? Is that an accident, a drafting... just simply drafting style or something or--
Jeffrey J. Keyes: --It... it... we didn't find anything that explained why. I would... I would suggest that it reinforces my point and that is--
Stephen G. Breyer: --Yes, it does. It helps you quite a lot that it says government, but it doesn't... at the same time it doesn't... it... it doesn't help you in respect to whether (vii) applies to the first six. It does help you in respect to if you win that point, that's it because there's no government.
Jeffrey J. Keyes: --That's... that... that is correct, Your Honor.
Stephen G. Breyer: Otherwise, you could argue--
Jeffrey J. Keyes: That is correct. The... the... we... we did in the... there is in one of the amicus briefs that those... that gives the legislative history, there is a reference to the major report of the Judiciary Committee in connection with the '96 legislation, which says that this whole section of the... of the INA is being... is restating the... the previous law. So... so that's what... that's what we have.
David H. Souter: One... one argument in... at least in my view, that would certainly help you in your reading of (E) is the interpretation that you put on (D). And... and you and Justice Scalia, I... I think, have two very different interpretations of what (D) requires. You're saying that... that (D) does, in fact, require a... a... the... the country... if... if the Attorney General designates the... the country of citizenship, that there is a requirement in (D) that the... that the country accept. Whereas, his earlier question that... that spoke of... of... and the issue under (E) is whether an alien is or is not removed as opposed to can or cannot be removed. His earlier question indicates the... the possible reading that there is no acceptance requirement in (D). And as I understand the Government's argument, it is... it is this, that (D) requires the Attorney General to turn to the country of... of citizenship, but if the country of citizenship does not accept or does not respond, it is not the... the consequence is not that the Attorney General cannot deport to that country, but simply that he is no longer required to, that it is an act of discretion. What is... what is your answer to that argument, that there is no absolute acceptance requirement, merely an acceptance requirement to maintain the Attorney General's obligation to return him to that country?
Jeffrey J. Keyes: Two reasons, Your Honor. First of all, it's the language of (D). It says, remove to subject, national, or citizenship country unless the government of the country does not affirmatively inform about acceptance or... or--
David H. Souter: Well, it says the Attorney General shall remove unless. And their argument is if... if you don't get the condition satisfied, i.e., acceptance, there's no longer a mandate, i.e., shall. It simply leaves it open, a matter of discretion.
Jeffrey J. Keyes: --And... and I would... I would suggest that the... the consequence of the unless language should be that unless this happens, don't do it. But... but... so that would be my... my suggested reading of the language. But the second reason, going to the structure of the statute, which I think reinforces that and... and is important, is that if it had been... if it had been Congress' intent that if the Government couldn't remove to the country of citizenship because it couldn't get acceptance, that it could then move to step (E) and remove anyway to overcome that acceptance, Congress would not have gone about writing the statute the way that it did. The way that it wrote the statute is that it provided in (E) for other countries that the... that the Attorney... Attorney General could remove to, and every one of those countries can be a different country than the country of citizenship by their definition. It would... it would have been a very strange way for the... the Congress to have given the Attorney General the discretion to remove anyway, to make it contingent upon one of those countries in clauses (i) through (vi) to happen to be the same country as the country of subject, nationality, or citizenship.
Antonin Scalia: What I think is very strange is the... is... is for you to read back up to all the other clauses, (i) through (vi), the phrase, whose government will accept the alien. I mean, if... if acceptance is a condition for all of those preceding things, my goodness, that's certainly not the way to make it clear, to tag it onto (vi) instead of putting it in the introduction or in a clause that comes after (i) through (vii) and goes out to the margin after that. You... you want us to read back to (i) through (vi) whose government will accept the alien.
Jeffrey J. Keyes: The... the... I think that the... the best way to approach the statute... and I think it... it can... it can shed light on... on your question... is that if we start with the premise that what removal is is the transfer of the alien from the Government of the United States to the government of the country of removal. And that is what removal is. So if we start with that premise, then it makes absolute sense here that there wouldn't be at each place where the... the statute identifies a... a country, where the statute would have to say... make a specific reference to the acceptance requirement. My point about reading the statute that way, in terms of its general condition, is that it explains how throughout the statute you would have the... the reference to acceptance in the context in which it appears, but you wouldn't have to repeat it every place where you... where you referenced a country of removal.
Antonin Scalia: So... so, as you read... as you read this statute, the United States can never send somebody back to a country that doesn't want them. Is that it?
Jeffrey J. Keyes: It would... in... in this removal process, it does require acceptance from the country of removal. Now... now, they--
Antonin Scalia: Why... why would... why would Congress ever want to impose that categorical requirement?
Jeffrey J. Keyes: --The... the reason why it... it would fit in with the... with the statute is that Congress has in this statute has expressed an interest in the orderly process of deportation. If... if it... let's take two examples, Your Honor. If the... if the country of removal refuses, does not want to have... will... will not take the alien back... there is a government and they refuse... then the... the reason why it makes sense to have this acceptance requirement is that in all deportations, it will make it less likely that the deportee is going to be bounced around in international traffic and come back to the United States.
