Earl Warren: Number 481, Rockwell Kent and Walter -- Walter Briehl, Petitioner, versus John Foster Dulles. Mr. Boudin.
Leonard B. Boudin: Mr. Chief Justice and Your Honors. These cases which are suits for passports by American citizens against the Secretary of State arose in the District of Columbia and involved the following issue, whether the Secretary of State has the right to deny passports to American citizens on the basis of political standard devised by the Secretary of State and the issues involved are both statutory and constitutional. So, of course, we address ourselves to the alleged lack of authority on the part of the Secretary of State under any statutes of the United States. The facts which I actually referred to very briefly are these. Dr. Walter Briehl is an American psychiatrist who's approximately is 27 years. He served as a lieutenant colonel in United States Army in charge of Army hospitals at the psychiatric parts of the hospitals. He is a practicing psychiatrist in Los Angeles and is connected with many medical societies, psychoanalytic, psychiatric and otherwise which I specified in the record. As a member of the society as a delegate of these medical societies, he has had occasion to travel abroad, most recently in 1953 with an American passport for the purpose of attending international conventions on mental health and on psychoanalysis and reporting back to his medical societies. He did that in 1953, and when he attempted to renew his passport in 1955 for the same purpose acting as a delegate of his medical societies, he received instead a typical letter from the Director of the Passport Office in which it was said, that certain allegations had been made against Dr. Briehl by persons who are not specified. The allegations were of course not for him, but we know that he had at one time unspecified been a member of the Communist Party and that he has been a member of a number of organizations on the Attorney General's list, three or four or five, or associated with him and that he had once petitioned to the President of the United States not to prosecute Communists under the Smith Act. And so, the Department had he made these charges against Dr. Briehl said to him in his letter, “We ask you now for an affidavit as to whether you have ever been a member of the Communist Party, ever, whether you are now, and we ask you also to explain under oath your connections with the Communist-front organizations which we have described in our letter and any other Communist-front organizations?” Dr. Briehl demanded a hearing, a quasi-judicial hearing in view of a recent decision of the Court of Appeals, Dulles against Nathan, and instead he received an informal hearing in the Passport Office in 1955 and which he was the only witness. No witnesses were offered by the Government in support of any of the allegations and instead, the Passport Office sought to examine Dr. Briehl with respect to the subject matter of his letter. He declined to answer the questions with respect to Communist Party membership, Communist-front organizations so-called or his associations. And the Department refused to issue a passport to him, indeed, refused to act upon his passport application at all. Now, the case of Mr. Rockwell Kent is essentially the same. Mr. Kent is well-known explorer, writer and artist, internationally known of course, known -- I assume to the members of this Court. He has traveled abroad very widely for more than 50 years using passports. Well, passports were required as they have more recently and I assume traveling without passports in the earlier years when they were not required. And the great created work manifested in his writings and in his art has been the product of this international travel. Mr. Kent applied in 1955 for a passport to travel abroad where as he said under oath, "Pleasure and profession." And I assume that the tour intermingled with him, and he received a similar letter from the Director of the Passport Office stating, “You Mr. Kent are alleged who have been a member of the Communist Party, time, place unspecified. You Mr. Kent had been connected with many organizations on the Attorney General's list and you have done many other things, some of which we will now specify. And Your Honors will see and I think the outrage of the kinds of things alleged on page 8 of my brief, alleged against an American citizen as mentioned as a reason for denying him liberty of movement. For example, it has been alleged if you sought to repeal in the Walter-McCarran law. It has been alleged that you urge clemency for Rosenberg, so it is. You urge to release on bail of Steve Nelson who was convicted of sedition in Pennsylvania, he was sponsor of a petition addressed to Attorney General Brownell criticizing the use of paid informants. I surely, do not have to rely upon the decision of this Court upholding the positions taken by Mr. Kent on many of these issues. The fact is that Mr. Kent had a constitutional right to take all of these positions and at the same time to have the liberty of movement which is demanded. Now, both Mr. Kent -- Mr. Kent also, I may say, was given the same kind of informal hearing, only with two variations. His autobiography called “It's Me, O Lord” which he tells the entire philosophy of life as candidly as anyone could, was introduced in the evidence by the Passport Office. His book was put in there for the purpose of showing that Mr. Kent had admitted that he had been connected with the organizations on the Attorney General's list. And also, the Passport Office introduced testimony given by Mr. Kent before the McCarthy Committee in 1953 because the Department considered it significant that he had asserted his constitutional privilege against self-incrimination. Both plaintiffs started these lawsuits which were dismissed in the District Court under the Secretary regulations and the dismissal was affirmed in the Court of Appeals. Now, I should of course give Your Honors first the regulations because they are -- before I give Your Honors the regulations, may I state two concessions made by the Government which has never been made in the course of these two years of litigation or indeed in the five years in which we have been litigating many other passport cases in the district. For the first time, we learned in this Court and into the credit of the Government that there is a constitutional liberty of movement. They make that concession. They seek to undercut it but we'll discuss that later. Secondly, they, for the first time disavow the claim of inherent power on the part of the Secretary of State to control the movement of citizens abroad, a claim of inherent power that was made up to this Court's level. Therefore, we come down to the preliminary questions. Where is the statute that authorizes the Secretary of State, prevent American citizens from going abroad for profession, pleasure, vagrancy or any other reasons? Now, we turn to the regulations again. The regulations holds vagueness and I must say, outrageous character is apparent from their reading --
Speaker: (Inaudible)
Leonard B. Boudin: I shall hold --
Speaker: (Inaudible)
Leonard B. Boudin: Very well, I shall hold -- withhold to turn, Your Honor. I shall let Your Honor's judgment determine that after reading the regulations. The regulations provide in Section 51.135 at page 66 the following.
Hugo L. Black: Page 56, of what?
Leonard B. Boudin: 56, thank you, Your Honor, of my brief.
Hugo L. Black: Your brief.
Leonard B. Boudin: There are three categories of citizens who are not to be permitted the right to travel, three categories. The first, category A are members of the Communist Party who have recently terminated -- or who have recently terminated such membership under circumstances indicating of the view of the Secretary of State, they are still controlled by the Communist Party. Category B are persons regardless of a formal state of their affiliation who engage in activities which supports the Communist movements under circumstances indicating the view of the Department as subject to control. And category C on page 67 are persons regardless of a formal state of their affiliation after whom there is reason to believe on the balance of all the evidence of a going abroad to engage in activities which will advance the Communist movement. We are not concerned in this case with 51.136 which talks about people who are going abroad to violate the laws of the United States, or the people who would do things prejudicial to the orderly conduct of foreign relations or even prejudicial to the interest of the United States. We are concerned with 51.135. Now, the question is, where is the authority for 51.135? The regulations themselves, Your Honors will see on page 66 cite a single statute, 22 U.S.C.211 (a). And that statute, which is on page 59 of my brief, is also disavowed in this Court for the first time, although it's the only statute referred to the regulations as a source of the Secretary's authority. Because of time, I won't go into that statute because the Government has conceded that it does not give it the power to control travel, but merely to issue passports a somewhat different problem which I think I need not go into. The Government now however, for the first time relies exclusively upon the McCarran-Walter Act of 1952, print -- 8 United States Code Section 1185 is on page 60 of my brief, and which makes it a crime during the period of national emergency proclaimed by the President for American citizens who travel abroad, to depart from the United States or to enter the United States without a valid passport. Your Honors will note that this statute is not cited in the preamble to the Secretary's regulations. Your Honors will as a matter of fact note that this statute was not in effect at the time of the regulations of August 28, 1952. And finally, that the statute says nothing about an authority to the Secretary of State to control travel, and if it had said anything about such authority, I would of course call Your Honor's attention to the fact that there are no standards in the statutes. Now, if this statute is to be given any meaning whatsoever, it would have to be read in conjunction with, as a complement to the Internal Security Act of 1950, Section 6. That was the statute in which Congress decided what character of persons should not have passports. And that statute appears at pages 59 and 60 of my brief. The standards set forth in that statute, the standards set forth in that statute is a single one, persons who are members -- presently members of an organization found by a final order of the Subversive Activities Control Board, to be a Communist action organization. Present membership in an organization found by that Board to be a Communist action. Your Honors can compare that particular statute with the standards set forth in the Secretary's regulations and the differences are quite obvious.
