Earl Warren: Number 43, N.L. Liner et al., Petitioners, versus Jafco, Incorporated, et al. Mr. Fuston.
S. Del Fuston: My name is Fuston sir, it's a common mistake. Mr. Chief Justice and may it please the Court. This is a labor case involved in preemption that arose in the State of Tennessee. It's a case where peaceful picketing was enjoined by a state court and the Court held that there was no labor dispute and no interstate commerce involved. The separate injunction was made permanent. The case was duly appealed to the Court of Appeals for the Eastern Section of Tennessee. The case, after have been for some time, it was affirmed in the opinion of the Court of Appeals was fortified but then holding that the construction project was completed and the case was moved. We get to the certiorari case to the Supreme Court of Tennessee. The certiorari was denied and within certiorari, the case to this Honorable Court. May it please the Court, the facts that precipitated this had been occurred as follows. The Chattanooga Building Trades is composed of all the craft unions and it is interested all craft unions are in getting all the work possible for its members. They knew back in 1960, that Jafco, was going to build a huge shopping center in the City of Cleveland, Tennessee. It would cover several -- equivalent of several city blocks. It would have many tenants including a bank, bowling alley, chain stores and whatnot. The unions carefully awaited to see who the prime contractor would be and finally, it was announced that the Rea Construction Company would be the prime contractor and they learned that the Rea Construction Company was from Charlotte, North Carolina. As in all this type of cases and in this particular case, the Chattanooga Building Trades then called the Charlotte Building Trades, trying to find out something about this contractor. Usually, they get an answer that a contractor is what they call a fair contractor or employs union man or he employs non-union man or a combination of some kind. And they were informed on this particular occasion, that the Jones family had two corporations. One was called the A.J. Jones Construction Company which was union. They also had a sister corporation called the Rea Construction Company which was strictly nonunion. And in this particular case, they learned that it would be the nonunion corporation that had gotten this particular job and soon after work started, the Chattanooga Building Trades considered putting a picket on the job to every task, the fact that it was nonunion to advertise about their working conditions. But before they did, a business agent for the Hod-Carriers Union with by the construction site and talked to some of the laborers working there. They were in the rough stages at that time, bulldozing and such. The laborers said, "Mr. Elkins, we're only getting a dollar in a half an hour on this job. Can't you please do something for us?" And he said, "Well, I will see what can be done." He then went to the Chattanooga Building Trades, he learned that they had already considered placing a picket on the job and the next day, one picket arrived and again, patrolling the area. But in just a few minutes, after the picketing had begun, the picketing was stopped by an ex parte injunction issued by a State Chancery Court. We duly file a motion to have the case dissolved. One of the defenses was the doctrine of preemption based upon this Court's decision of San Diego versus Garmon and other relevant cases. At the show course here and the judge that had issued an injunction, had another judge to set for him here and this judge refused to resolve the injunction until it final hearing. We had the final hearing and the judge at that time had a lengthy opinion, held that there was no labor dispute by any stretch of imagination. He held that interstate commerce was not involved. He cited absolutely a no authorities, no decisions, nothing. The only decision that is decided -- that is cited in his entire opinion is a case involving intrastate commerce that is not even relevant to the case here. The very next day, we had this case on the road to the Court of Appeals and we filed a motion in that court to move the case up because we were afraid that the construction project would be completed and we would not have an opportunity to have our case determined. The Court of Appeals listened to us and then announced that they would not move the case up on the docket. Later, the case came home for hearing in its regular term and we ordered the case at which then the court wanted to know when the construction project would be over. And both counsel for the defendants and counsel for myself and asked to the court that duty in here, the lace whether one thing or another, it'd be a several weeks before the work would be over. The Court of Appeals then held the case from September until the following January and then adopted the trial court's decision verbatim and also added that the case was moot because the project had just been completed at that time. And, we say if the Court please, that the case is not moot that there was a labor dispute and that interstate commerce was involved. First of all, we think that the -- this Court's decision in the case of -- of Marine Engineers versus the Interlake Steamship Company is controlling as to these terms, as true that the -- this Court's opinion was not available at that time, I think it was two or three months after this decision was written when this Court acted in that case. But I used the precise language as identical in all my pleadings and it was the argument that I had made to each court and that is that the definitions of the terms under National Labor Relations Act should be left to the tribunal that Congress has chosen to administer the Act. And this Court held that in the Interlake case as I understand it, that the -- that the words or labor organizations defined by the Act and the state courts have no right to interpret that. It should go to the N.L.R.B. Since that time and since that -- since I've written my brief, there's been another case by this Court. It's a Local 1207, Bridge Workers versus Perko, decided this summer and the opinioned by his Honor, Mr. Justice Harlan and it follows the Interlake case and says that, "An employee which defined by the Act, should be left to the National Labor Relations Board when a case of reasonable argument is made to that effect." That seems highly illogical to us that you should say that certain words that are defined in the Act should be left to the tribunal that has been chosen to administer the Act and that in this case, to say that other definitions appear in the Act should not be left to the same tribunal, and that would be labor dispute which is defined by the Act and it would also be commerce as defined by the Act. In this particular case, the complaint was that we were picketing to cause a breach of contracts between these Jafco Corporation and Rea Construction Company or the Rea Construction Company and -- and with other companies has been one of the -- that business has been raised time and time again. And in fact that we had a great deal -- great deal of difficulty with that argument until the so-called Landrum-Griffin amendments to the Taft-Hartley laws were paced in 1959. The Court, I'm sure, will recall that Section 8 (b) (4) (1), was left the same but a new Section was added which is 8 (b) (4) (ii). And the (ii) Section says that it's an unfair labor practice in so many words, if you attempt to cause a cessation of business between one person and another is very much more broad than just causing a breach of contract. You can have a situation where two people just deal with each other without a written contract and it could be unfair labor practice. And we say that, even if we take the statements that they say are true in their bill or complaint, that it is a matter they discovered by the unfair labor practice Section of the Act. Of course, we contend that it's protected activity under Section 7 of the Act. And we say if the Court please, that the Interlake case and the Perko cases are authority for the proposition that this issue should be left to the N.L.R.B. We went ahead and actually proved the time of trial -- time came around that Rea Construction Company was involved in interstate commerce and just on this one project alone, that it purchased materials from outside State, mine to at least three times. The jurisdiction or requirements set by the -- by the N.L.R.B. and which was frozen by the Landrum-Griffin Acts of 1959. But the court just ignored it and referred to those facts and referred to no decisions. We beg if the Court please that the big question that we have here today is this question of mootness. It's a question that hovers over every one of these cases where you have a construction project because at sometime, you don't know exactly when a construction project is going to be completed. If the state court takes juris -- jurisdiction which we say is illegal and arbitrary, we -- there is nothing, we're powerless to do anything and we can't do anything except take it up to the state courts. And you usually get best so far as your Court of Appeals in your State, when the project is completed, if you get that fat at all, and that court acts and thereafter, you can't go to your State Supreme Court. It's -- they say, “Well, the construction project is over the question is moot, we will not hear you.” Now, we say that the question is not moot for three reasons. In the very first case that arose under the Act, my law partner Mr. King who was here yesterday and introduced me held before the Board, that case by different rounds went to the Supreme Court of Tennessee where we got a ruling which I have cited in my brief under Watson Versus Wilson, it also went the Board route through the Sixth Circuit to this Honorable Court, for we had decision or other issues. But the facts in that case were briefly this. They had a speculative contractor in Chattanooga who was building houses and the unions, the Chattanooga Building Trades and especially the carpenters decided to put a picket on one of these construction projects. And on the day before the 1947 Act went into effect, picketing stopped and the next day, the prime contractor went to the Board wanting a cease-and-desist order. And based upon those facts, this Court held in the first case that it could have acted on a state of facts similar to what we have here today, that the underlying dispute had not been resolved and therefore, the Board was entitled to the injunction. Now here, we come here several years later and the -- she was on the under court. We think that at this time since the matter is arguably before the Board in the first place and since the underlying dispute has never been resolved, that for that reason, the case is not moot. Another case that somewhat similar to it was a case that we did not have at the time that we order a brief which was decided this summer by this Court is the case of -- Division 1287 Street Electric and Motor Coach Employees versus Missouri and the case was written -- the opinion is written by his Honor, Mr. Justice Stewart. And in that case as we read it, there was an Act by the Governor of Missouri and they had action in the state court and this -- in the state -- the court states that the very threshold meant with the -- with the question of mootness. And because where time that the case got to this Honorable Court, the Governor had removed his authority and taken over the -- the business of public utility in -- in that State. And in the opinion of this Court again stated no less than three months ago, that the case was not moot because the underlying dispute had not been resolved between the parties. And we say for that reason that the case was not moot. For our second reason, we say this, --
Speaker: Why -- why -- could I ask you a question?