William H. Rehnquist: Can the... can the alien challenge a decision by the Attorney General that, yes, a certain country has accepted him?
Jeffrey J. Keyes: The... I... I... if there is a... if there was a wholly unreasonable claim by the Government that there was acceptance, they... not--
William H. Rehnquist: So... so the alien can litigate that issue.
Jeffrey J. Keyes: --I think that the alien can if the... if the Government were to take a position... let's say in... in... in a... in... in this case the Government agrees, admits that there is no acceptance. But let's say that the Government took the position to say that we can... we can call anything acceptance and we can... we can ship you out of the United States with a wholly unreasonable definition of acceptance. Then the alien should in that circumstance be able to have access to the courts to be able to challenge that... that decision.
John Paul Stevens: It seems rather strange to me. If you take him to the airport, he either gets off the plane or he doesn't. I don't see why you litigate that. You know whether they'll accept him or not when you... when you deliver him.
Jeffrey J. Keyes: Well, you... you should know that because that is the... the acceptance is the willing receipt of the... of the alien by the country of removal.
Stephen G. Breyer: --What happened in China? I mean, what... this all comes from the '52 act, and it was a big issue then that we didn't recognize communist China and they would take people to the border. How... how did that work? Were there... were there instances under the '52 act where they just would take somebody to Macau or something and push him across the border, or what... what happened? How did it work?
Jeffrey J. Keyes: The... the instances we know about come from the... from the Tom Man case, which was decided by the Second Circuit in 1958. And in that case, what the Government wanted to do was to take the alien to the border of the... of communist China and to see whether or not they could get him across the border. And in the... and... and in construing this... this very provision in the language that it was in in 1952, Judge Learned Hand for the... for the court said that... that acceptance was required under step three for each of the subparts and that that would violate the statute. We know of other instances, Your Honor, to answer the question, in terms of procedures where in... in the 1950's, '60's, that the... what the Government would do would be to take the... remove the alien to Hong Kong and then there were situations where the Hong Kong authorities may or may not send that alien on to... on to China. But there was... there has always been... every opinion from the... from the time this statute went into effect in 1952, up until the Eighth Circuit's decision in Jama, has said that what this statute means at each of its steps is that acceptance is required.
Stephen G. Breyer: Now, are there instances where we have deported people to places that they said, no, we won't take him, and we have anyway?
Jeffrey J. Keyes: We don't... we don't know of any, and the... and the Government has... has not cited--
Stephen G. Breyer: Okay. Then another--
Antonin Scalia: And you say there can't be any under this law.
Jeffrey J. Keyes: --We say there can't be.
Antonin Scalia: So that if some state opens its prisons and puts its criminals on a boat and sends them to the United States, as has happened in the past, your interpretation of this statute is that Congress has forbidden the President from shipping these criminals back where they came from, so long as the country that expelled them doesn't want these criminals back. Is that--
Jeffrey J. Keyes: No, Your Honor.
Antonin Scalia: --What... what are you saying?
Jeffrey J. Keyes: The reason for that is that this statute deals with the removal of aliens who have been through removal proceedings. In that situation, presumably what would happen is that those... those aliens would be excluded. They would be subject to... probably to expedited removal under a different statute. We're dealing here with aliens who have been admitted into the United States.
Anthony M. Kennedy: Is the statute so limited?
Jeffrey J. Keyes: It... it... yes, it does. The... the statute does. It starts in... in (2), 1231(b)(2)(B), other aliens, and (1) is arriving aliens who are in removal proceedings.
Ruth Bader Ginsburg: The United States has turned boats back. The most notorious case was in World War... before World War II--
Jeffrey J. Keyes: Yes.
Ruth Bader Ginsburg: --before we entered World War II.
Jeffrey J. Keyes: It... it has. And... and given the fact that this statute was originally passed in 1952, in 1952 there was a... we know from the legislative history, there was enormous concern about the fact that the... the communist countries would not receive back their citizens. So the concern was that we had communist agents or aliens in the United States and we couldn't deport them. What Congress did in this statute was that... in 1952 is that it... it didn't change the acceptance requirement, but what it did do was it expanded the list of countries to which the Government could deport. Those are the countries we now have--
Stephen G. Breyer: --But what's bothering me partly in this case is it's being argued on the ground that this is like a country that says we don't want him. In fact, this is a country that hasn't said we don't want him. It's a country that hasn't said anything. It's not a country perhaps. And... and that's what... really the issue is whether or not a place without a government is a place where you can send him at all.
Jeffrey J. Keyes: --Yes.
Stephen G. Breyer: And... and maybe this is all evidentiary when they changed the word... add the word government, that the word country throughout is simply assuming a place that has an organized government. Is there... is that so? Is there anything you want to say about that?