William O. Douglas: Are you going to refer to the executive order cited in the regulations?
Leonard B. Boudin: Yes, I shall Your Honor. The Executive Order referred to in the regulations is an executive order which merely provides that the Secretary may issue regulations with respect to the issuance of passports which regulations must be consistent with the provisions of the Executive Order. The Executive Order itself following the tradition of Executive Orders from the beginning of this nation set forth no substantive conditions for the right to travel and we therefore assume that when the Executive Order said that the Secretary can issue a regulation consistent with, there must be regulations of essentially the same kind.
William O. Douglas: But page 65 of your brief, item 124 of the Executive Order that the Secretary is authorized in his discretion to refuse to issue a passport.
Leonard B. Boudin: Yes. Now, of course those -- those regulations, that regulation of 7856 was promulgated at 1938 in a time when a passport was not necessary for travel. And we are now discussing a situation in 1955 and 1958 when a passport has become necessary for travel. The President has never in any regulation, in any proclamation said that the Secretary has the power to issue regulations, establishing substantive conditions. Now, with regard to this part of the President's Executive Order as relating to the normal -- normal right to issue passports, but not to the right to deny passports when travel is a condition upon it. Now, the Secretary --
William O. Douglas: The only relevancy then in that order is 1 -- paragraph 126.
Leonard B. Boudin: That is correct. I think that would be true and that would -- I think that would provide for the Secretary to issue regulation of the same procedural time that he always had issues throughout the history of this country, not regulations which determine who can travel. Now, the Government cannot find any content in the McCarran-Walter Act, either by way of authority to the Secretary to control travel or by way of determine -- setting forth the standards pursuant to which this travel can be controlled. And so, the Government relies upon a statute of 1918 and the statute of 1941, predecessor statutes but both of course, dealing with war-time situations. And the Government cites a House Committee Report in which it was indicated. There is some language there that it was intended, statute of 1918, to present espionage. All that we can say to that is that it is -- the statute of 1941 -- sorry, the statute of 1952 which is here involved contains no authority of any kind and that it is very difficult to read into that statute, a House Committee Report involving a 1918 statute involving war time, and war time espionage as an authority to the Secretary in 1952 to promulgate regulations dealing with the subject of Communism and membership on the Attorney General's list. And we may also add that of course in 1918 and 1941, Congress had not spoken. Congress had not said that a certain class of American citizens could not travel, an issue that is not before this Court of course, because Your Honors recall, there is no final order involving the Communist Party or everyone else as a result to the litigation that has been in the courts since the passage of the McCarran Act. But what is significant is that all the reading of the McCarran-Walter Act at least gives it some meaning because we can read it in conjunction with the Act of 1950. The Secretary's reading gives him authority carle blanche to deny the right to travel to American citizens, no limitations, no standards whatsoever. I may say also as a final word on this subject that the regulations of 1952, August 28, 1952, were never intended to be based upon the McCarran-Walter Act, aside from the fact they don't mention it, and the fact the Act wasn't in effect then. As the Government admits, as we have cited Secretary or Secretary Office is admitting. The regulations of 1952 are intended to comply with what the Secretary believed to be the spirit of the Internal Security Act of 1950. And it is our position that the Secretary must follow the latter of that statute and not what he conceived to be the spirit. If Congress determine the adequate remedy, namely the remedy by a hearing, certainly consisting of more due process than has -- than has occurred here on the part of the Secretary, namely hearing before the Subversive Activities Control Board. And then a relatively precise statement of who it is who is to be denied a passport, namely a present member, not a person who may have, in the view of the Department, follow the Communist Party line, not a person who may have been a Communist Party at one time. We are not here arguing the constitutionality of the Internal Security Act of 1950. We think that the objections which I'll next turn to are very substantial objections even against that statute but are not to the same degree, namely the objections under the First Amendment. I therefore, now turn to the First Amendment part of my argument. We have seen here that there are sanctions imposed by the Secretary of State. The sanctions consist of a restraint of movement. May not seem like a great restraint to a man who's confined in the present but is certainly a restraint. And it is a restraint which has had an effect upon the professional activities of these men, upon Dr. Briehl's patient, upon his medical society, upon Mr. Kent's creative work and of course upon their livelihood. The admitted basis for the restraint is the exercise of lawful activities, disapproved by the Government, there's no conceptual questions to that. It referred to the Secretary of State, the Attorney General and congressional committees or the certain character as the Government. But the fact is that these are all lawful activities protected by the First Amendment. And because of this past exercise of lawful activities, constitutionally protected, no one has ever charged a fine here on the part of either petitioner. These petitioners are denied this liberty of movement given to other American citizens. I may say of course that we have called attention in our brief to the vagueness of the Secretary's standards relying upon -- inquired upon statements made by Mr. Justice Frankfurter's concurring opinion in the Burstyn case which I will not quote from at this moment, but we consider equally significant, the fact that there are lawful activities which are the basis of the denial of the right to travel, and that there is a complete indifference for the purpose of the travel. It makes no difference from the Secretary of State whether there is a medical convention abroad or whether a man wants to paint. Indeed, Mr. Kent was told by Mr. Shipley, the former Director, “I will not give you a passport to go to any country for any purpose.” This --
Charles E. Whittaker: I don't deny that -- I don't deny the actions, I don't deny the availability of the constitutional rights, but where do you get it from the First Amendment, what part of the First Amendment?
Leonard B. Boudin: Let me tell Your Honor that. I get it in two ways. First, because these people -- because they have exercised the right of petition, the right of making speeches.
Felix Frankfurter: Well, that's the first time you used the word “a right to petition”.
Leonard B. Boudin: I -- well, I should have that. The right of assembly.
Felix Frankfurter: What kind of right of petition is urged here?
Leonard B. Boudin: Well, they have addressed themselves to the President of the United --
Felix Frankfurter: I'm not bringing -- he may not have the right of petition but in order to invalidate something on some constitutional ground -- ground, we must refer to a provision of the Constitution or something that is inevitably drawn from the whole provision.
Leonard B. Boudin: Of course.
Felix Frankfurter: Now, which part of the -- we just announce it everytime a question of constitutional order comes up here, just First Amendment --
Leonard B. Boudin: No. Of course --
Felix Frankfurter: -- you can call the universe.
Leonard B. Boudin: Of course, I would not make any such broad statement, Your Honor.
Felix Frankfurter: Well, which part in --
Leonard B. Boudin: I am -- I am --
Felix Frankfurter: -- from the First Amendment is it?
Leonard B. Boudin: I am --
Felix Frankfurter: Is it freedom of speech --
Leonard B. Boudin: It is --
Felix Frankfurter: -- or establishment of religion?
Leonard B. Boudin: May I? It is freedom of speech.
Felix Frankfurter: Well --
Leonard B. Boudin: It is freedom of assembly. If Your Honor --
Felix Frankfurter: One -- one person going by himself?
Leonard B. Boudin: Well -- well, no. I -- I -- let me turn back first --
Felix Frankfurter: I just want something explicit --
Leonard B. Boudin: Yes. I think it must be explicit --
Felix Frankfurter: -- saying, something else is undue but either by ancillary government does.
Leonard B. Boudin: I would make two points, Your Honor. The first is that in denying the liberty of movement to the petitioners --
Felix Frankfurter: Now, where does that come from? Does that come from the First Amendment?
Leonard B. Boudin: Well, I think it probably is simply a liberty within the meaning of the Fifth Amendment. The Government concedes that.
Felix Frankfurter: Well, all I'm suggesting is that you give me the basis on which you asked me to declare action of Congress or the precedence or a subordinate's unconstitutional --
Leonard B. Boudin: I am coming to that, Your Honor.