S. Del Fuston: Yes.
Speaker: You say the underlying dispute here has not been resolved, what you've claimed?
S. Del Fuston: Yes if the Court pleases. This particular company is making bids on all of the projects in the same area and in their sworn petition to the Supreme Court of Tennessee which we have set out in the record here, the appropriate official of the union stated that he -- that it was -- the desire of his union to picket the same company under the same facts, under the same factual situation, but he would be prevented doing so unless he received relief through the courts or for this reason if the Court please, if the Rea Construction Company gets another project, decided to put on an informational picket, goes before the -- same judge, you can only expect the same decision, get to the Court of Appeals, the project is completed and you got the same thing over and over again.
Speaker: That would be another case, wasn't it?
S. Del Fuston: It would be or another -- on another project just as it would be in case number one if the Court please, in the Watson case or the Carpenters case as it's down here at Local 74 versus Carpenters which I've cited in my brief because this man was a speculative builder, building houses. And when he complete at the house or the house was completed, he had to go somewhere other -- lot to build a house but this Court said that, “You still have the same dispute that existed.”
Speaker: Would be -- am I right to think that this particular injunction is not breached by the similar (Inaudible) on certain projects?
S. Del Fuston: That is the question that I -- I don't know the answer to. It probably -- probably wouldn't but you could expect the same result.
Speaker: And the injunction is in the record?
S. Del Fuston: Yes, it is. I do know this but I thought it was so broad at that time that this construction was going over -- going on, that the carpenters had a dispute with the -- runs with people out of some state in regard to the bowling alleys and I feel at that time that the injunction was so far reaching that they could not place a picket on the job.
Hugo L. Black: Was there any injunction bond given?
S. Del Fuston: Yes, if the Court please, and we think that's -- another reason we think that the case is not moot and there's been considerable court cost in this case that -- that it will have to be borne by the losing party. There are attorney's fees and other things of that nature involved and we think for that reason, that the case is not moot.
Hugo L. Black: Is there a cause of action in your State by malicious issues of injunctions, obtaining malicious issues of injunction?
S. Del Fuston: Yes, if the Court please and there's a dispute of authority as to what your action is in case the court issued an injunction where you do not have jurisdiction of the subject matter. There's no reason -- case since -- I think after 1900 on that proposition. The whole cases are very much in dispute only.
William J. Brennan, Jr.: Mr. Fuston, may I get back a moment?
S. Del Fuston: Yes.
William J. Brennan, Jr.: In first ground, I gather and which were relying on -- in Watson is that language would be used in such pressure and this project was merely a sample of what might be repeated elsewhere if not prohibited, the underlying dispute between petitioners and Watson's has not been shown of any result.
S. Del Fuston: Yes.
William J. Brennan, Jr.: My question is, did you make on -- any kind of record that -- would indicate this with only a sample?
S. Del Fuston: The record if the Court please, is only in our sworn petition because at the -- at the time that the case was decided, the case was not moved actually -- and did -- actually, there were some painting and -- and more -- more things going on at this building project and lasted about a week. But we do that -- that time we got a petition back to the Court, it wouldn't be completed. So in our sworn petition to the Supreme Court which is for this record, oath was made that -- that the same thing would occur all over again and it was our desire to picket the same company under same -- under similar circumstances in the future.
William J. Brennan, Jr.: Was this injunction originally ex parte?
S. Del Fuston: Yes it was.
William J. Brennan, Jr.: An affidavit's ex parte?
S. Del Fuston: Yes and it amazes me how quick they've got that out. It must have been prepared in offense because the attorneys for the plaintiff live in Chattanooga, the courthouses in another county some 30 miles away, the judge lives, we have the Circuit in another county and I think that picket stayed out there about 10 minutes. Somehow the -- the --
William J. Brennan, Jr.: You mean (Voice Overlap) --
S. Del Fuston: When it got to the hands of the -- of the Judge. It was signed, it was in the clerk's officers -- offices and the -- sheriff was out there within 15 minutes after the picket got there.
William J. Brennan, Jr.: Do you mean they had some foreknowledge that this might be as --
S. Del Fuston: I assume that he did.
Byron R. White: Well, was a great construction company or that -- that's -- that's really the concern that you were picketing?
S. Del Fuston: That is really the concern we were picketing.
Byron R. White: Is that a local (Voice Overlap) --
S. Del Fuston: No, that's from Charlotte, North Carolina. It has branch offices in Orlando. It's a big construction company.
Byron R. White: Was it -- it's just been here -- in here for one job and --
S. Del Fuston: It was in for this one job of this particular time. I know -- do know they were bitting on a railroad job whether they got in that, I don't recall.
Byron R. White: Was it ever been there before?
S. Del Fuston: All I know is that at the time they were bidding those some -- other jobs -- jobs in that area.
Byron R. White: But the record just -- (Inaudible) whether this might or not might occur again with great construction in -- where is this place in Chattanooga?
S. Del Fuston: In Chattanooga and within an area of -- 100 miles around Chattanooga.
Byron R. White: But did the record, you may know that was in the Supreme Court?
S. Del Fuston: I beg your pardon.
Byron R. White: The record you may know, it was in the appellate court.
S. Del Fuston: Yes, it was. The -- as far as the desire to picket this company in the future.
William J. Brennan, Jr.: Is that on -- that's in the record is it Mr. Fuston?
S. Del Fuston: It is in the -- in the record and --
Byron R. White: Where is that?
S. Del Fuston: I'll try to find it when opposing counsel is -- I will take I guess a little time -- I guess -- I'll believe, I'll be able to do it just two or three minutes so. We think for another reason --
Hugo L. Black: Is the record here?
S. Del Fuston: Sir.
Hugo L. Black: Is the bond here?
S. Del Fuston: I forgot Your Honor. I'll be glad to check that out too. I know that it's your --
Hugo L. Black: But the entire record setup here besides that which you think --
S. Del Fuston: Yes, the entire record is here. Besides --
Hugo L. Black: It's here on file.
S. Del Fuston: Yes, yes, Your Honor.
Speaker: As your research most in the case of this Court, (Inaudible)
S. Del Fuston: No, I haven't. The only case I did make inquiry of some other attorneys throughout the country, I thought that might have had such a case here and the nearest case that I had on this mootness question was the one presented by Dave Privett on Milwaukee in the County of Door case which I have also said in my brief. And I think it's under Mr. Justice Frankfurter raised the question in that particular case from what Mr. Friedman tells me and the question was raised but there's nothing in the decision of this Court concerning the mootness?
Speaker: (Inaudible)
S. Del Fuston: I beg your pardon.
Speaker: (Inaudible)
S. Del Fuston: It's -- it's set forth in my table of cases --
Speaker: -- right after.
S. Del Fuston: -- County of Door -- it's 350 -- 9 U.S. 15, I'm sorry Your Honor it's a wrong turn there. Now, there's another that we have in this case that has not been presented as --
Arthur J. Goldberg: (Inaudible)
S. Del Fuston: Yes.
Arthur J. Goldberg: (Inaudible)
S. Del Fuston: Yes.
Arthur J. Goldberg: (Inaudible)
S. Del Fuston: We'd have to sue on that one?
Arthur J. Goldberg: (Inaudible)
S. Del Fuston: It's my understanding Your Honor.
Arthur J. Goldberg: (Inaudible)
S. Del Fuston: But we are going to make that claim. That is another question that hasn't been determined in years in our -- in our State.