Jeffrey J. Keyes: There is. Yes, it... it does mean... that is a separate reason why the... under... under (E) the petitioner cannot be removed to Somalia because there is... it's not a country as that should be properly defined in the statute. And... and let me give you, I think, a good history on that. The Board of Immigration Appeals itself in... in 1985 in the Linnas case, specifically addressing in (E) the term country, said that to be a country under this statute, there had to be two things: a territory and there had to be a functioning government that exercised sovereignty over its people.
Stephen G. Breyer: All right. Now, the word country probably appears in the immigration statute in the context of deportation since the first statute that provided it. So have you done any work on that? I... I hate to sort of have to look that up for the first time, but the... the... is there any work that you can report in respect to that word country? There never under that... the easiest thing for you would be if... if this word country... there never has been under a statute that used the word country a deportation to a place that had no organized government.
Jeffrey J. Keyes: Well, I--
Stephen G. Breyer: If you could affirm that that's so, then that would be very strong for you. But maybe that isn't so.
Jeffrey J. Keyes: --I... I don't... I don't know if... if that is so. I can point to and we have pointed to in... in the briefs to a whole series of cases. I... I mentioned the BIA decision, but there's a whole series of cases in the... in the 1950's, 1960's which said that country had to have a functioning government. I'll... I'll give you one... one good example and that is the Ying case where... where the court, circuit court, said that it was dealing with whether Hong Kong could be a... a country. And it said Hong Kong can be because it has the following characteristics. It has a legislative body. It has... it has all the characteristics of a political organization.
Ruth Bader Ginsburg: I thought the Government said you... you didn't raise this question below, that you didn't argue that Somalia wasn't a country.
Jeffrey J. Keyes: Your Honor, it... it... this is... this is not a new claim or a new issue. It is an argument on the issue that is presented, which is whether petitioner can be removed to the country of birth under (E) when there is no functioning government that can either object or accept him. And since there is no country, he can't be.
William H. Rehnquist: Well, but that doesn't seem to be the question you actually presented in your petition for certiorari.
Jeffrey J. Keyes: Well, Your Honor, I would... I would quote the... the Government's phrasing of the question in... in--
William H. Rehnquist: Well, but you're... you're bound by the question that you presented, and it is whether the Attorney General can remove an alien to one of the countries designated in the statute without obtaining that country's acceptance of the alien prior to removal. Now that doesn't say anything about the absence of a government.
Jeffrey J. Keyes: --Your Honor, it... it doesn't specifically say--
William H. Rehnquist: It doesn't say specifically or generally.
Jeffrey J. Keyes: --It... it... what I would say is that the... that if you go... if there is no government in that country, then there can be no acceptance. So we must refer back to that. I would also cite the fact, Your Honor, that this issue was specifically addressed by the... by both parties in the district court. It... and the... in the dissenting opinion in the Eighth Circuit, the... the dissent specifically raised this as... as a matter in terms of--
William H. Rehnquist: Was it addressed by the majority opinion?
Jeffrey J. Keyes: --It was not addressed by the majority opinion, no, Your Honor. I would... I would... if there are no further questions at this time, I'd like to save the rest of my time for rebuttal.
William H. Rehnquist: Very well, Mr. Keyes. Mr. Stewart, we'll hear from you.
Malcolm L. Stewart: Mr. Chief Justice, and may it please the Court: The plain language of 8 U.S.C. 1231(b)(2)(E)(iv) authorizes removal of an alien to his country of birth, and it is undisputed that petitioner was born in Somalia. By its terms the statutory authorization is not conditioned on acceptance by the receiving country's government.
Antonin Scalia: Why... why did you narrow the question presented in your brief if you're willing to take that... that much more categorical position and much more important position for the Government? When... the... the question presented, as you describe it in your brief, is whether immigration officials may remove petitioner to his country of birth when that country lacks a functioning central government that is able either to accept or object to petitioner's... that's a much narrower question--
Malcolm L. Stewart: I mean--
Antonin Scalia: --than... than the one presented by petitioner.
Malcolm L. Stewart: --We... we narrowed it in that way because we feel that that's the only question that is squarely before this Court. That is, the Court--
Antonin Scalia: That's all you want us to decide?
Malcolm L. Stewart: --Well, we've also indicated that the... the logical thrust of most of our arguments is to the effect that an individual could be removed to an otherwise permissible country, notwithstanding the lack of acceptance of a functioning central government.
Antonin Scalia: Well, I... I don't think it's the logical thrust necessarily, and if we... if we did it the way your question presented suggests, we're deciding this case only for people who are going to be deported to Somalia or... what other areas of the world have no functioning government?
Malcolm L. Stewart: Somalia is the only one, and--
Antonin Scalia: That's... I wouldn't have voted to take the case.
Stephen G. Breyer: So it's much narrower.