Felix Frankfurter: Is that asking too much?
Leonard B. Boudin: No, it certainly not. I am suggesting to Your Honors that when Mr. Kent is denied the right to travel because he has petitioned the Attorney General or because he has made a speech or because he has taken a public possession or when Dr. Briehl is denied his right to travel because he, Dr. Briehl, wrote an article for a magazine called "Social Work Today" with -- which the Attorney General disapproves of that that this is a restraint upon Dr. Briehl and Mr. Kent in the First Amendment activities which they exercised in the past.
Felix Frankfurter: But I understood you that your main ground and almost the major premise of your argument is that here is an unfair limitation upon the right of motion, the right to travel?
Leonard B. Boudin: Yes.
Felix Frankfurter: Now, does that come from the First Amendment?
Leonard B. Boudin: I think it comes from the First Amendment and I think it comes from the Fifth Amendment.
Felix Frankfurter: Well, if they come from the Fifth, but does it come from the First?
Leonard B. Boudin: Well, I think I -- Your -- Your Honor is really saying is liberty of movement, the First Amendment right.
Felix Frankfurter: That's what I'm asking --
Leonard B. Boudin: I -- I would say liberty of movement is a Fifth Amendment right and that the Fifth Amendment right cannot be taken away from the petitioners because they have exercised First Amendment right in the past. That was really my point.
Felix Frankfurter: Yes, but I --
Leonard B. Boudin: Now --
Felix Frankfurter: I -- I was -- I appeal -- I can understand the problem better if it's unlikely because --
Leonard B. Boudin: Well, I'm -- I'm sorry I didn't make it that clear, Your Honor, before. Now, the -- the Secretary of State takes the position here through the Government that somehow, or that something may happen abroad if the petitioners go there which justified a restraint and he believes as something may happen because their past political associations are to him undesirable. And we have never really had it specified in any of the courts or indeed in this Court whether it is that his belief, Dr. Briehl will do or Mr. Kent will do if they are abroad. Now, even if it was specified, even if we were told what they would do when they went abroad, we would argue that this is a form of prior restraint. We thought --
Speaker: Could I ask you a question about the posture of this directivee? I had understood, maybe I'm wrong, that there was no determination made here. There was no informal, there was an informal hearing, but no formal hearing that things came to an end in the Department when your clients declined to, both will look to furnish a non-Communist affidavit?
Leonard B. Boudin: More than that, and where they declined to submit the examination with respect to other matters --
Speaker: Right.
Leonard B. Boudin: -- of past political associations. Yes, the Department (Voice Overlap) --
Speaker: And that therefore, the Secretary's position was, if that stays that since he had a right to request that information and since you refuse it, that ended the matter and he will justify in denying a passport, is that the substantive --
Leonard B. Boudin: That was the Secretary's position. Quite so, yes.
Felix Frankfurter: That -- does that mean that if the Secretary asks certain questions by which say as Judge -- Justice Washington's view, he could have and by which he couldn't, that he can just say, "I won't answer any and be justified because they've included some that shouldn't have been asked?”
Leonard B. Boudin: Well, the Secretary -- I can't answer that, Your Honor. The Secretary --
Felix Frankfurter: But that is not this case?
Leonard B. Boudin: No. The Secretary never asked -- offered United States a choice.
Felix Frankfurter: Pardon me?
Leonard B. Boudin: That would be this case if we were limited it to the affidavit issue, but we aren't. We say that the Secretary have no right to promulgate -- political regulations at all.
Felix Frankfurter: Well, I know but you passed that. But you passed that.
Leonard B. Boudin: But if we pass that and we come nearly to the affidavit, then Your Honor would have a point on the affidavit, but we're addressing ourselves to the basic standards, and the affidavits we regard is a secondary aspect of this.
Felix Frankfurter: Well, you break up your argument into three or four positions. I can deal with each one separately just as you do.
Leonard B. Boudin: I'm sure you -- I'm sure Your Honor, and --
Felix Frankfurter: And I'm asking you whether -- I've asked you a specific question which to me is in the case, namely, the Secretary asked a man to answer 10 questions. Suppose agree without further ado that five of them, he's unauthorized to ask. May an applicant for a passport say, “I don't propose to answer any of these.”
Leonard B. Boudin: Well, if Your Honor thinks that the Secretary has a right to ask five out of 10 questions --
Felix Frankfurter: Well, at this point, I'm -- I must make that assumption or to put the question.
Leonard B. Boudin: Then that -- I must put aside my assumption he has the right to ask none.
Felix Frankfurter: Well, I --
Leonard B. Boudin: Therefore -- therefore, adopting Your Honor's assumption, my answer is that, no, the Secretary would still act improperly in denying a passport because he isn't giving us a choice. He knows whether he will take three or four. He says he wants them all. Now, we aren't suppose to pick and choose. We aren't the judges there .When the Secretary says he wants 10 answers, we can't assume that he'll take three. That's really my position on that.
Felix Frankfurter: Well, but you can -- you can make him a tender.
Leonard B. Boudin: Now, well, I think you --
Felix Frankfurter: You could answer -- all of us give questions, hasn't -- we answered some questions and not answer others. We can ask him.(Voice Overlap)
Leonard B. Boudin: I -- I suppose one can make tenders if the Secretary was dividing his examination into separate pieces. But this a full-scale demand of a right to examine a man's political associations, or the right to ask him why he -- why he filed the petition with the Attorney General. Why he invited Paul Robeson for dinner. Well, we aren't supposed to take each one of these 100 questions and break them up and say, “A few will answer and then in few cases, we won't answer.”
Felix Frankfurter: And you suggest --
Leonard B. Boudin: I suggest as if --
Felix Frankfurter: And you think that -- that answer of yours doesn't even require a discussion? That's the matter of --
Leonard B. Boudin: I -- I now --
Felix Frankfurter: It's so obvious, so obvious --
Leonard B. Boudin: I never think that anything I say is obvious, Your Honor. I'm merely suggesting that to me. It seems to me that the Secretary is the best one to decide whether he will take a few answers or a lot of answers or whether he will insist on everything. Now, I may say that there is a question that the -- the Secretary here relied upon the Japanese relocation cases, upon the English detention cases, upon A.C.A. against Dowd, upon the alien, upon the cases like Garner. And of course all of these are distinguishable. The Japanese cases and the English cases were cases of actual war time danger and they are extreme cases, these cases which certainly cannot prevail at this time. A.C.A. against Douds, we dealt with a congressional determination, a finding that Communist leadership of labor unions was a dangerous thing because of the political strikes and that these unions have been given tremendous power by the Act. And therefore, although Court was careful to say they weren't actually agencies of the Government, I think, there was an implication of responsibility there which in the view of the -- the legislature and which this Court pay deference to, justified a degree of control over this union leadership. And of course in that case, the unions could have remained with their union officials, Communist if they were, simply not use the facilities of the National Relations Board. A loss and a substantial loss, but the unions could have functioned. We of course cannot travel in the absence of passport.
Felix Frankfurter: This is on your proposition that there's no power to withhold a passport or rather that a man can go abroad without a passport. What's stopping them from going abroad without a passport?
Leonard B. Boudin: Under the McCarran Act of 1952, it is made a crime to go abroad without a passport in the event of a national emergency declared by the President. In January 17, 1953, the President declared such a national emergency. That declaration has never been rescinded, now five years later. I think I will reserve my time if I may.
Earl Warren: You may. Mr. Solicitor General.