Arthur J. Goldberg: (Inaudible)
S. Del Fuston: Yes. It is in -- in the record. Now, there's another -- a reason if the Court please that we think that -- that the case has not moot and that is in the State of Tennessee, we have a declaratory judgment statute. That clearly, a higher court has the right to review any question and give her advisory opinion. Now, if the Court of Appeals for the Eastern Section had said the case is moot, we refuse to consider it any further, that would have been one day. But the Court of Appeals said the case is moot but in spite of it being moot, we hold that this picketing was illegal and they made some more statements about it and then they stated that they adopted the decision of the trial court. Now, if the Court of Appeals has a right to give an advisory opinion and certainly, it seems to us that a higher court has the privilege to redo that advisory opinion as to ascertain whether or not they gave the correct advisory opinion and we say for that reason, if the Court please, that the case is not moot. In short, the Court please, we feel that this as a case as very similar to all these picketing cases that we have involved in construction projects. We have this -- this question of mootness always hovering over and because we can't get them up fast enough. For example, in about three weeks I think that you'll have the -- keep your birthday of Garner versus Teamsters as I recall, it was about the middle of December 1953 when this Court rendered the opinion on rather famous case now. I know I was in Charlotte, North Carolina on that occasion or in the -- the same kind of case before the Superior Court in Charlotte, North Carolina. And if you will look on the date that the -- that the Garner versus Teamsters case came out, you'll find that it made the headlines in the Charlotte Observer. And I was eating my lunch and I had the case argued about this time of the day and I was arguing the case of preemption to the -- to the Superior Court there where they were building the airport and argued it with the newspaper in my hand. The opinion I got from the Charlotte paper was very short but I was familiar with the decision of the Supreme Court of Pennsylvania and it stated in the article that -- that that court had been affirmed and I was arguing that was the -- that was, I had that case and -- a case of Oliver versus (Inaudible) of Tennessee. I think that Tennessee Supreme Court actually was the first state court from my research that written as a doctrine of preemption. And with those two cases and with the newspaper clipping that I had, I was arguing preemption to that court down there. As soon as I got to of to the argument, I felt pretty good. I wanted to stand up and get the decision of this Court, have it flown back in for the -- for the trial judge the next day. And if you'll read the next issue of the Charlotte Observer, you will see that this judge granted the injunction with the remarks, "Mr. Fuston, I going to grant the injunction in this case and you can take me to the Supreme Court and reverse me." But in the meantime, our airport will be built. And he was absolutely right because at all of these cases, you have this question of whether or not you can get a case up to a higher court before the project is completed. Now, we say if the Court please, that on a basis of the decision of this Court since the Garner case that this is a case in which the opinion of the Court of Appeals of the Eastern Section of Tennessee should be reversed. Thank you.
Earl Warren: Mr. Chambliss.
John A. Chambliss, Jr.: May it please the Court. Before I begin to talk, I would like to say something. This is indeed a small world. This is the first time I've had occasion to come before this Court and one of the cases this morning came from the Court of Claims on which my Uncle Sam Whittaker has become a fixture and it was very interesting and difficult case. The other one came from Louisiana where my wife was born, where I visit frequently. And I couldn't but think as I listen to that case on the fact that although I'm not a Chinese, I have a Chinese godson in Hong Kong and should he wish to run from office in Louisiana, I would hate to think that he would have to designate himself as a Mongoloid. Now, with those remarks back, I mean, I will turn to discussion of the case at bar. The most delicious part of having a case before this Court is that as my friend and hero, Mr. Justice Vanderbilt once said, "This Court is of necessity more interested in what the law ought to be than in what the law is, not own any purely ad hoc basis but on the basis of our scheme of ordered liberty." Now, law is of course a substitute for warfare. It is the modern equivalent of war, we hope. And you are of course interested in the rights of people and we remember it all the times that one's rights end where one's wrongs begin. This Court has very difficult cases to hear and to decide. In this matter of peaceful picketing for example, it was first held by this Court that peaceful picketing was tantamount to free speech and then it was later recognized that that was not true, that peaceful picketing is more than free speech. Now, the case we have here today does not involve a claim of the right of picketing on the ground of free speech. It involves rather only the issue of preemption. That is the only thing involved here and it's based upon such cases as the San Diego Building Trades Council case, the Engineers Association case and the current case from Atlanta which is very close to kin to the case at bar, but is quite distinguishable. All of these cases held, that a situation that is arguably one for the National Labor Relations Board must be handled by the National Labor Relations Board. Now, it's true that the Engineers Association case went a bit further than that, by saying that it must be reasonably arguable. Now in this case, we think that it is not reasonably arguable. One of the facts in this case, Jafco wished to build a $2 million shopping center in Cleveland, Tennessee. They made a contract with Rea Construction Company of North Carolina to do the job and this is a company that operates on an open shop basis. It is not nonunion, it is not union, it is on open shop basis, this appears in the record. Rea Construction Company in turn, contracted with the (Inaudible) to do the grading on the job and they went out there with this heavy earth moving equipment to do the grading on the job. A picket was placed, one single peaceful picket, bearing a sign in which it is stated, on which it was stated, "Rea Construction Company not under contract with Chattanooga Building Trades Council, Rea Construction Company not under contract with Chattanooga Building Trades Council.” Now, that picket was not removed in a manner of minutes. As a matter of fact, after the picket got there, my associate counsel in Cleveland called me, came down to Chattanooga and as I recall it, it was not until a day later that we were able to get the bills on and go the Chancellor. We went to the Chancellor because we felt on the basis of what we could see with our eyes and incidentally after that picket was placed immediately, all of these union heavy equipment people walked off the job. The Lewis Brothers people left because they were afraid not to. They were afraid of reprisal and the whole job was shutdown. The job had a deadline, it had a time limit and the whole thing was shutdown completely. We filed this bill in Chancery and in Tennessee, we still have separate Courts of Chancery and law and we sought an injunction because we say that the picketing was seeking a breach of a contract that existed between other people. And there, you see statute in Tennessee that provides that that is unlawful and provides treble damages therefore. We also said that this picketing sought to effect a violation of the Tennessee right-to-work law, such as was insisted in the Curry case, because in Tennessee it is illegal to distinguish between union and nonunion employees. We also ask damages for what we regarded as the illegal picketing. And in the course of our bill, we charged in paragraph 7 that there was no labor dispute in existence between the plaintiffs and the defendants
William J. Brennan, Jr.: May I ask what happened to the damages (Inaudible)?
John A. Chambliss, Jr.: That has never been determined Your Honor, because they --
William J. Brennan, Jr.: They still open --
John A. Chambliss, Jr.: Yes sir, that is still open.
William J. Brennan, Jr.: In this very litigation?
John A. Chambliss, Jr.: Yes sir, that is still open. We were -- the Court of Appeals may it please the Court, stated that we would be entitled to damages because they said it was malicious under all the circumstances and facts to the case.
William J. Brennan, Jr.: Well then do I understand that if you prevail here, you may now go back and tryout request for damages?
John A. Chambliss, Jr.: Yes, Your Honor. That's my mistake.
William J. Brennan, Jr.: What -- what have you move this argument?
John A. Chambliss, Jr.: I don't know that there is anything. I would not insist in the mootness Your Honor.
William J. Brennan, Jr.: You would not?
John A. Chambliss, Jr.: No, sir. Now, the answer in this case, the answer in this case did not -- did not reply at all to this question of whether there was a labor dispute. In our Chancery procedure down there, we state our points paragraph-by-paragraph and they're answered paragraph-by-paragraph. In the answer in this case, they completely ignored the charge that there was no labor dispute. They just did not answer that at all. They did deny in their answer that they were seeking to affect a breach of a contract. They said, “We're not interested in affecting a breach of contract. They did deny that they were seeking to have union people hired. They said, “We're not seeking to have union people hired there.” They asserted and this is on page 14 of the transcript. They asserted this, "These defendants which show to the court that the purpose of the picketing is to inform members of organized labor in Cleveland and vicinity, sympathizers of the labor movement and the public in general, that the complainant's project is not under contract with appropriate bargaining labor organizations. The effect that is sought is that persons who hire contractors hereafter.” I remind -- I remind you, this is their sworn answer. This is all they were seeking. The effect that is sought is that persons who hire contractors, hereafter, will know which are union contractors and which are not. If those people desire to hire such contractors as complainants, they're so informed. Now, that was their answer. We then took the discovery deposition of the leader of the defendant group because we wanted to pin down just what the purpose of this picketing was and so we took the discovery deposition of one C Earl Williams. He is the same person who had sworn to this answer. And the reason we wanted to pin him down was this, my opponent -- and I have been going around and around in this field for some years, we're a little bit like Tony Canzoneri and Barney Ross use to be. And he adverted to the Watson case which was my case and to the Carpenters case which came up here and that was my case and we had another case down there a few years ago, in which again at Cleveland, Tennessee, a picket was placed which forced the breach of a contract between a nonunion contractor whom I represented and the people who're having the job done, and the job was taken from my man and was given to a union contractor and my man then brought suit and we tried the case, and my man collected treble damages for they're having done this to him. And they were very anxious to avoid getting themselves in the position of again being liable for treble damages, and so they made it very play in their answer and then their sworn testimony, that they were not seeking a contract. In fact they said, “We're not seeking anything. We don't want anything. We have no dispute with these people.” And that is the literal language of the chief defendant here. We have no dispute with these people, we don't want anything, we don't want a contract, we don't want to bargain with them about wages, hours, and working conditions, we don't want anything. Now, when I took his deposition on page 54 and 58, 59 and 60 of the record, I asked him this, I said, “Did you have any interest in whether Jafco had a contract use union labor our interest was that?” “Yes, sir.” Question - “Did you do anything about it?” “No sir.” “Did you take any action at all with reference to Jafco and his job up here that was being done?” Answer - “I don't know what you mean find the action. Do you mean that I came and talked to Jafco?” Question - “Did you come or anyone else from the labor organization come that you know of?” Answer - “I don't know, I didn't come and talk to any body.” Question - “Do you know of anyone else who did?” Answer - “I don't know. No, sir.” Then again, he -- he said that he was unhappy because they were paying a certain rate and I said to him, “Did you say on your picket sign or did you do anything about advertising the rates they were paying?” No. I said, “Your only sign there now was that they're not under contract, you said yes. And that they were interested in -- if advertising to people that we hooked on future contracts, similar jobs that it would have an effect.” Now, he -- he, therefore, skirting around the question of seeking anything which of course was involved in the Curry case directly, I mean, they were seeking something. They frankly admitted that they have a labor dispute. The union had gone to see the employer and they -- they have a labor dispute there. But in this instance, there wasn't any that -- of that. Now, after this discovery deposition was taken and before the trial, opposing counsel, on behalf the union, wrote to the National Labor Relations Board and asked if they would take jurisdiction of the case like that, and the Board replied that they didn't know whether they would allow it. Now on the basis of all of this, our Tennessee courts then proceeded to hold that first, there was no labor dispute. Second, that the picketing was an unwarranted interference since the picketing people sought no gain from the thing at all, as far as these people were concerned, that it was unwarranted interference. And then the Court of Appeals also held that the case had become moot.