Malcolm L. Stewart: --Well, obviously we... we opposed the certiorari petition. So we're not contending that the practical importance of the question is such that it would necessarily justify the Court's expenditure of its resources. There was a square circuit conflict--
Sandra Day O'Connor: Yes, but it... it's very odd when the petitioner's question was broader and turned on whether there was acceptance or not.
Malcolm L. Stewart: --Well, I think our... the reason... one of the reasons we framed the question as we did is that petitioner's last argument in the brief was, as we read it, to the effect that whatever the text of the statute might say, there has been an established understanding over the decades that removal is not permitted in the absence of acceptance by the receiving country's government. And part of the point we wanted to make is we don't think an understanding of that sort could trump the test... the text. But even if the Court decided that the established understanding was so pervasive that an extratextual limitation on removal authority should be read in, the understanding could be thought to exist only in cases where there was a functioning central government that resisted the alien's return.
Stephen G. Breyer: As I... as I understand it, following up a bit on Justice Scalia, the question presented is whether he can remove an alien to one of the countries designated without obtaining that country's acceptance. Okay?
Malcolm L. Stewart: Without--
Stephen G. Breyer: Now, one possible... prior... of the alien prior to removal. That's... I'm just reading it--
Malcolm L. Stewart: --Although--
Stephen G. Breyer: --from their cert petition.
Malcolm L. Stewart: --I do... I think you left out one word that is... is crucial, that is, his position necessarily turns on the proposition that we have to get acceptance not simply from the country, but from the government of that country.
Stephen G. Breyer: But what the cert petition says, without obtaining that country's acceptance of the alien. Now, I grant you it's sort of a hidden argument there, but it's mentioned or whatever. Is... one reason the answer to that question is no is because where that country does not have a functioning government, it is not a country within the meaning of country as used in this statute.
Malcolm L. Stewart: I mean, we would submit--
Stephen G. Breyer: Now, that's... that's an answer no to the question presented for a very narrow reason that does not get us involved in anything other than Somalia. Is there... I mean, maybe we shouldn't reach it because it wasn't argued all that much, but it seemed to me just another argument being advanced in favor of their position.
Malcolm L. Stewart: --Well, first, we would... we would submit that the question presented presupposes that Somalia is a country. But leaving that question aside, I think there are a lot of good reasons that even if the Court felt this issue was properly before it, it should hold that Somalia is a country. If you go to the Department of State web site, Somalia is listed as an independent state. It continues to be a member state in the United Nations, notwithstanding the absence of a functioning central government. If Somalia were not regarded as a country or a state, by reason of the absence of a government, then presumably all people who were formerly Somali nationals would now be rendered stateless, and that's a result that international law generally--
Stephen G. Breyer: So you're not saying you can dump people in Antarctica or possibly send them to the moon.
Malcolm L. Stewart: --We're saying that... we're saying, first, that Antarctica and Somalia are countries. It's exceedingly--
Stephen G. Breyer: Antarctica is a country? So we could take all these people, send them to Antarctica. They'll live with the penguins? Is--
Malcolm L. Stewart: --It's extremely unlikely that... that the... the text of a statute could ever be satisfied because the permitted removal countries are countries such as the country in which--
Antonin Scalia: If they were born there--
Malcolm L. Stewart: --Exactly.
Antonin Scalia: --raised by penguins, send them-- [Laughter]
Malcolm L. Stewart: So in any event, we... we think that Somalia is a country. It continues to be regarded as such, notwithstanding the current lack of existence of a functioning central government. There is a portion of Somaliland... of Somalia known as Somaliland that has set up its own government and characterizes itself as a separate country, but the United States Government has not recognized that claim, nor has any other country. So Somalia for these purposes remains intact. I'd like to focus again on the text of the relevant statutory provisions.
Ruth Bader Ginsburg: Before you do so, could you tell me what was the outcome in that Southern District of Texas case which relied on this decision, the Eighth Circuit's decision here, to send someone to Ethiopia without consent?
Malcolm L. Stewart: I don't know what ultimately happened to the alien. As the case is described in the amicus brief, the alien was flown to Ethiopia. He was refused at the border, and then he was flown back. And I think that would be consistent with our representation that we have not historically attempted to repatriate aliens over the objection of a functioning central government. That is--
Ruth Bader Ginsburg: Is... is there anything to it other than the practical objection that when you get the person there, the country won't accept him, so we sent him... be left with you--
Malcolm L. Stewart: --I think it--
Ruth Bader Ginsburg: --unless we dump him in the sea.
Malcolm L. Stewart: --it's a measure of inconvenience if he's flown there and back, but we would say that even if the Court held that the statute requires acceptance by the receiving country's government, it would not be necessary for us to obtain a prior assurance of acceptance. Rather, it would still be a permissible option for us to fly the alien to the border, and if the people there, having been told who he is, let in him, we would say that falls--
William H. Rehnquist: You don't fly him to the border. You fly him to an airport which usually isn't on the border.