J. Lee Rankin: Mr. Chief Justice and may it please the Court. The Government concedes before this Court that there is a right to travel and believe that it was protected by the Fifth Amendment. That concession was made in this Court for the first time. I don't think we are entitled to any credit for it.It's our duty and obligation to this Court and the country, as soon as we are able to learn that we are wrong to come forward and say so and we do. That does not decide this case however. The problem in this case is much more complex than counsel has indicated to this Court. The question that seems to us stops at the threshold in these two cases and is best considered if we recognize that the Secretary here refused to proceed with these proceedings, hearings or processing. In any respect because of one thing, the refusal of these petitioners to give the affidavit that was required in -- under the proceedings that the Secretary had set out. So, we then reach back into the question of what authority used there under the law for the Secretary to require of these things, and we first have to turn to the statute. Now, it's been claimed that the Government never called attention before to this -- to this statute in regard to travel control, Section 1185. And in our brief on pages 13 and 31, this very case before the Court of Appeals, we call attention to both of those statutes and say that they have to be construed together in order to determine the right to the parties and the authority that we conceive in this case. Now, that's not the brief in this Court, but I want to make it clear that we did call attention to this very point in developing in our brief before the Court of Appeals because it's charged here that this is the first time we raised that point.
Speaker: You're going to take a substantial --
J. Lee Rankin: Yes, sir. The problem in regard with the statutes are these. The Government would have an easy time of it, if we could just say that the Secretary has the authority to grant or deny passports either inherently or by statute and thereby, the petitioners have no rights to travel. Because if we could put that statute to 11 (a) and its predecessors in a water-tight compartment one side and say, “You examine that.” I'm satisfied but this Court would come to the conclusion that for a period of -- 143, there are some three years or some lesser period, at least since 1856. That power has been exercised both as an inherent power of the Secretary and also recognized by Congress in later years whereby he has issued passports and denied passport or that long history of this country. Now, I think --
Felix Frankfurter: Are the terms -- is the -- is the passport printed here where -- that exact terms of the passport.
J. Lee Rankin: I don't believe it is, Mr. Justice, but it's referred to, I think in a footnote, the nature of it and it's recognized that it is a political document. And it asked the -- the foreign country to recognize this person and treat him with consideration and so forth.
Felix Frankfurter: Could you -- could you have a copy, a struck off of the exact text of what it is that the passport says? I'm thinking of -- I like to see what the present passport is. Maybe I could look at some of my old ones, compare to what it was in -- in the old case that you cite in the D'Arbel case. Is it substantially like that?
J. Lee Rankin: I think so, Mr. Justice but my co-counsel says he thinks it's in the brief and we'll -- since we find it, I'll tell you, call it to your attention. That statute of -- but first, this power was exercised by the Secretary over such a long period of years and the Government claims, I want to make this clear, that there is the inherent power in the Secretary to grant or deny the passport, but it does not claim the power in the executive branch of the Government at all to grant or deny the right to travel. Our problem is not as difficult here because, it -- in fairness to the petitioners, it seems to the Government, that's the only way you consider this, can -- can properly consider this question is to take both of these statutes which clearly Congress intended to do in the history and it -- its consideration of this problem and try to put them together because the Congress took this power that the Secretary had been exercising over a considerable period of years as an inherent power and later recognized by the Congress and passed in this statute in which there's a general statement of the legislative history in our brief, and said, “Take this power of granting or denying a passport that you've got over here, Mr. Secretary, and you act upon it.” And then they passed over here, a separate statute, 1185 and I'll call your attention to it in Appendix A of our brief, the Government's brief in which they said, “If you don't have this passport that the Secretary grants or denies, you can't travel.” So, we say that the Government must face up to the proposition that it must consider both of these statutes and we think the petitioners must barely consider both of them in order to try to construe the rights of the parties in -- in this case before the Court.
Felix Frankfurter: Mr. Solicitor, I noticed that in Robert E. Johnson and Taney's argument in 1835-1 haven't looked at the statute,but the reporter Peter gives their argument. It says the acts of Congress recognized passport. This is what Robert V.Johnson and Tony said in their arguments in 1835. You happen to know that those -- what those recognitions were by a statute? I don't think they are refer -- I've just looked at statutes and outside of your brief.
J. Lee Rankin: Sorry, Mr. Justice, I don't recall that particular -- but there was a recognition back in 1814 of the restriction in travelling from parts of the United States, outside back in those days and there was also by Secretary Seward, a restriction that he made that was not statutory at all. Now, we don't claim that the Government has that power, that the executive branch has that power to do it on its own, but he did exercise it.
Felix Frankfurter: Well, this case, as you know, is a passport that John Quincy Adams signed as Secretary of State.
J. Lee Rankin: That's right.
Felix Frankfurter: So evidently, he must have thought that is the power to issue passports.
J. Lee Rankin: Well, it was such a recognized power by all sovereign countries. That has been exercised all over the years, but that doesn't solve our problem --
Felix Frankfurter: No, no, no, but --
J. Lee Rankin: because the -- it's always been treated over a great period of years as a document that said, “Mr. Citizen A is entitled to travel as a respected citizen of our country throughout the various countries that are designated or except for the questions.”
Felix Frankfurter: It couldn't answer the question of whether a man can travel and have consequences follow, deleterious consequences if he doesn't get one of these documents, which is the problem here.
J. Lee Rankin: That's right, Mr. Justice. And we have to reach back to the question of whether or not the Congress properly could tie these two powers together, that is the travel control and say that it will be measured and regulated by whether or not a man has or it does not have a passport and then examine the question of whether or not this Congress actually did that very act in it's passing of the statutes, whether the statutes are broad enough to cover what the Secretary did.
William J. Brennan, Jr.: Well, Mr. Solicitor, are you saying that without 1185, 211 (a) could not in any event be the source of any power to control travel under the guise of a power to grant or refuse passports?
J. Lee Rankin: That's what we say. So that if there is such power that is the use of the passport power to control travel. It's got to be found in 1185. I would say, yes, Mr. Justice. The only thing that I would like to add to that is it seems to me, the history shows that Congress contemplated the use of that in such a way that it -- it considered that they were making the two statutes and that it was using this passport control, but it's that particular statute that gave the right to grant or deny passports, did not give the right to grant or deny --
William J. Brennan, Jr.: Well, as it was as I understood you.
J. Lee Rankin: -- travel, yes.
William J. Brennan, Jr.: So in other words, you really have to focus on 1185 to find congressional authority.
J. Lee Rankin: Very largely or entirely. The problem -- the consideration in the --
Felix Frankfurter: Congressional authority but I take it -- do you say congressional authority or -- or congressional actions or basis for the Secretary's authority which --
Felix Frankfurter: Well, I know it's congressional action as a basis for the Secretary's authority.
William J. Brennan, Jr.: And that's what I have with reference to --
J. Lee Rankin: All right. Now, Section 1185 is set out in the Appendix A and it provides in -- generally, in regard to the proclamation of the emergency. There's no question between the parties that that emergency was proclaimed by the President and that thereafter, it also provides that he proclaim that these restrictions be necessary in that emergency and that was proclaimed.
Earl Warren: We'll recess now.


Earl Warren: 118, Bantam Books, Incorporated, et al., Appellants, versus Joseph A. Sullivan. Mr. Manges.
Horace S. Manges: Mr. Chief Justice, all the members of the Court, may it please the Court. This is an appeal from the Superior Court of Rhode Island. Before appellants, Bantam Books, Dell Publishing Company, Pocket Books and the New American Library of World Literature are publishers of paper bound books distributed in that state. The appellees are the members and the executive secretary of the Rhode Island Commission to encourage morality and youth. This appeal raises two basic questions. First, does Rhode Island Resolution Number 73 which created this commission tend to suppress or inhibit the circulation of books in violation of the First and Fourteenth Amendments? Secondly, did the Commission's actions in sending notices to book sellers and police chiefs throughout the State of Rhode Island stating that, “particular publications were objectionable for a sale or display to youth tend to suppress or inhibit the circulation of those books and did those actions actually suppress or inhibit the circulation of those books again in violation of the First and Fourteenth Amendments”. Rhode Island Resolution 73 was enacted in 1956, its operative provision as amended in 1959 insofar as pertinent here reads as follows and I read from page 2 of the record, “It shall be the duty of said Commission to educate the public concerning any book, etcetera, containing obscene, indecent, or impure language as defined in chapter 11-31 of the general laws entitled obscene and objectionable publications and shows and to investigate and recommend the prosecution of all violations of said sections”.