Arthur J. Goldberg: (Inaudible)
John A. Chambliss, Jr.: Yes sir --
Arthur J. Goldberg: (Inaudible)
John A. Chambliss, Jr.: Yes, Your Honor --
Arthur J. Goldberg: (Inaudible)
John A. Chambliss, Jr.: Yes, sir.
Arthur J. Goldberg: (Inaudible)
John A. Chambliss, Jr.: Yes sir.
Arthur J. Goldberg: (Inaudible)
John A. Chambliss, Jr.: Your Honor please, the Court of Appeals and its opinion went beyond there. This is on page 98 and it says this, "Defendants say that when they placed this picket on the line, it was merely to education. We cannot accept that explanation which does not explain. They knew that when this picket was placed at this entrance to the work that it would result in union employees refusing to cross the line and this is exactly what happen thus causing a complete work stoppage." In short, we find that the action of the defendants was frightful and malicious and in an attempt to injure both Jafco Incorporated and Rea Construction Company. What has been said requires the affirmance of the decree below with cost against the appellants and surety on appeal bond. Your Honor please, they do not specifically say that we could collect damages. I thought that they did, but there's no language in their and I think that perhaps we could not under those circumstances.
Arthur J. Goldberg: (Inaudible)
John A. Chambliss, Jr.: I -- I think that Your Honor is probably correct. I've been under the impression that the language of the Court of Appeals said that it would be remanded for the question of damages, but they did it. Now, I would like to distinguish just very briefly, this -- this Curry opinion which Mr. Justice White handed down last January. In that case, the unions involved visited the respondents. In other words, they went to see them. They talked to them about the situation. According to the respondents, the union urged the hiring of union personnel. Now, according to the union that was not so. They say that they requested them to raise the pay scale. But in any event, there was a communication. There was a demand any refusal so to speak and there was a labor dispute. Now then, the lower court of course denied an injunction on the ground of preemption as it turned down ultimately properly so. The Georgia Supreme Court reversed and then this Court held that there was an arguable case there of jurisdiction for the National Labor Relations Board, a reasonably arguable case. Now, what is a labor dispute? In our brief which is extremely brief, on page 2, I quote the Act itself. And this is what the Act says is a labor dispute and we say it does not fit the situation, "Any controversy concerning terms, tenure or conditions of employment or concerning the association or representation of persons in negotiating, fixing, maintaining changing or seeking to arrange terms or conditions of employment, regardless of whether the dispute in stand in approximate relationship of employer and employee." Now, we say that, that just doesn't fit here. They were not interested, there was no controversy, you don't controvert with someone that you have no contact with. You make no demands upon. There's no controversy there. And we say that there is no labor dispute there. Now, had they chosen to stand, may it please the Court, on what their picket sign said, Rea Construction Company, not under contract with Chattanooga Building Trades Council?” Then, it would have been a picketing for representation for a union contract and that obviously, would have made an arguable case from the National Labor Relations Board. But did they do that? No. They refuted that in their sworn answer and in their sworn testimony. They said that's not really what we mean. That's not what we're after. We're not interested in representing, we're not interested in discussing wages, hours or working conditions or anything like that. And so, they swore in their answer and in their testimony that they did not seek any of these things and we say when they get back, that they cut themselves off from this business of preemption. It seems to us that it is not fair or legally sound for them to say, we seek nothing from this employer and we have no desire to hurt him. Therefore, he can't sue us in the state court. And yet, because we may really be some -- seeking something from him and we may really be seeking to damage him after all, this is a matter for the National Labor Relations Board. They are in effect seeking to get themselves into a vacuum. But the trouble is in their testimony, they blow hot and cold and the law doesn't like a vacuum. And when you blow away, you do away with the vacuum anyway. There is no vacuum left because there's atmosphere there and there's a great deal of atmosphere in this case. We think that this case should be distinguished and affirmed.
Earl Warren: I notice in your reply brief that you rely heavily on the fact that this -- this case has been mooted for approximately a year and a half?
John A. Chambliss, Jr.: Yes, sir. And it had not occurred to me until the argument today when I was asked the question about damage that that proposition might still be in it, and I remembered that we did asked for damage and that possibly that would keep from being moot. That had not occurred to me when I wrote the brief.
Earl Warren: Well, you're very clear on your mind now, although this case is not moot.
John A. Chambliss, Jr.: I would say Your Honor in the light of what's been brought to my attention by Mr. Justice Goldberg that it is moot because there is law, no longer any question of damaging. The final decree of the lower court, the final decree of the Court of Appeals does not give any reference for damages and since they do not, I think, I'm cut off from that and I think the case is with --
Hugo L. Black: But they're -- they are not are they?
John A. Chambliss, Jr.: Sir?
Hugo L. Black: They are not cut off, are they?
John A. Chambliss, Jr.: I don't know Your Honor.
Hugo L. Black: Well, you have bond?
John A. Chambliss, Jr.: Oh, on -- on the question of bond, the question was raised about that. And on the matter of a bond, if a bond is wrongly issued, the court can give a reference to a master on the question of the wrongfully suing out of an injunction, in other words, if it is without cause, if it was you know, malicious or anything like that, that can be a reference to a master.
Hugo L. Black: Something like a --
John A. Chambliss, Jr.: Sir?
Arthur J. Goldberg: How can a judgment reversed --
John A. Chambliss, Jr.: Well, it's a question of -- it's a question almost of -- of the intent at the time the thing is done, the good faith you might say in -- in seeking the injunction.
Arthur J. Goldberg: What's the matter (Inaudible)?
John A. Chambliss, Jr.: That would be up to the judge may it please the Court, to the Chancellor as I understand it and he would order a reference. As a matter of fact, I have a reference down home right now in connection with the patent case where an injunction was sued out and the injunction was later dissolved and there's -- yes.
Arthur J. Goldberg: (Inaudible)
John A. Chambliss, Jr.: That's right, yes.
William J. Brennan, Jr.: Well, do you -- I'm not quite clear about this bond. If this case should be reversed, is there a bond outstanding on which the petitioner her might seek recovery --
John A. Chambliss, Jr.: Your Honor --
William J. Brennan, Jr.: I mean --
John A. Chambliss, Jr.: -- please, there is an injunction bond --
William J. Brennan, Jr.: I mean this --
John A. Chambliss, Jr.: The exact terms of that bond, I do not recall.
William J. Brennan, Jr.: Well, I gather, your client had to post it for the --
John A. Chambliss, Jr.: Yes, Your Honor.
William J. Brennan, Jr.: So that if in consequence to the issuance of the injunction, this is on a hypothetical --
John A. Chambliss, Jr.: Yes, sir.
William J. Brennan, Jr.: -- without suggesting of course, one way the other what the --
John A. Chambliss, Jr.: Sure.