Malcolm L. Stewart: --I'm... I'm sorry. Fly him to the port of entry at which he would be presented to the... the immigration or customs officials in the relevant foreign country, and if they acceded to his entry, having been apprised of who he was, we would say that constitutes acceptance by the receiving country's government.
Stephen G. Breyer: --But that... they can win on that one because it doesn't say anything about prior in (vii).
Malcolm L. Stewart: Right. I mean, here... here the barrier... in a sense, the barrier is not so much acceptance. That is, as a practical matter, in order to accomplish removal of an alien to Somalia, we're going to put him on a plane. He is going to be flown at an airport in Somalia, and there will be people at the airport with guns presumably who exercise de facto control over who gets in and who is not allowed to deplane. And if those people are not willing to let Mr. Jama into the country, he'll be flown back and we won't be able to accomplish repatriation.
Antonin Scalia: Whether they are... whether they are a government or not.
Malcolm L. Stewart: The... the barrier... the potential barrier is not that there won't be acceptance, that there... but that there won't be acceptance--
Antonin Scalia: People with guns. Right.
Malcolm L. Stewart: --there won't be acceptance by people that we would regard as the government of Somalia. And... and I think there is a significant point here in terms of the foreign relations of the United States. That is, if the reconciliation process goes as we hope and conditions in Somalia become more stable, the... the people who purport to exercise governmental authority gain control over the... the territory and the consent of the population, at a certain point the State Department will have to make a decision, have things progressed far enough that we can characterize this as the government of Somalia. And that determination shouldn't be skewed by a judicial ruling that until the State Department makes that determination, repatriation of aliens to that country will be prohibited. If I could turn to the... the text of the statute, the provision on which we rely, of course, is... is subsection (E)(iv) and that's at page 4 of the Government's brief, and it's headed additional removal countries. It says, if an alien is not removed to a country under the previous subparagraphs of this paragraph, the Attorney General... now the Secretary of Homeland Security... shall remove the alien to any of the following countries. And Roman (iv) is the country in which the alien was born. By its terms, that gives unqualified approval to removal to the country of birth. Neither the introductory language nor subsection... or clause (iv) itself conditions that authorization on acceptance by the receiving country's government. And it's also--
David H. Souter: Mr. Stewart, may I interrupt you? Oh, I'm... may I interrupt you and ask... ask this question? You're right. Textually there's... there's nothing in (iv) that... that has the condition of... of prior approval. The argument... one argument is made is that because of the substantial overlap of... of the subsections in (E) with the country of... of nationality or citizenship in (D), that if you do not recognize a... a requirement of acceptance for the (E) categories, basically you're going to do an end run around (D). The Government's answer to that argument, as I understand it, as... as I tried to... to put it in a question to your... your friend, is that there is no absolute requirement of acceptance in (D). There is simply a... a... the Attorney General's mandate to send the person to a... a country of citizenship is... is subject to that. But if the country will not accept, the Attorney General still has discretion to send him to that country. There is one answer to that that your brother did not get into, and I... I want to raise it. As I understand it, the House report for the... what was it... the '96 act, the current statute anyway. The House report indicated that there was no intent to change the substance of the provisions dealt with from what they had been under the prior statute. And under the prior statute, which is set out on... on page 1a of the petitioner's brief, it seems to me that it is very clear that there was an absolute requirement of acceptance for the Attorney General to act under the predecessor language to what is now subsection (D). If you look down to within the... the three lines from the... from the bottom of... of page 1a, which refers to that, there... there seems to be a clear condition: if such country is willing to accept him into its territory. Now, if I'm reading the old law right and the House report does reflect or should be taken by us in interpretation to reflect the intent of Congress, then don't we have to say that the Attorney General's authority, not merely mandate, but authority, under (D) requires acceptance? And therefore, if we take your view, we would, in effect, allow an end run around a condition indeed because the Attorney General could simply say, okay, I'm going to go to little (iv) under (E). I'm going to find the country of the birth. I don't have to get acceptance. It happens to be the same country as citizenship. But... but in he goes, or at least up to the border he goes. What's your answer to that argument?
Malcolm L. Stewart: --Well, let me... let me turn the Court first to page 3 of the Government's brief that has the text of current subsection (D), and I think that maybe that will help me to explain it best because the way we would formulate our interpretation of subsection (D) is very slightly different from the way that... that you characterized it earlier. Subsection (D) says: if an alien is not removed to a country designated under subparagraph (A)(i), the Attorney General shall remove the alien to a country of which the alien is a subject, national, or citizen unless the government of the country fails to give its consent. And our interpretation of the purpose of subsection (D) is it expresses a strong preference for removal to the country of nationality, assuming that no designation has been made. But Congress recognized that to make that an absolute requirement, even in circumstances where there was no acceptance, would embroil the executive branch into foreign policy confrontations because essentially even when the executive branch officials believed it would be an unwarranted affront to foreign states to try to remove in the face of foreign resistance, the statute, without the exception, would be telling the Attorney General you have to do that. And so Congress, understandably, enacted an... an exception to that requirement, and it says if there is no acceptance, the Attorney General doesn't have to remove. Now, we would... we would--
David H. Souter: So if... if there is acceptance, he does have to remove. If there is no acceptance, he has discretion.