Speaker: (Inaudible)
Potter Stewart: Sections are criminal sections?
Horace S. Manges: Yes.
Potter Stewart: The section to which reference is made?
Horace S. Manges: Yes. They deal not only with minors but also adults and they also deal with in rem proceedings which may be brought in connection with allegedly obscene literature.
Potter Stewart: So, to that extent there's non-criminal. They're criminal plus the some other kind of a prohibitory --
Horace S. Manges: Both Mr. Justice Stewart. In 1960, these plaintiffs instituted this action in the Superior Court. The case was tried before Justice MacKenzie and a decree was there added, adjudging one that the resolution was constitutional. Secondly, that the Commission's actions were unconstitutional and the court issued an injunction enjoining the Commission from the continuance of those acts. Both sides appealed the Rhode Island Supreme Court. The appellants from that portion of the decree which upheld constitutionality of the resolution the appellees from the rest. That court by its majority opinion sustained the constitutionality of both the resolution and the Commission's actions.


William H. Rehnquist: We'll hear argument now number oh oh seven thirty, Adarand Constructors, Inc. versus Mineta. Mr. Pendley. [Inaudible]
William P. Pendley: Mr. Chief Justice, and may it please the Court. In nineteen eighty-nine, the small family business that is Adarand lost a Federal contract because of a racial program and the race of its owner, Randy Pesh. In nineteen ninety-five, this Court held that Adarand had standing to seek forward-looking relief because that program prevented it from competing on an equal footing. In two thousand one, Adarand returns to this Court because it still can't compete on an equal footing. [Inaudible]
William H. Rehnquist: Mr. Pendley, That...
William H. Rehnquist: treat, if you will, fairly shortly coming up in your argument, the Government says that in a direct procurement program, these sort of preferences that you're challenging are simply not used in Colorado.
William P. Pendley: No, Your Honor.
Antonin Scalia: challenged those, as I understand it.
William P. Pendley: Your Honor, Adarand has challenged all manner in which the pro-
Antonin Scalia: But they apply only in the State subsidized programs.
William P. Pendley: No, Your Honor.
Speaker: In  i-
Ruth Bader Ginsburg: I thought the monetary incentives have been declared unconstitutional by the district court, affirmed by the Tenth Circuit.
Speaker: Not at all, Your Honor.
Ruth Bader Ginsburg: call they what they call the subcontracting...
Speaker: Compensation clause, Your Honor.
Ruth Bader Ginsburg: Wel- didn't both courts hold that that was unconstitutional?
William P. Pendley: What happened was that the the the district court held that the entire program, all of section eight D of the Sub-Small Business Act, was unconstitutional.
Speaker: sufficiently.
Ruth Bader Ginsburg: that you were complaining about last time around, that one has been held invalid.
William P. Pendley: It it Your Honor, it is the...
Speaker: There are...
Ruth Bader Ginsburg: challenged that.
William P. Pendley: Excuse me.
Ruth Bader Ginsburg: Th- the Tenth Circuit, I thought, said that the clause that you were complaining about last time around was invalid.
William P. Pendley: No, Your Honor, it is not correct.
Speaker: you just answered my question. You said they...
Ruth Bader Ginsburg: mov- they removed the program.
William P. Pendley: No, Your Honor.
Speaker: They did not remove the program.
Ruth Bader Ginsburg: case was moot or not because of it, but it's no longer what the specific thing you were complaining about no longer exists.
William P. Pendley: y- it is not right, Your Honor.
Anthony M. Kennedy: If we disagreed with you on that, are there other issues on which which are alive and...
Speaker: which you have standing. And what are those?
William P. Pendley: Absolutely, Your Honor.
Speaker: Are are these in...
Anthony M. Kennedy: Are these provisions you just mentioned in paragraphs four through six of fifteen USC s- six thirty-seven...
Speaker: Yes, Your...
William P. Pendley: Honor, they are.
Speaker: Okay now th-
Anthony M. Kennedy: th- that's those are the plans as to which the court of appeals said in in a in one sentence rather terse comment, nor are we presented with any indication that Adarand has standing to challenge paragraphs...
Speaker: four through six.
William P. Pendley: as this Court said in Adarand two thousand, the courts and parties have been confused as to the difference between standing and mootness, and the Tenth Circuit was confused as to mootness and standing, resulting in the Court's Adarand two thousand decision and and it appears to be...
Speaker: still confused as to the two.
Anthony M. Kennedy: that you have no standing to attack these paragraphs so we've just discussed.
William P. Pendley: Well, Your Honor, we believe the issue of standing is always before the Court.
Speaker: But what of the issue of...
Antonin Scalia: lack of standing is not always before the Court.
William P. Pendley: Well, well Your Honor, the...
Antonin Scalia: All the cases you're citing are cases where the both of the parties assumed standing and the Court looked into it on its own.
William P. Pendley: Well, a- Adarand believes that standing is is fair under rule fourteen A is fairly included within the questions presented because it was plain error for the Tenth Circuit below to hold that Adarand did not have standing because the Tenth Circuit below addressed the SCC and yet declined to address the statutory...
Speaker: program that we're -- Yes, ma'am.
Sandra Day O'Connor: challenge below the Small Business Act provision, section eight D four through six?
William P. Pendley: Absolutely, Your Honor.
Sandra Day O'Connor: Were were h- did Adarand bid on contracts issued by states with federal assistance?
William P. Pendley: Yes.
Speaker: Were they at issue...
Sandra Day O'Connor: in the suit?
William P. Pendley: It's not at issue in this case, Your Honor.
Sandra Day O'Connor: So, the only thing that you now say you're challenging are contracts direct contracts...
Speaker: Yes ma'am. Yes, Your Honor. It's...
William P. Pendley: the direct Federal procurement program which remains unchanged.
Sandra Day O'Connor: And the Tenth Circuit seemed to think that you did not challenge those Small Business Act sections that I referred to.
William P. Pendley: Well, the Tenth Circuit was abso- absolutely incorrect.
Antonin Scalia: Can you cite us any filing in the district court that specifically referred to section eight D four?
William P. Pendley: Yes, Your Honor.
Sandra Day O'Connor: Well, we have a joint appendix.
Speaker: you...
Sandra Day O'Connor: refer us to the pages where you challenged section eight D four through six? Can you say on page so and so of the joint appendix, it shows that we did that?
William P. Pendley: Well Your Honor, I I can cite to the pleadings t- that Adarand filed in this case where Adarand asserted that all parts of the program, all the statutory provisions that allow this program to exist and the United States to implement it, h- have been have been challenged by Adarand.
Speaker: What it says on...
Sandra Day O'Connor: there a separate question in your petition for certiorari addressed to eight D four through six?
William P. Pendley: No, there was not a separate question addressed to that, Your Honor.
Stephen G. Breyer: What they didn't say you didn't file it.
William H. Rehnquist: Jesus God...
Stephen G. Breyer: Do we dig the whole thing? Do we do something else?
William P. Pendley: We Your Honor, Adarand had challenged consistently first first of all, the subcontracting compensation clause is one mechanism that the United States developed to implement the statutory program that Adarand challenges.
David H. Souter: What's the answer to Justice Breyer's question?
William P. Pendley: That Adarand had standing at that time.
David H. Souter: No.
Speaker: What do we do?
Anthony M. Kennedy: premise was that you had no standing at the time the court of appeals wrote this decision.
William P. Pendley: I do not, Your Honor.
Anthony M. Kennedy: Okay.
William P. Pendley: The reason Adarand does not agree with that premise because the Laidlaw decision holds that once Adarand had standing, as a result of this Court's nineteen ninety-five decision, that standing continued until such time as the United States somehow made the case moot as the result of revocation...
Sandra Day O'Connor: Well, I thought Laidlaw stood for the principle that standing is judged as of the time the suit is filed.
William P. Pendley: Yes, Your Honor.
Sandra Day O'Connor: And subsequent changes affect mootness possibly, but not standing.