William J. Brennan, Jr.: -- result will be. Well, let's say, should be a reversal here. I think that might be the predicate for an action against your client on the bond?
John A. Chambliss, Jr.: It's my understanding that it could be. Now, as to the legality of it of the ultimate outcome of it, I don't know, but I --
William J. Brennan, Jr.: Well, my question then is if that's the fact, how could this case possibly be moot?
John A. Chambliss, Jr.: Your Honor pleases, as I said sometime ago, the question of whether it is moot or not doesn't really make a great deal of difference to it.
Hugo L. Black: May I call your attention to that fact that this Court held some years ago that District Court failed to consider and assess damages at the injunction that's been issued wrongfully, with guilty with abusive use of the discretion to the (Inaudible), so that there is still the question of damage here.
John A. Chambliss, Jr.: Yes, yes. I think that -- I think it is a matter of discretion. Of course, if they abuse the discretion, that's another matter.
Speaker: (Inaudible)
John A. Chambliss, Jr.: Your Honor, that -- that is correct now, I think that my fellow -- my counsel here on the other side, there's our Court of Appeals great injustice and insinuating that they held this case and sat on this case deliberately until his job was over. I -- I don't go along with that at all. I think that there is a great deal of merit and a court's taking the position that in a situation like this, wherein -- in effect, no damage is being done to these people except their denial of the right of free speech and they're not even suing for their right of free of speech. I don't see how there could be any -- any -- any damage actually. They don't predicate this on free speech. And I -- I feel that the case is over and the -- but -- but however Your Honor's feel about -- I mean after all that -- that's up to you as to whether there's moot there's not.
Hugo L. Black: What would be damage on the bond irrespective of free speech (Voice Overlap) --
John A. Chambliss, Jr.: Only Your Honor, if we were guilty of bad faith as I --
Hugo L. Black: If it was wrongfully issued.
John A. Chambliss, Jr.: Yes, sir, if it was -- if it was wrongfully issued and -- and the matter of good faith enters into that. You see on the basis of their picketing, we had every reason to believe that they were picketing to secure to breach of a contract because that's where their picket sign said. Now, they come into court they say that's not what we're after. Thank you.
Earl Warren: Very well.
S. Del Fuston: Unfortunately, I wasn't able to find the page in the credit record up to where the State was made that we desired to picket the same company in the future. I do know it was made on page 15 of my brief before this Court. I made the statement it is the desire the petitioners to picket the respondents of the future of the same omission --
William J. Brennan, Jr.: Well, Mr. Fuston, may I -- I've look that it was since I asked you the question. I don't find anything but that one affidavit which precedes the opinion of the -- of the Court of Appeals. But I noticed it's quoted it. I gathered from your brief on page 97 something in which you suggested in your brief in the Court of Appeals, the intention or desire to picket one of the complainants Rea is coming for on a project which will require approximately six or eight months of (Voice Overlap) --
S. Del Fuston: That is it and Mr. Raymond Floyd made oath to that, I remember that.
William J. Brennan, Jr.: And the court went on to say that they weren't in the business of rendering advisory opinions and therefore, what was going to happen in the future was is no concern of the Court of Appeals.
S. Del Fuston: That is --
William J. Brennan, Jr.: Is that what you have reference?
S. Del Fuston: That's what I have reference to Your Honor. I believe I haven't my argument unless the Court desires to ask some further questions.
Earl Warren: Very well.


Warren E. Burger: Next we will hear argument in Immigration and Naturalization Service versus Chadha. Mr. Gressman, I think you may proceed when you are ready.
Eugene Gressman: Mr. Chief Justice and may it please the Court: I speak again on this reargument on behalf of the House of Representatives. This time I proceed directly to the two critical arguments or contentions of those who seek invalidation of Section 244(c)(2) of the Immigration and Nationality Act. Those two arguments are: One, that the legislative review device in that section collides with the presentment clauses of Article I, Section 7. The second contention is that the use of this device violates the general separation of powers doctrine. These arguments must be examined in light of House Resolution 926, an Act adopted in 1975 by which Section 244(c)(2) has been implemented in this case. That examination, I suggest, will show that these two critical contentions in the context of this case are illusory and misplaced, and that the faults in these arguments are so pervasive as to implicate Article III justiciability problems. Now, turning to the first argument, the presentment clause argument, one finds that that argument is undermined and indeed destroyed by the negative nature of House Resolution 926.
Speaker: Where do we find the text of that resolution, Mr. Gressman?
Eugene Gressman: The resolution is incorporated, I think, at page 69A of the appendix to the Government's jurisdictional statement. It reads in whole: "That the House of Representatives does not... does not approve the granting of permanent residence in the United States to certain named aliens. " including Mr. Chadha. That is the total text of House Resolution 926. Now, on its face as well as in its legal effect it contains a number of significant negative propositions. Let me count the ways in which it is negative: One, it does not order the deportation of Mr. Chadha. Mr. Chadha came into this Section 244 proceeding conceding that he is deportable because he had earlier violated the statute which... by overstaying his student visa by which he entered this country, and under the statute that overstaying of a visa renders him deportable. That is not an issue and never has been in this case. Two, House Resolution 926 does not alter Mr. Chadha's legal status quo, which is one of deportability. It has no effect on it. Three, it does not adjust Mr. Chadha's status to that of a permanent resident alien, which is what he requested. Three... or four, this resolution does not alter or affect any of Mr. Chadha's personal or individual rights. It is long established that an alien, a deportable alien who applies for this kind of relief comes to that proceeding with no rights. It is a... as we pointed out last argument, this is essentially a plea for mercy, a plea for grace on the part of the alien who seeks to get his status changed by dispensation.
Speaker: Is it not true that had the resolution not passed all four of the consequences you've described would have taken place?
Eugene Gressman: That is true, but that is not this case. This is a negative. This is a legislative no to all of these consequences that might well ensue. That would be a different case, Your Honor. If either house had disapproved this application, then certain things would have ensued. Then we would have had, presumably, some kind of alteration in the legal status quo. But the critical point here is that by saying no, none of those consequences occurred and there is no change in the legal status quo. To put it differently, there is certainly no kind of enactment of positive law which results from the House action saying no. Now, it is significant, I think, that the opponents of this legislative review device, as well as the court below, have been unable to identify any kind of positive law change that occurred as a result of the adoption of House Resolution 926, and that a determination of a positive law change, an identification of it is absolutely essential to the presentment clause argument. And I think they have utterly failed to demonstrate that there is any positive law change here. You simply cannot change a legislative no into a legislative yes. Now, this goes straight to what Justice White was speaking about in his opinion in Buckley against Valeo, where he said that the power of either house to vote to disapprove is not the equivalent of legislation or to an order, resolution or vote within the meaning of Article I, Section 7, which requires the concurrence of both houses. Nor does a one-house no require any kind of presentment to the President. This is non-legislation. This is what happens every day across the street when a house votes down a proposal made by one of its members.
Speaker: Well, if it's non-legislation I suppose you would have to say it happens across the street 365 days a year--
Eugene Gressman: That's right.
Speaker: --whether Congress is in session or not.
Eugene Gressman: That's right. This no is the equivalent of non-legislation, and it cannot bring into operation the presentment clauses.
Speaker: What is the consequence of 926 on the action of the Service and of the Attorney General?
Eugene Gressman: Well, the statute provides, not House Resolution, but the statute provides that upon the disapproval by one house the Attorney General is directed by statute to execute the lawful order of deportation.
Speaker: Then I'm confused about your statements which I thought I heard that this didn't alter Chadha's rights.
Eugene Gressman: That is true, Your Honor.
Speaker: You mean he had no rights in the first place?
Eugene Gressman: He had no rights to get this, an affirmative vote granting him status as a permanent resident.
Speaker: Well, did he have a right to have the Attorney General grant the dispensation?
Eugene Gressman: No. That... Jay versus Boyd clearly demonstrated that he comes into the application at the initial stage before the Attorney General having absolutely no rights to get a favorable determination. It's purely discretionary on the part of the Attorney General, as well as discretionary on the part of the Congress or either house when it considers that. So it can be... it's a privilege at the most, not a right that he seeks.
Speaker: Mr. Gressman, if the bill... instead of having the resolution having been agreed to, supposing the majority had voted down the resolution. Would that have been an act of legislation or non-legislation?
Eugene Gressman: If they had agreed to--
Speaker: If this resolution had been submitted but it had failed, and the vote and the action in not passing the resolution, in your view would that have been legislation or non-legislation?