Malcolm L. Stewart: --We... we would say he has discretion, but he... but he has--
John Paul Stevens: That doesn't make... can I interrupt here? I want to ask the question I started before. That doesn't make any sense. If you read this as a mandatory requirement, the Attorney General shall do it, and if you assume an existing government... now, you narrowed the question. So I'm not talking about the question. If there's an existing government, he cannot command the other government to accept the alien. The general practice among nations was they would not... the other nation has an obligation to accept people back. But if they won't do it, we can't force them to take the person back.
Malcolm L. Stewart: --I... I agree that that is generally the international practice. Now, I would... I would not categorically promise--
John Paul Stevens: How... how could... say you send a person back to Great Britain and they say we're not going to take him. How are you... what... what can... what could the Attorney General possibly do?
Malcolm L. Stewart: --I think as a practical matter in that context, it would be impossible. But to take another hypothetical situation--
John Paul Stevens: So the word shall cannot mean shall because he... he cannot in every case do it.
Malcolm L. Stewart: --Well, it says he shall do it unless--
John Paul Stevens: Unless there's acceptance.
Malcolm L. Stewart: --Right. Unless there's acceptance.
David H. Souter: I guess you could say that he shall do everything he possibly can, but his mandate to do that evaporates if there's no acceptance.
Malcolm L. Stewart: That's correct.
Antonin Scalia: Wait a minute. We're... we're--
Stephen G. Breyer: Put the two questions--
Antonin Scalia: --We're going too far. It doesn't just say if they refuse to accept. If they don't respond within 30 days. So it may well be that you... that you can proceed to (E) with respect to a... a country that simply has not responded.
Malcolm L. Stewart: That... that's--
Antonin Scalia: It has an inefficient ministry of state, and... and the guy arrives. They say, oh, we're... we're delighted to have this fellow back. Our response got lost in the mail or something. There's no... no reason you can't proceed to (E) just because of the existence of (D).
Malcolm L. Stewart: --That... that's correct.
Stephen G. Breyer: --But now, putting those three questions together, it seemed to me what you're saying it is possible to read the statute the way you're saying. It is also possible to read the statute the opposite. And the brief that I found very helpful on this was this Ali Ali brief where everything is set out really quite parallel. You get every version of the statute right in front of you. And as I read that, it... you look at the '52 version... and I think it's clearer on this point, and it's against you insofar as it's clearer. But then, in addition, you have four circuit courts of appeals, including a decision by Learned Hand, all of whom say that Justice Souter's suggestion there is what the statute means, and there's nothing to the contrary. And then after that, Congress reenacts those same statutes with all the little bits and I think some unclarifying changes in language, but they write in the report, we don't mean any substantive change by this.
Antonin Scalia: I think the House wrote that in the report. Right? Was that in the Senate report?
Malcolm L. Stewart: I don't remember.
Antonin Scalia: Did the President know about--
David H. Souter: It... it was the House report.
Stephen G. Breyer: Some people actually read those reports and feel they are a clue to what Congress is trying to get at. And here, if that is a clue, the clue says that there is to be no substantive change from a provision that was unanimously interpreted by four circuits, including Learned Hand, to be with the other side on this.
Malcolm L. Stewart: Well, first--
Stephen G. Breyer: So I'm interested--
Malcolm L. Stewart: --Well, first, there were only two court of appeals decisions that we've been pointed to in which the attempt remove an alien was actually thwarted on the basis that there had been a no acceptance by the receiving country's government. Second, Learned Hand was unquestionably a distinguished judge, but if he had been infallible, then presumably he would have been on this Court. [Laughter] And I think... I think--
Stephen G. Breyer: --That is an amazing non sequitur.
Antonin Scalia: --Good point. Good point. [Laughter]
David H. Souter: If you believe that, Mr. Stewart--
Malcolm L. Stewart: --And I think... and I think... but--
Antonin Scalia: You... you mean if he had been on this Court, he would have been infallible. [Laughter]
Malcolm L. Stewart: --Exactly, exactly, exactly, exactly. The... the point is for this Court to treat as any lower court opinion as an authoritative statement of what the law means or meant would be an inversion of our judicial--
David H. Souter: --Okay. Let's... let's erase Learned Hand--
John Paul Stevens: Let me just... let me get an answer to my question. In your... under your reading of the statute, the mandatory... it imposes a mandatory duty on the Attorney General which he may not be able to perform because he may not be able to repatriate the alien unless the other country will accept him.