William P. Pendley: Yes, Your Honor.
Sandra Day O'Connor: Is that correct?
Speaker: That's my understanding.
William P. Pendley: But so what are the the question before the Court...
Speaker: on the issue...
Stephen G. Breyer: question was not quite so technical.
William P. Pendley: Conclude that the Tenth Circuit was wrong in stating what it stated in that footnote because Adarand specifically challenged eight D four.
Antonin Scalia: Well, you raised it, but you surely didn't address it.
William P. Pendley: Well, what what Adarand addressed was the const- at the Tenth Circuit was the constitutionality of this of this racial program, and and there are a number of mechanisms by which the ran- racial program is implemented against Adarand.
Antonin Scalia: That's right, but all of those other mechanisms the Government says in their brief have been washed away by by the by the benchmark study provision, which eliminates which eliminates the difficulty.
Speaker: You simply...
Antonin Scalia: say that despite the benchmark study, there is still one other objection we have.
William P. Pendley: It is one of the mechanisms by which the United States continues to implement this this regime, this program.
Antonin Scalia: And that wasn't discussed below and it and had barely been discussed in the briefs here.
William P. Pendley: W- in in addition, Adarand Adarand noted that the benchmark study allows it to be turned on and turned off, and it still can be turned down turned on in the State of Colorado.
William H. Rehnquist: What what do you mean by that,
Speaker: the th-  to be turned on and turned off?
William P. Pendley: Mr. Chief Justice.
Speaker: Well you say...
William H. Rehnquist: they reserve the power.
Speaker: They...
William H. Rehnquist: that mean that in a state where they say like Colorado where they say we're we're not using it, they no- they nonetheless do use it or that they could later...
Speaker: use it on a...
William H. Rehnquist: different study?
William P. Pendley: That's that's what our lodging demonstrates, Mr. Chief Justice.
David H. Souter: But to the extent that your your answer, in effect, tells us that the controversy is live and presented based on what you have in a lodging, you're really asking us to make a a determination of fact in a disagreement between you and the Government as to whether they're being used or whether they're not being used.
William P. Pendley: Well, the United States cannot assert that it does not use the mandatory subcontracting incentives because it's required by law.
Antonin Scalia: It has asserted that.
Speaker: That's what I thought they said in their briefs.
Antonin Scalia: Maybe maybe you say I mean, and and they have filed a a memorandum from Arthur Hamilton,
Speaker: Federal Lands...
Antonin Scalia: Program Manager.
William P. Pendley: I I'm asserting that it violates law and it violates the regulation.
Speaker: And then  -- Your Honor, may I...
William P. Pendley: may I finish this? I'm I apologize.
Speaker: Court   -- I'm sorry Your Honor.
Ruth Bader Ginsburg: ask m- what is i- very important, I think, in this in this case? And and you seem to be walking to away from it.
William P. Pendley: I'm apologize.
Ruth Bader Ginsburg: This Court is a court of review.
William P. Pendley: Yes.
Ruth Bader Ginsburg: Not a court of first view.
William P. Pendley: Your Honor, the the controversy Adarand presents in two thousand one is that Adarand still is unable to compete on an equal footing because the United States still has in its tool of in its tool kit mechanisms by which it is applying this racial preference against Adarand.
Speaker: Mr. Pendley...
John Paul Stevens: May I ask you just one question?
William P. Pendley: Yes.
John Paul Stevens: I I'd like you to a just assume for a minute that you're dead right on everything you've argued so far.
William P. Pendley: Absolutely, Your Honor.
Speaker: first rea-
John Paul Stevens: provisions of the statute that you challenge are unconstitutional.
William P. Pendley: Well, under strict scrutiny, the Court must start, as Croson dictates, with the question, has is there a strong basis in evidence of a compelling governmental interest? Congress declined this Court's invitation, and generous invitation, in nineteen ninety-five to provide that.
John Paul Stevens: Your first point is that the congressional findings are inadequate.
William P. Pendley: There are no findings, Your Honor.
William H. Rehnquist: Very well, Mr. Pendley.
Speaker: General Olson,
William H. Rehnquist: if if counsel for the petitioner is correct, it would be fair to infer there's a certain amount of bobbing and weaving going on on the part of the Government in this case.
Speaker: somewhere in your...
Speaker: and may it please the Court.
Sandra Day O'Connor: And that was the provision that was the focus of the original suit?
Speaker: Yes, Justice O'Connor.
Antonin Scalia: Well, can't cannot those under under the amended statute, cannot some additional compensation be provided but subject to the new regulations?
Speaker: Well, y- if we distinguish between the the Federal aid program and...
Speaker: the direct...
Speaker: Federal procurement program and the subcontractor compensation clauses the United States Government has abandoned in all respects, those provisions have not been justified, and the United States Government is not employing those.
Antonin Scalia: You're You're not employing them on what basis?
Speaker: On the basis that that...
Speaker: they've been determined...
Speaker: to be unconstitutional.
Speaker: of those paragraphs.
Antonin Scalia: provisions were specifically mentioned in Adarand's amended complaint.
Speaker: They they were mentioned.
Antonin Scalia: Specifically mentioned.
Speaker: The challenge was to the s- compensation clause provisions.
Speaker: business pursuant to...
Antonin Scalia: certainly didn't come as late as the reply brief, Mr. Olson.
Speaker: The...
Antonin Scalia: That is precisely the issue that...
Speaker: they they were arguing...
Speaker: in at th- at the beginning of the brief and not addressed in those provisions were not addressed in the arguments of the brief.
Speaker: confirmed that.
William H. Rehnquist: do are the benchmark studies conducted every year?
Speaker: They're to be conducted every year, but they're not actually being conducted that is that often.
William H. Rehnquist: What does that mean?
Speaker: Well, it's one of those one of those Government programs that it it is hoped will be conducted more often than they actually get conducted, audience laughter> Justice -- Chief Justice Rehnquist.
William H. Rehnquist: But /audience laughter> a n- a new benchmark study could find that Colorado was subject to...
Speaker: Well, it's conceivable, yes.
Speaker: usual.
Anthony M. Kennedy: evidence that Adarand is working in a context where regulations are changing year to year in order to effect the one th- this one goal, to to to which it it claims there is a subs-
Speaker: substantial doubt in any mind.
Speaker: no evidence in this record that the subcontract clause provisions, which Adarand is now discussing, have been applied ever in Colorado or in those states precluded by the benchmark...
Speaker: study. so...
Antonin Scalia: for not applying them, Mr. Olson? That tha- that's what puzzles me.
Speaker: Well, a- and also they are required by the holdings of this Court to apply and interpret that statute in a constitutional fashion.
Sandra Day O'Connor: Well, Mr. Olson, does are those clauses covered by section eight D four through six?
Speaker: Yes.
Sandra Day O'Connor: And I thought that Mr. Pendley argued that, in fact, in Colorado some of those provisions have been and are, in fact, now in contract forms.
Speaker: They are in the contract forms, but the Depar- the that is again another carryover of instances where they probably should be removed from the contract forms, but they're not being in- implemented or enforced to impose any race-conscious remedy...
Speaker: Well, why wouldn't the why wouldn't the contractor...
Anthony M. Kennedy: have standing to say that I'm contracting, I'm trying to business in a milieu where the Government has, through either prior or existing policies, required contractors to put in clauses that injure me, and I want those clauses removed so that I can do business on a fair basis?
Speaker: Well n- th- the...
Anthony M. Kennedy: standing to say that now.
Speaker: Well, he w- well, in the first place, the three contracts that were mentioned in the reply brief...
Anthony M. Kennedy: Mhm.
Speaker: Adarand was not the high bidder in those three contracts.
Speaker: [Inaudible]
Speaker: I mean the low bidder.
Speaker: Court.
Anthony M. Kennedy: all these years of litigation, he still has to litigate bid by bid.
Speaker: Well, he has got to demonstrate under- as I understand this Court's holdings with respect to standing, he's got to show some immediate impact or the potential for actual harm.