Eugene Gressman: --And the other house had not disapproved as well?
Speaker: No, they just never submitted it to the other house. It just was this particular bill had failed.
Eugene Gressman: Well--
Speaker: That would have resulted in a change of status, would it not?
Eugene Gressman: --Under the statute you get a change of status only if both... neither house disapproved.
Speaker: Well, there's no action presented to the Senate.
Eugene Gressman: Right.
Speaker: And the only thing that is presented is a House resolution is presented and it fails. Now, does the vote on that result in legislation or non-legislation?
Eugene Gressman: I don't think that is... that's incomplete legislation.
Speaker: Well, it would have resulted in a change of status, though, wouldn't it, assuming no action in the Senate?
Eugene Gressman: Well, no action in the Senate, yes, then it would have achieved that, certain consequences which would change his status and permit him to remain in this country.
Speaker: And my question is--
Eugene Gressman: If either house disapproved or took any action--
Speaker: --would that have been legislation or non-legislation?
Eugene Gressman: --That is a form of legislation. Now, that is not this case. That is the critical point.
Speaker: So it depends on whether the resolution carries or not--
Eugene Gressman: Of course.
Speaker: --as to what the character of it is?
Eugene Gressman: That is true. That's true with any bill that's proposed over there. If it fails, that's the end of it as far as legislative change of legal status quo is concerned. Now, the other critical point I want to mention is that House Resolution 926 has three characteristics which reflect a unique sovereign power vested exclusively in the Congress and therefore there can be and is no violation of the separation of powers doctrine. First, this Court has repeatedly held, and as recently as three weeks ago in Landon against Placencia, that the power to admit or exclude aliens is a sovereign prerogative that implicates many of our problems with foreign countries and involves consideration of our political and economic circumstances at the time. And virtually all of that sovereign power is vested in the Congress, and Congress has in effect created a kind of a public right or a public privilege here which it can dispense in accordance with what it sees most desirable. The second point is that House Resolution 926 is essentially a negative answer to a political question. Ever since the Fong Yue Ting decision in 1893, this Court has repeatedly said that the exercise of this power over aliens, this sovereign power, involves answering political questions, in the best sense of that term. And this Court has frequently referred to the purely political nature of the legislative power over aliens. So that when Congress was saying no or when the House was saying no, it was saying... giving a negative answer to a political question. Finally, House Resolution 926 is saying no within the traditional area of legislative discretion, discretion that is built into 244(c)(2), and is inherent discretion in a legislative body to say no. So we suggest that a combination of these circumstances will, an understanding of what these arguments entail, suggests that both the presentment clause argument and the separation of powers doctrine simply do not apply under the circumstances of this particular case and this particular statute.
Speaker: Let me ask you a question, without charging your colleague for the time, Mr. Gressman. You are familiar with the statutory provision in which the Congress has delegated to the district courts the trial of cases for contempt of Congress. Suppose one of those cases is delegated to the District Court of the District of Columbia Circuit and it tries it and finds the man not guilty of contempt. Can the House reverse that, or the Senate, or both of them together?
Eugene Gressman: Reverse a judicial determination on contempt? No, I would think not, Your Honor. I think that, having invoked the judicial power, that's something--
Speaker: Having delegated--
Eugene Gressman: --that would be a violation of the specific separation--
Speaker: --But it wasn't a judicial power in the first instance.
Eugene Gressman: --No.
Speaker: It was a power that belonged to the House and the Senate individually.
Eugene Gressman: That is true. But I suppose that is again a kind of a public right, which Congress may or may not delegate to the courts as it sees fit.
Speaker: Now, I assume--
Eugene Gressman: Once it does delegate that function, that kind of a trial to the courts, then it becomes involved with the whole inherent judicial power over cases or controversies.
Speaker: --Now, one of the reasons, if not the dominant reason, for Congress taking that action was that it was too much of a burden on the Congress to undertake to try contempt cases--
Eugene Gressman: Precisely.
Speaker: --because it interfered with their business.
Eugene Gressman: Precisely. But that is basic to the whole public rights concept, that if it is something that Congress creates then it has a great deal of discretion in farming out some of those functions to the other branches as it may see fit. Once it does farm out or delegate to the courts a matter which properly may be said to be a case or controversy, then Congress loses all kind of control to review a judicial decision. But that is not what has happened in this case.
Speaker: Thank you, Mr. Gressman. Mr. Gressman, may I inquire also whether historically the Congress has used its sovereign power over aliens to enact specific legislation to deport specific individuals?
Eugene Gressman: I believe that... I'm not aware that they've ever used that power. Now, they have had a number of private bills in the past to give them relief from--
Speaker: To give them relief--
Eugene Gressman: --That is right.
Speaker: --or give them status as permanent residents.
Eugene Gressman: That is true.
Speaker: But not to deport.
Eugene Gressman: But not to deport. I'm not aware. That might bring into play a bill of attainder operations. At least that kind of an objection might be made to that. But I'm not aware that they have ever used that kind of private legislation.
Speaker: Mr. Davidson, you have 15 minutes, without being charged with any of our recent colloquy.
Michael Davidson: Thank you. Chief Justice and may it please the Court: Justice O'Connor, in response to your question, in our reply brief we describe the incident in 1940 in which the Congress considered legislation to deport Harry Bridges. Attorney General Jackson roundly denounced that effort as totally unprecedented and a violation of all cardinal constitutional principles, and the Congress did not enact that legislation. And this was at the very time that Attorney General Jackson had been advising the President that he may sign the Alien Registration Act of 1940, which initiated these procedures that are now under review. Last term I stated Petitioner's argument why the judgment of the Court of Appeals should be reversed because of the inseverability of the statute or vacated because of the availability of alternative relief. It remains our conviction that this is not an appropriate case in which to decide the merits of legislative review. However, it is also the view of the Senate that it will serve the public interest to obtain, in an appropriate case or cases, the judgment of this Court on the constitutionality of legislative review procedures. To that end, the Senate yesterday docketed in this Court an appeal from the en banc judgment of the District of Columbia Circuit in the Federal Trade Commission case. The statute in that case authorizes the Congress to disapprove trade regulation rules of the Federal Trade Commission by concurrent resolutions of the Congress. That statute is severable and the Congress in the Federal Trade Commission Improvements Act of 1980 established a special procedure to obtain judicial review and the judgment of this Court on its constitutionality. We are therefore asking in that case that the Court reach the merits and decide the constitutional questions presented.
Speaker: You're adhering to your position here in this particular case that the statute is not severable?
Michael Davidson: That is correct, and because it is not severable there is no relief which may be provided to the Petitioner and the issue should be taken up in a case in which effective judicial relief under Article III may be provided. In determining whether to ask the Court to resolve the disagreement between its coordinate branches over legislative review, Petitioner has weighed competing considerations. On the one side is the need for stability in the structure of government which has been developed in recent years by the political branches. The executive paints a history of legislative overreaching and we have described a history of executive acquiescence or agreement. But in fairness and in some detachment, I believe we can all step back and agree that the political participants have joined in the creation of these contemporary governmental arrangements and share responsibility for that. Although the branches may be contending for relative advantage now, the ultimate interest is that of the Government of the United States as a whole in cautiously approaching the devices which are presently used to mediate political powers over arms sales, budget authority, and numbers of other matters to which legislative review has been applied. These procedures serve important governmental purposes even when they do not result in actual disapproval, because they establish a framework for consultation and agreement between the political branches. It is one of the ironies of this case that the Senate may be more in agreement with the Ninth Circuit than are the Respondents. That court saw the need for restraint and the need to limit its decision in preference to a precipitous redistribution of present political power and responsibility. The need for caution must be balanced, however, against the need for authoritative constitutional guidance. The Congress may be expected to turn again to legislative review to solve new problems, and it is critically important to know whether such resolutions can be founded securely on procedures for legislative review or whether the Congress and the executive should look to other ways to accommodate their differences. Therefore, when a controversy is presented in which the severability of the statute or the lack of alternative relief makes a judgment on the merits appropriate, the Senate will ask the Court, as in the Federal Trade Commission case, to decide the merits of the constitutional issue on appropriately narrow grounds. On the merits of the present case, the claim is made that Section 244 abridges the President's role in the legislative process and his responsibility to faithfully execute the laws. However, the history of the statute and an examination of its text shows that the statute preserves the balance between the branches while, in Representative Celler's words in 1940, "providing a humane and reasonable solution to an issue over which the Congress and the executive have been at impasse. " A case which brings into question the process of legislation must begin with a decision made through that process to limit immigration. But from the outset that basic legislative decision has been the subject of stresses resulting from the openness of borders and the nation's hospitality to tourists and students and others.