Malcolm L. Stewart: --No. Our... our point is that the statute would have raised that concern if the exception were not there. That is, if the statute said in terms if there is no removal to the country designated, the Attorney General shall remove the alien to his country of citizenship or nationality and didn't include an exception, then the Attorney General would be placed in a situation, at least potentially, where he was forced... he felt himself forced by law to attempt repatriation even though he knew that the government of that country didn't accept the alien's return. And it was to prevent that sort of foreign policy confrontation that the exception was written in. The exception was, by its terms, an exception to a mandate. It was not intended to be--
John Paul Stevens: Well, then it's an exception to subparagraph (iv).
Malcolm L. Stewart: --It's an exception to subparagraph (iv)... to subparagraph--
John Paul Stevens: So you are reading the language in subparagraph (vii) as a... an exception to subparagraph (iv).
Malcolm L. Stewart: --No. I'm reading the language of subsection (D). I'm... I'm not at (E). I'm at subsection (D).
John Paul Stevens: I'm at (E).
Malcolm L. Stewart: Okay.
John Paul Stevens: And I'm saying if you read (E) your way, subsection (iv) is a mandatory command to the Attorney General that he may not be able to carry out unless he can comply with subsection (vii).
Malcolm L. Stewart: We're not saying that subsection (E)(iv) is a mandate that the Attorney General or the Secretary must remove to--
John Paul Stevens: It says shall remove.
Malcolm L. Stewart: --It says shall remove to one of the following countries, but it clearly is not intended to be a mandate because the introductory--
John Paul Stevens: He can choose one of them.
Malcolm L. Stewart: --the introductory... he doesn't have to choose one because the introductory language of Roman (vii) says, if impracticable, inadvisable, or impossible to remove the alien, dot, dot, dot.
John Paul Stevens: Right.
Malcolm L. Stewart: So it specifically contemplates the possibility that situations may arise in which it will not be practicable, possible, or advisable to remove the alien to any of the foregoing countries. And certainly one--
John Paul Stevens: And wouldn't it always be impossible if... if the... if the other country will not accept the alien?
Malcolm L. Stewart: --I think... I mean, to... to give a slight variance on the hypothetical that Justice Scalia posed, if a future--
John Paul Stevens: I'd rather have an answer to my question.
Malcolm L. Stewart: --I think it would not always be impossible. If, for instance, a future president of Mexico embarked on an aggressive program of encouraging aliens... encouraging Mexican nationals to leave that country illegally, and then the Mexican government refused to take them back, I think it would at least be possible. It would be an option the President would want to consider to repatriate those people over the objection of the Mexican government. And if the President were attempting to negotiate a satisfactory resolution to that very hypothetical crisis, we wouldn't want him to be hamstrung by a statutory barrier to his doing that. So it makes perfect sense to say, on the one hand, if there is no acceptance by the receiving country's government, the Secretary will never be required to remove to that country because that would enmesh the executive branch in an international confrontation against its will. It's not at all inconsistent to say, nevertheless, if the Secretary believes that repatriation without acceptance can be done, consistent with the foreign relations objectives of the... the United States Government, it's a statutory option. As a practical matter--
David H. Souter: --May... may I go back to, let's say, the... the nub, the narrow nub of... of my earlier question, and that is this. The predecessor language to what is now subsection (D), as I read it, clearly required the approval of the country if there was to be a removal to the country, a repatriation to the country. The House report says we don't intend to make any change in the substantive law. If we accept the House report, then we've... we're going to say that the proper reading of (D) is not your reading, but the reading that says the Attorney General cannot act under (D) unless there is, in fact, an... an acceptance by the country. And if that is true, then your reading of Roman (iv) in (E) allows you to make an end run around that condition, and that would be a good reason for interpreting all of (E) to require agreement and acceptance by the country. What is your response to that narrow argument?
Malcolm L. Stewart: --I guess we'd have two responses. The first is we would not agree with the view that the predecessor language would forbid removal to the country of nationality absent acceptance because what the statute said was that if the government of the relevant foreign country doesn't accept or doesn't advise the Attorney General of what its stance is, then about five or six lines down on page 2a, it says, then such deportation shall be directed by the Attorney General within his discretion and without necessarily giving any priority or preference because of their order as herein set forth either... and then there's the same series of countries, and one of those is the country in which the alien was born.
David H. Souter: So you're saying that the predecessor language can be read the same way, you say, (D) can be read now.
Malcolm L. Stewart: That's correct.
David H. Souter: Okay.
Malcolm L. Stewart: I guess the other point we would make is--
Ruth Bader Ginsburg: Then you... you think Judge Reavley, who was sitting on the Ninth Circuit at the time and dissented in the Ali Ali case, that he was dead wrong when he said the prior statute did condition willing acceptance for all countries to which aliens could be deported.
Malcolm L. Stewart: --Yes. We would... we would disagree with that statement.
Ruth Bader Ginsburg: He thinks... his dissent turns on a difference between the current statute and the prior statute.