Speaker: Well, all...
Sandra Day O'Connor: of this is new since the Tenth Circuit looked at it...
Speaker: Yes.
Sandra Day O'Connor: What are supposed to do now, please?
Speaker: This case...
Sandra Day O'Connor: are new things the Government is...
Speaker: presenting.
Speaker: no.
Speaker: in rewarding the contract.
Antonin Scalia: contracts.
Speaker: I don't...
Antonin Scalia: think that that's adequate assurance to those to those companies who are competing for for contracts where where the where the prime contractor has signed a commmitment to to get a certain a certain goal of of minority participation.
Speaker: The the Department of Transportation and the Department of Justice have consistently adhered to the provision that those race-conscious provisions will not be enforced in the direct procurement program in these areas.
Speaker: that they ever have.
Antonin Scalia: told the contractors and subcontractors?
Speaker: Yes, they have.
Speaker: And they reaffirmed...
Speaker: Well, this this...
Speaker: memorandum...
Antonin Scalia: Lands Highway Division engineers.
Speaker: Well, Justice Scalia, it strikes me and I I respectfully submit that that you're switching it around.
Speaker: Do you think that for a single minute if...
Anthony M. Kennedy: these clauses required racial discrimination, an absolute clear, patent violation of the Fourteenth Amendment, that we would say there's no standing for a minority who wanted these removed? Not for a single minute.
Speaker: Well, I'm I I wouldn't contradict that, but I would say when the Government has made it absolutely clear that it is not enforcing race-conscious remedies, as instructed by this Court in in the first Adarand decision, except in in a narrowly tailored fashion, there's been subsequent legislation of a compelling need, but that that response to that compelling need has been narrowed down to the areas where it is necessary...
William H. Rehnquist: But the...
Speaker: provision...
William H. Rehnquist: hasn't been removed from the contract.
Speaker: The the provision was not removed in some of those contracts, and I'm I can't tell this Court how many.
Speaker: enforced with respect...
William H. Rehnquist: were being enforced, do you agree that Adarand has standing to c- to challenge it?
Speaker: If they were being enforced and Adarand could suggest that it was somehow affected by that.
Sandra Day O'Connor: They were the high bidder.
Speaker: They were the high bidder and therefore...
Speaker: they didn't get the contract because they were were not the low bidder.
Antonin Scalia: And and you think they're they're they're they're not at risk of that happening in in in other contracts when these provisions still exist in the contract clauses and all we have is is your assurance? if if I were the prime contractor, I'd say, I better not take a chance.
Speaker: told about it.
Speaker: well, Justice Scalia, it has been the demonst- documented, articulated policy of the since the Department of Justice study.
Speaker: contrary.
Antonin Scalia: Let's let's be clear about what programs we're talking about.
Speaker: Well, if you look at the...
Speaker: Government's...
Antonin Scalia: with the contracting clauses.
Speaker: No.
Speaker: in those areas...
William H. Rehnquist: when was that memorandum?
Speaker: That was in nineteen ninety-six.
William H. Rehnquist: Well, but why, if that went out in nineteen ninety-six, was it necessary to have this memorandum in the summer of two thousand one, if that had a- if the earlier one had any effect?
Speaker: Well, it well, the the memorandum in August of of two thousand and one reiterates the policy that the Department of Transportation had been operating...
Speaker: under. It was...
Antonin Scalia: the ninety-six one? I I think it's it's pretty clear to me that the ninety-six one did not cover the contracting requirement.
Speaker: I don't agree with you.
Speaker: I I can't I can't give...
Speaker: you a cite to the record, but the ind- the the i- the the Department of Justice memoranda is in the Government's appendix.
David H. Souter: Is there another reason here why it doesn't apply and that is and I I read this somewhere that Mountain Gravel is itself a small business and for that reason the clause wouldn't apply in any...
Speaker: event?
Speaker: not have applied in nineteen eighty-nine when this case first arose.
Speaker: Well wha- why is it...
Stephen G. Breyer: why is it then that that what they say in the first three pages of their reply brief, for example, is that they have to th- they want to get a sub under a prime, that the Weenomunch Construction Authority got the prime.
Speaker: Well, as I say, they weren't not the low bidder on that contract.
Speaker: All right, but they're saying give you three...
Stephen G. Breyer: examples, you know.
Speaker: Well, all I can say is that the Government has announced its policy, and there's no evidence in the record that it's acted inconsistently with...
Speaker: any application...
Speaker: of race-conscious remedies in the area...
Speaker: in which Adarand...
Stephen G. Breyer: possibly, the appendix C.
Speaker: it out. They say...
Stephen G. Breyer: they're facing these clauses all the time.
Speaker: [Inaudible]
Speaker: important to emphasize that this is a facial challenge to the statute and to the system.
Speaker: Salerno case.
William H. Rehnquist: what what's a what's a facial challenge in in this context? I mean, it seems to me a lot of the questioning here and to a- Adarand's counsel has been to show that Adarand was directly affected by the thing.
Speaker: I I respectfully disagree with respect to whether Adarand was adversely affected by the program.
William H. Rehnquist: Well, they certainly in in the case we first we first decided, the nineteen ninety-five case we decided that they they they were sufficiently affected, so we ruled.
Speaker: Yes, and they were affected by the we're not contending that they did not have standing to challenge that subcontracting...
Speaker: compensation provision.
Sandra Day O'Connor: that financial compensation provision.
Speaker: Yes.
Sandra Day O'Connor: Which now has been found to be...
Speaker: unconstitutional.
Sandra Day O'Connor: And it's out of the picture.
Speaker: That's correct.
Sandra Day O'Connor: But now we have a new set of arguments basically.
Speaker: Yes, and and to the extent that that the th- the the program, as it exists, requires people to in order to be designated as a disadvantaged business enter- enterprise, must file certificates articulating that they have been the victim of a social and economic disadvantage.
Antonin Scalia: What does that mean?
Speaker: Well, it's defined in...
Speaker: the statute.
Antonin Scalia: probably certify to that.
William H. Rehnquist: For yourself?
Antonin Scalia: Yeah, absolutely.
Speaker: It's it's it's explained in the statute both with respect to ethnic and racial prejudice because of their identi- identity as a group without regard to individual qualities, and that economic disadvantage the ability to compete in the free enterprise system has diminished capital and credit opportunities as compared to others in the same business area...
Speaker: one of those...
Antonin Scalia: either social or economic, even though the social would...
Speaker: would would be quite...
Antonin Scalia: irrelevant to whether you can...
Speaker: Both get well, is- that's a social the us- the use of the term in the statute described a victim of of prejudice or bias, and that has had economic effect on the individual.
Speaker: in...
Antonin Scalia: I think the form is attached to the reply brief of the...
Speaker: No.
Antonin Scalia: That is not the right...
Speaker: form?
Speaker: is not the right form.
Antonin Scalia: I I'm just saying if this isn't the right form, what is? We- the The form has not yet...
Speaker: [Inaudible]
Speaker: the the different States use different forms.
Antonin Scalia: But apparently what what the agency proposed proposed on May eighth, two thousand and one simply says, I hereby certify that I am a member of one of the following groups you check the minority group and that I have held myself out as a member of that group.
Speaker: That but that is that is a-
Antonin Scalia: That's what the agency said.
Speaker: Right?
Speaker: but the but the but the but that has to be looked at in terms of the what the statute defines as social and economic disadvantage and what the regulations, which are in in at pages seventy to seventy-two A of the Government's appendix, which define which which are the regulation Department of Transportation regulations.
Speaker: agency...
William H. Rehnquist: one go about rebutting it? I mean, who could rebut it and how would you go...
Speaker: about it?
Speaker: Any adversely affected party can rebut it.
Speaker: In fact...
William H. Rehnquist: w- w- what what...
Speaker: would you have...
William H. Rehnquist: to show to rebut it?