Speaker: Well, is anyone challenging the plenary power of Congress over these broad matters of immigration?
Michael Davidson: No, but what is being asked in this case is to transmute a very limited effort to provide relief into a general authority on the part of the executive to confer amnesty subject to no review. And what I would like to do is to describe to the Court the nature of the legislative decision that was made, to see--
Speaker: Doesn't that bear on your severability argument, too?
Michael Davidson: --Oh, it bears very directly, and it is indeed very difficult to separate the severability point from our analysis on the merits. Our analysis on the merits is to demonstrate that this particular sharing of power... and it is a sharing of power... is quite unique under the laws; and the two parts of it, the discretion of the Attorney General to make recommendations and the power of the Congress to allow an alien to change his status from deportable under the laws to lawful permanent residence, are integrally related. One response to the tensions which have resulted from restrictions on immigration has been the periodic consideration of amnesty, and from time to time the Congress has granted discretion to the executive to register as permanent residents aliens who had entered the United States prior to statutorily designated dates, and we are now at a critical moment in the consideration by the Congress of the broadest grant of amnesty ever. Section 244 began in the 1930's as an executive request to the Congress for the power to confer amnesty. The proposal encountered all the problems which amnesty proposals have since encountered. It is difficult to strike a balance between the compelling circumstances of individuals and the strong national desire to enforce the legislative decision to limit immigration. In the course of the seven-year debate which ensued, the Congress considered but could not obtain agreement on various of the alternatives which the Solicitor General has properly described as constitutional. For example, the Solicitor General correctly suggests that Congressional control may be maintained by a legislative decision to limit a delegation of authority to a specified period of years. The House bill in 1937 would have done that, by limiting the availability of relief for a period of four years. But that proposal failed in the Senate, which had been opposed to the grant of any discretion to the executive to grant permanent residence to deportable aliens. Or, as the Solicitor General indicated last term, the statute might have been passed to authorize the executive to recommend cancellations of deportations, but to require legislation to actually cancel those deportations. Indeed, the House-passed bill in 1939 would have established that very procedure. But the Administration rejected that as inadequate. At that point the Congress could have determined that neither bicameral agreement nor agreement with the executive branch to a relief procedure was possible. It could have declared that it had done its constitutional best and simply let the affected class be deported. But by that time it was May and June of 1940 and an alternative to deportation in time of a world at war was deemed essential. The Congress persisted in its effort to resolve the seven-year impasse and invoked those procedures which contribute to successful political resolutions. First the Congress consulted with the executive. Professor Mansfield relates in a contemporary account that the Senate Judiciary Committee substituted a Labor Department draft, and Senator Connally described to the Senate how the Judiciary Committee had called on the Department of Justice "and had the Solicitor General with us. " I cannot say what attention the Solicitor General paid to the relief provisions of the Alien Registration Act, as there were other important provisions. But that Act is not lengthy, and Senator Connally further stated, "We went over all the existing laws and worked the new provisions into existing laws so as to make a harmonious whole. " Important in this respect, Congress incorporated into the Immigration Act the legislative review procedures of the Reorganization Act of 1939, which Presidents continued to support and which the Department of Justice has supported for decades, until disowning it in this litigation. And then, after fashioning this statute in consultation with the executive, the bill received bicameral support and was presented formally to the executive for the approval of the President, which it received. Section 244 establishes a procedure to grant permanent residence. It is not a deportation statute. The only status which may be changed by Section 244 is from deportability to lawful permanent residence. Under these arrangements, the legal authority for the Attorney General to record the permanent residence of a deportable alien derives from the Act, which had been approved through the process of bicameral agreement and presentation. The procedures of Section 244 preserve the balance among the three participants in the legislative process, the two houses and the executive. Each must concur in the form established by the statute for there to be a change in the legal status of an alien from deportable to lawful resident.
Speaker: How does the executive get into the process at the stage of Resolution 926?
Michael Davidson: The executive precedes it. This is an arrangement which changes the order of decision but preserves the role of each branch. The legal status of a deportable alien may not be changed unless the executive initiates the request to the Congress and unless the two houses, through the mode of acquiescence or, in the case of criminal aliens, through a positive resolution of approval, concur. And in fact, that was one of the purposes of the statute in 1939 and '40, which was to take the burden from the alien of initiating private relief procedures by finding a member who would introduce a bill and conferring that burden on first the Department of Labor and then the Attorney General to screen, to recommend, while leaving effective control in the Congress to determine whether the law may be suspended. And that's a significant element of this case. We're not talking about the creation of new rights through the process of resolution. We are talking about the suspension of existing mandates of the Congress to deport individuals who meet certain standards or who fail to meet them. And in order to give that individual a new status, the status of a permanent resident with eligibility for citizenship, it was determined fundamentally important that all participants in the legislative process take part, even though the order of consideration would change, the initiative would come from the executive and consideration then be had by the Congress. The concurrence by the Congress in the grant of permanent residence to a deportable alien only confirms the view of the executive that permanent residence should be granted, and is of course totally beneficial to the aliens whose status is changed. And therefore, even if questions may be asked about legislative review in other contexts, there is no one before the Court who may claim to be injured by the procedures for granting permanent residence through Section 244. I would like to reserve the balance of my time for rebuttal.
Warren E. Burger: Mr. Solicitor General.
Rex E. Lee: Mr. Chief Justice and may it please the Court: The power to legislate is the power to make law, to change people's rights and obligations. It is the most important power of government and in the view of those who wrote the Constitution it has the greatest potential for abuse. The Constitution is unusually explicit concerning how this legislating power, this power to make laws, is to be accomplished: either passage by both houses of Congress and presentation to the President for his approval or, in the event of veto by the President, passage by two-thirds of both houses of Congress over his veto. In recent times Congress has invented a device which circumvents these basic constitutional requirements, eliminates the President from his constitutionally guaranteed participation in the lawmaking process, and switches the authority to legislate, to make changes in the legal rights and obligations that people would otherwise have, to Congress acting alone by majority vote or to a single house or committee of Congress. The legislative veto in this case suffers from the same defect as the legislative veto in any other case. Whatever labels one may choose to attach to it, no label can obscure the fact that a legislative veto is something that Congress does. It is an official governmental act by Congress. If it is not legislative, if it is, as Mr. Gressman said, non-legislation, then Congress doesn't have the authority to do it, because as this Court made clear in Buckley versus Valeo and Springer versus Philippine Islands, the legislative power is the power to make laws. And if it is legislative in character, then it must comply with the constitutional prerequisites for legislation, passage by two houses and approval by the President. Whether it's a legislative no or a legislative yes is beside the point. Congress has in any event made law. It has affected people's rights. Absent what the House did to Mr. Chadha in this case, his status would have been adjusted from deportability to a lawful permanent residence, a very important change, and today he would be a citizen of the United States. It is true, as Mr. Davidson says, that he had no right to have the Attorney General change his status prior to enactment of the original legislation, the Immigration and Nationality Act of 1952. But that legislation made law, made it in the proper way, two-thirds passage over President Truman's veto. That statute gave to the Attorney General the authority to make law as to Mr. Chadha and others like him, and from that point forward he did have the right to have the dispensation that the Attorney General gave to Mr. Chadha and others like him in this particular case. In those few instances in which the Constitution authorizes Congress to act other than through legislation, the textual authorization is explicit and narrow. Examples are treaty ratification and appointment confirmation by the Senate and the proposal of constitutional amendments. When the framers intended to authorize exceptions, they knew how to do so and they did so in narrow and explicit terms. Other than those exceptions, the authority granted to Congress is, as this Court said in Buckley and Springer, the authority to make laws.
Speaker: Well, what makes you think that you're going to find explicit provision for everything the Congress can do in the Constitution? The President certainly has issued innumerable executive orders since the beginning of the nation and I don't think there's anything in Article I that talks about executive orders... Article II.