Malcolm L. Stewart: Yes. We would disagree that that was the appropriate result under the prior statute. The... the other thing we would say about this point is that if we are otherwise correct about subsection (E)(iv), that is, if as a general matter, subsection (E)(iv) says an alien may be removed to the country of his birth whether or not there was acceptance, then it would make no sense to say but you can't do it if that is also his country of current nationality or citizenship because removal to the country of... the current... the country of current nationality or citizenship is a preferred country of removal. That's so not only the... under the statutory scheme, but it's also the country that under international law has an obligation--
Antonin Scalia: I haven't followed you. Would you say... make that argument again?
Malcolm L. Stewart: --Well, I think petitioner's reliance on subsection (D) is to the effect that however you would otherwise read subsection (E), subsection (D) deals specifically with removal to the country of nationality or citizenship, and if you don't meet the prerequisites for removal to that country under (D), then you can't do an end run by resorting to (E). And I'm saying if that works at all, it could work only when (E) is invoked to authorize removal to the country of current nationality or citizenship. It... (D) couldn't have any negative implications if we were attempting to remove somebody to Somalia because he was born there even though he was currently a national or citizen of a different country.
Antonin Scalia: That's... that's not one of the choices under (E). It doesn't... (i) through (vii) don't include the state of nationality.
Malcolm L. Stewart: They... they don't include that, but as a practical matter, I think the state of nationality is... is always or virtually always going to be covered because they include country of birth, country from which the alien departed to enter the United States, country in which he previously resided, country of... that's under the sovereignty of... that exercises sovereignty over the country in which he was born. One reason for... possible reason for parsing it the way Congress did in (E) is that sometimes the reason that a foreign government doesn't give acceptance may be that the foreign government disputes our contention that this individual is a national of its country, and in order to avoid a recapitulation of that dispute at the subsection (E) stage, Congress might, at least, have though (E) is going to turn on objective factors, factors that are unlikely to be the subject of dispute, and not on the potentially contested question of what country is the... the alien's current country of nationality. The... the other thing I'd like to say about the... the two policy justifications that petitioner has given. The one is that this... his reading of the statute is necessary in order to prevent the... this Government from being entangled in foreign confrontations. And... and our view is that the executive branch is well equipped to prevent that from happening. That is, so long as the statute doesn't require us to attempt repatriation over the objection of another foreign government, the executive branch is... can and will exercise discretion to attempt that course of action only when we believe that it's consonant with the foreign policy goals of the... the United States. The other policy objection to our reading that petitioner advances is that places without functioning central governments are likely to be dangerous and that Congress would have wanted to prohibit removal to an... a country where the alien would face hardships. And we don't attempt to minimize the potential for hardship if an alien is removed to Somalia, but there is a network of Federal statutory provisions that specifically address the question of resistance to removal based on the potential for harm in the receiving country. And if petitioner can't qualify under any of those, then it's unlikely that Congress would have intended the absence of a functioning central government to serve as a sort of prophylactic or surrogate for dangerous... dangerousness. And it's worth noting in that respect that the Secretary of Homeland Security currently administers the temporary protected status program which covers Somalia. It contains broad protections for removal of aliens there, but petitioner is ineligible for relief under that provision because of his criminal conviction. Thank you, Your Honor.
William H. Rehnquist: Thank you, Mr. Stewart. Mr. Keyes, you have 3 minutes remaining.
Jeffrey J. Keyes: I would like to respond by pointing out that on the... on the point that Justice Souter raised with respect to the language of the statute prior to 1996, my... my brother counsel did not quote the most important part of the statute that was in effect at that time. It's set forth on... on 6a of the brief for petitioner. And the critical part says, thereupon deportation of such alien shall be directed to any country of which such alien is a subject, national, or citizen if such country is willing to accept him into its territory. That same language did not just appear in the statute just prior to 1996. That was the language that was in the statute in 1952 when it was first passed, and that can be found on page 1a to 1b of... of our brief. I would also like to point out that we can... in terms of... of interpreting this statute, it's also helpful to look at other statutes that were passed in 1996, specifically in the alien terrorist statute where the Government is... gets to remove someone who's been classified as an alien... alien terrorist. That statute, which is 8 U.S.C. 1537(b), starting on page 8a of our brief, says specifically that an alien terrorist shall be removed to a country whose government is willing to accept that alien. I would submit that this, if in fact, Congress is going to have... if we're going to have this removal requirement applies clearly to alien terrorists, then certainly this demonstrates that this has... this requirement has always been part of that statute. And in 1996 Congress had before it those consistent interpretations. Congress also had before it in 1996 the fact that tens of thousands of aliens could not be deported over the years to countries that would not accept them. And in 1996, it restated the statute, having those facts and also the consistent judicial history which interpreted the statute to always require acceptance. As a result of that, we could apply the principle that there was no watchdog barking in the night. Thank you.
William H. Rehnquist: Thank you, Mr. Keyes. The case is submitted.
Speaker: The honorable court is now adjourned until tomorrow at ten o'clock.