Speaker: Well, what you have to show to be entitled to certification, according to the regulations, is substantial and chronic social disadvantage in the business world and that s- and that credit has been impaired due to diminished capital or opportunities have been impaired due to diminished capital and credit opportunities, as compared to others in the same or similar line of business.
Antonin Scalia: Social disadvantage in the business world.
Speaker: Social and i- social disadvantage, Justice Scalia, is defined in the statute as having been a victim of racial or or or prejudice of that nature, and that ha- it has produced economic disadvantage...
Speaker: You say just...
Stephen G. Breyer: two opposite things on this economic disadvantage.
Antonin Scalia: understand that...
Stephen G. Breyer: You say in your brief that they ha- you have to sign an affidavit that says my ability to compete in the free enterprise system has been impaired due to diminished capital and credit opportunities.
Speaker: Well, I I I believe that we're correct.
Antonin Scalia: That's the right answer.
Speaker: And I hope I said it persuasively.
Speaker: were...
Stephen G. Breyer: your point, to be absolutely explicit, is if you are below the at- the plateau, seven hundred and fifty thousand, you still might not qualify as being economically disadvantaged.
Speaker: That's correct.
William H. Rehnquist: Well you you have but when you get to that, General, you have this list of people.
Speaker: [Inaudible]
Speaker: there's about thirty-some years of study by Congress of disadvantage and discrimination, which this Court recognized in Fullilove and in Croson and in Adarand, that is taking place in the contracting industry.
Speaker: categories...
William H. Rehnquist: The people from Macau were discriminated in the...
Speaker: contor- contracting...
Speaker: of a certain racial background and a certain color...
Speaker: are discriminated against and those...
William H. Rehnquist: this thing just sets it out in great detail by country.
Speaker: Well, I I submit that when you if you were to describe different people of different national backgrounds or racial backgrounds that have been guilty of discrimination, they may fall in any one of those categories.
Antonin Scalia: Well, but they but they aren't.
Speaker: Well first...
Antonin Scalia: against people from Gabon but but not from the next-door country.
Speaker: that's weird.
Speaker: what what the Congress said over and over again, on on the basis of detailed analytical studies which are which are described in considerable detail on the in the court of appeals opinion, and what this Court has said is that there has been the lingering effects, unfortunately, of publicly financed discrimination in the construction industry.
William H. Rehnquist: Thank you, General Olson.
William P. Pendley: Mr. Chief Justice, may it please the Court.
Speaker: Jacksonville...
Antonin Scalia: we know they haven't been implemented? The the Solicitor General tells us they have.
William P. Pendley: I- the the Government the Government concedes, with regard to the State aid program, that that's not at issue in this in this case.
William H. Rehnquist: Thank you, Mr. Pendley.


Earl Warren: Mr. Moody, you may continue.
Ralph Moody: May it please the Court. I -- I think that I will discuss this -- so far as I know, the -- the view point of State of North Carolina has about the case, and it's more, it seems to me, in valuation of the record anyway, I -- conceding that Betts against Brady is still the law. And so, unless the Court -- whoever member of the Court has wishes to ask me a question about the record or anything, I think I'll say anything follows.
Earl Warren: Very well. Mr. Joslin.
William Joslin: Thank you, sir. Mr. Moody stated that there were no instances in the record of admission of incompetent testimony against petitioner in this trial. At page 29 of the record, 28 and 29, the prosecuting witness there is the one of the deputy sheriffs and he's being examined by a solicitor. He's about to quote a statement made by one of the defendants. The Court cautioned him on page 28, cautions the jury not to -- not to consider any testimony given as against any defendant other than David Cain, the one who is supposed to made the statement quoted. Then, over about -- it follows a series of questions and answers. And on page 29, it finally gets around to the damaging part. Question, “Did he name them?” Meaning the defendant David Cain. “No, sir.” “Well, you did later on?” “Yes, sir.” Question, “Who were the other three boys in the car?” Answer, “It was Larry Hudson, Ray Stalling and Rubin Grimsley, which is a juvenile which is now turned over to the juvenile authorities.” “All right.” There was no objection taken at that point and no limiting instruction at that point that the testimony should not be considered as against petitioner, Larry Hudson. And true it was. It did appear, it does appear over on the preceding page but that's a long waste of way in the jury. I think if counsel had been present, there would certainly had been a -- another instruction made to limit it.
Potter Stewart: Now, over on the preceding page, we find that the Mr. McGeachy Cain's lawyer was actually still representing the petitioner and the other codefendant, wasn't he? He said, “I object in behalf of the other boys to any statements by David Cain.”
William Joslin: Yes, sir. He did there -- he did make that objection at that point. And there -- there are instances in here where it says objection by defendants, it isn't clear who made the objection whether it was one of the defendants in person or was the attorney.
Potter Stewart: Such as on the middle of page 29.
William Joslin: Yes, sir. On the next statement whereas he begin to quote another statement --
Potter Stewart: Yes.
William Joslin: -- there. Mr. Grimsley's statement.
Speaker: What about the procedural point? Could a state ground of the (Inaudible)
William Joslin: No, sir. I don't believe that -- that you can -- the -- I know the State argues that in this case, and they -- they cite State against Cruse as a support for that. Now, that was a right to counsel case which came up on a post-conviction hearing. And the -- the Court -- in the North Carolina Supreme Court in the Cruse case stated that you cannot use a post-conviction procedure as substitute for an appeal. They damage general principle. But then, it went into consideration of the merits of the case and it discussed in detail the fact that there was no request made for appointment of counsel at the trial that the case was one which fell within the line of -- of cases cited by this Court, the Betts and Brady. It was a long discussion on the merits of the complaint made. So, as I see it, the North Carolina Court, in the Cruse case very definitely decided that in a post-conviction hearing, the -- an allegation of denial of right to counsel could be heard and determined on the merits. Now, there are one or two other questions that were raised. It -- I did not have the North Carolina law before me at the time. I would like to read one -- one statute in particular. This is the post-conviction procedure. And the -- the statute says if the petitioners without counsel and alleges in the petition that he is without means of any natures sufficient to procure a counsel, he shall state whether or not he wishes counsel to be appointed to represent him. If appointment of counsel is so requested, the Court shall appoint counsel if satisfied that petitioner has no means sufficient to procure counsel. The Court shall fix the compensation to be paid such counsel which when so determine shall be paid by the county in which the conviction occurred.
Potter Stewart: What is that statute?
William Joslin: That is 15-2 --
Hugo L. Black: 15 what?
William Joslin: Section 15-219 of the general statutes of North Carolina.
Charles E. Whittaker: That is not limited then to a constitutional question, isn't it?
William Joslin: The -- the statute -- the -- the hearing provided by -- in this -- in this section is supposed to be on constitutional questions only.
Charles E. Whittaker: Only, is it?
William Joslin: Yes, sir. And there was one other statute that was discussed dealing with a procedure on arraignment and appointment of counsel in a -- now, the -- the North Carolina statute provide for appointment of counsel in capital cases as a matter of right and when the -- if -- provide as follows, “If the judge is satisfied that the accused is unable to employ counsel, he shall appoint counsel to represent the accuse as soon as maybe practicable. He may appoint counsel anytime regardless of whether notified by the clerk and before preliminary examination. In any capital case where the appointment of counsel is delayed until the term of court which the accused is arraigned on motion of counsel for the accused, the case shall be continued until the next ensuing term of criminal court.
Potter Stewart: What's that statute, please tell me?
William Joslin: The library didn't have the general statutes for me. I had to look it up in session laws. I don't know exactly what this is. They just brought me this volume just while I was talking. I do not know the cite here, but the citation in this -- in the session laws is 1949 Session Laws Chapter 112. If there are any other questions, I could answer them if I had to do so.
Earl Warren: Mr. Joslin, on behalf of the Court, I want to thank you for undertaking this assignment to represent this indigent defendant. We're always comforted when lawyers are willing to undertake a public service of that kind, and we appreciate it very much. And Mr. Moody, we appreciate of course your very frank and -- and very earnest method in which you represent your State on this case.
Speaker: Thank you, sir.