Rex E. Lee: The difference is, Justice Rehnquist, of course that the Constitution is explicit on this one point, and that is that if Congress is to act other than in a non-legislative fashion, such as dealing with adjournment, ratification of treaties and so forth, it must present its work product to the President for his approval. On one day the framers passed clause 2 of Article I, Section 7, in which they said that all bills must be presented to the President, and then in explicit fear that Congress might be able to act to affect people's rights other than by a bill, they added the next day clause 3 of Article I, Section 7, which expanded that to all orders, votes and resolutions. The Senate also suggests that the legislation requirement was met in this case by the original legislation when the Immigration and Nationality Act first became law in 1952. This is nothing less than an invitation to rewrite the Constitution in its most fundamental respect. It would mean that Congress, acting all by itself by a two-thirds vote, could remove both the bicameralism and the presentation requirements from all future lawmaking efforts. And in fact, this case involves nothing less than that issue. If one house of Congress can lawfully change the otherwise applicable law establishing Mr. Chadha's rights as it did in this case, then I know of no intellectually defensible way to distinguish a statute in which Congress makes every action, rulemaking or adjudication, by every department or administrative agency in the Government subject to veto by one or both houses or even one committee. The President would surely veto the original scheme, but by a two-thirds vote overriding that veto Congress could eliminate the President's constitutionally vested power to participate in lawmaking and thereby bring to pass the very result that was the framers' most deeply held separation of powers concern. And from that point on Congress would be home free with a new power not recognized in the Constitution, and all that it took to bring that about is a two-thirds vote by Congress itself. Mr. Gressman refers again to the unique sovereign power vested exclusively in Congress to deal with aliens. The Constitution does in fact grant broad power over matters of alienage, but it is not a power that belongs to Congress alone. When this Court ruled in our favor in the Placencia case just a few weeks ago, it was dealing with a statute that was enacted by the legislative process: both houses of Congress with the approval of the President. The power to deal with aliens is a power, therefore, that belongs to a majority of both houses with the concurrence of the President or to a two-thirds majority of both houses acting together, following the President's disapproval. And for the same reason, the necessary and proper clause gives by its own terms the power to make all laws which shall be necessary and proper. We deal here with constitutional commands which are unusually explicit and concerning whose purposes the framers left no doubt. No. 73 of the Federalist Papers referred to the propensity of the legislative department to intrude upon and absorb the powers of the other departments. And this Court in Buckley versus Valeo observed, quoting from... excuse me... observed that the debates of the Constitutional Convention and the Federalist Papers are replete with expressions of fear that the legislative branch of the national government will aggrandize itself at the expense of the other two branches. That is a correct statement. Anyone who reads those debates and the Federalist Papers comes away with the unmistakable conclusion that there was no concern that more dominated the debates of that summer of 1787 and the period of passage and ratification between 1787 and 1789 than that which Justice White characterized in his separate opinion in Buckley versus Valeo as an overweening Congress. And it is equally clear what the framers did in response to that concern, that with specific regard to that very concern they built into the Constitution two requirements: the first, that laws be passed by two separate houses of Congress; and second, that any Congressional attempt to make law, to change people's rights and obligations, must be presented to the President. Let me say just a brief word about separation of powers. The Immigration and Nationality Act is a massively complex Act, with literally hundreds of provisions. Congress assigned the responsibility of carrying out most of those provisions to the Attorney General. But in the case of Section 244(c)(2) it assigned the enforcement job to itself, acting through either House. The fact that Congressional law enforcement occurs only after executive enforcement, and then only in the event that either house disagrees with the executive, helps not at all. It lies outside the power of Congress to say, we will wait and see how you execute this law we have passed and if we don't like the way you have done it we will take over the job ourselves. Congress has also squarely usurped the judicial function. In this very case, Congressman Eilberg explained the reason for this particular veto. It was that Chadha and five others "did not meet the statutory requirements. " Plain performance of a plain judicial function.
Speaker: General Lee, as I recall it the Ninth Circuit's opinion rested both on the usurping or interference with the executive power and also on interference with the judicial power. Do you assert both of those grounds here?
Rex E. Lee: Yes, I do. In this particular instance it was a clear exercise of the judicial power. Congressman Eilberg explained the reason that Congress should take the particular position that it did.
Speaker: Well, who had exercised the judicial power that was being interfered with?
Rex E. Lee: Well, it is well settled and has never been a matter of dispute that the Attorney General initially has the authority in implementation of the statute to make the determination that he makes.
Speaker: Well, that isn't a judicial determination.
Rex E. Lee: That is correct. That is an executive determination. But in this particular instance, it was Congress itself rather clearly that said, we conclude that he did not comply with the judicial standards... or excuse me, did not comply with the statutory standards. Now, if that were the case that's an issue that should have been raised in court, either by Mr. Chadha in the event that he contended... if it had gone the other way it could have been raised in court by Mr. Chadha.
Speaker: Well, but it didn't go the other way.
Rex E. Lee: That is correct, and for that reason Congress in effect stepped in and in effect appealed from that determination, and necessarily exercised a judicial power.
Speaker: Congress' overriding of the Attorney General's executive decision is an interference with the judicial power?
Rex E. Lee: It is an... it is an interference with the executive power by exercising a judicial power, which was to interpret the statute.
Speaker: Would it not be more accurate to describe the Attorney General's power, whatever it is, as something in the nature of a quasi-judicial power?
Rex E. Lee: He does exercise something like judicial authority. He exercises a conglomerate of authority that is necessary to his implementation of the statute and that necessarily also includes--
Speaker: Are there other areas where that kind of quasi-judicial power is delegated to the Attorney General?
Rex E. Lee: --I know of few instances of either adjudication or rulemaking, particularly rulemaking, that do not require some exercise of a judicial type power. Finally, notwithstanding the framers' concerns and the unusual precision with which they required not only passage by two houses, but also that all bills, orders, votes be presented to the President, the House and the Senate consistently suggest that legislative vetoes ought to be sustained because our system needs them. They are, we are told, hybrids that work. Parenthetically, it would appear from the only empirical study on the subject and from the experience of the American Bar Association that that premise is in fact lacking. But the real defect is that whether correct or incorrect the argument is irrelevant. Constitutional defects cannot be cured by practical expediency. In this case and two others now pending on petitions for certiorari and appeals before this Court, eleven members of two separate Courts of Appeals have unanimously concluded that the Constitution means what it says. Those eleven judges were correct and the judgment of the Ninth Circuit Court of Appeals in this case should be affirmed.
Warren E. Burger: Thank you, Mr. Solicitor General. Mr. Morrison.
Alan B. Morrison: Mr. Chief Justice and may it please the Court: In defending against the presentation clause and separation of powers arguments made by Respondents here, the Senate and House argue most clearly perhaps in the House of Representatives supplemental brief that what is at issue here is the power of Congress over aliens. We submit that that is no more true here than was the question of the power of Congress over elections at issue in Buckley against Valeo, or the power of Congress over bankruptcy at issue last term in the Marathon Pipeline case. The question is not, we submit, what is the power of Congress, but by what means must Congress exercise that power over aliens in this case. Any time it wants, Congress, that is two houses and the President concurring together, can change the law. They can eliminate Section 244 entirely. They can make us go back to the days of private bills. They can import new standards of flexibility. They can have more or less of it as Congress chooses. What Congress cannot do, what the Constitution forbids it from doing, is to delegate to one house of Congress the power to make those changes in the law and to perform those functions regarding aliens. Now, Congress tries to avoid this argument and by avoiding the argument of the requirements of Article I by saying that we don't have action by Congress here and that all that happened was that the Attorney General had made a recommendation to Congress and that recommendation failed passage in the House of Representatives, and therefore like so many other recommendations that fail it does not implicate the requirements of Article I, Section 7, of the Constitution. The difficulty with that argument is that it neither comports with the operation of Section 244 nor does it deal with or fit in with our constitutional requirements under Article I for lawmaking. This is best illustrated, I suggest, by examining the entire matter that was before Congress in 1975 when Mr. Chadha and five others were vetoed. 340 aliens had the Attorney General's approval. Only six, Mr. Chadha among them, were disapproved by House Resolution 926. Viewed alone, that might be seen simply as saying that they failed of approval like other recommendations failed of approval. This, however, doesn't account for the fact that 334 other aliens who were sent up in the same general time frame as Mr. Chadha became three days later than the House Resolution 926 was passed entitled to have their status adjusted, simply because of the passage of time and the fact that no resolution of disapproval had been introduced in either house for them. So that we have a situation in which 334 aliens had their status adjusted, according to the Senate and the House, by the passage of time and acquiescence by silence, and Mr. Chadha and five other unfortunate aliens had their status referred back to deportability by the action of a single house of Congress.
Speaker: Would you say that that silence equated to non-legislation?
Alan B. Morrison: Well, I have trouble with the non-legislation versus legislation. It seems to me that what silence means is much more clearly in terms of it defining what the action meant. That is, that the action was adverse action to Mr. Chadha and five others and it wasn't simply the failure of recommendation, because silence under our Constitution, Article I, Section 7, does not enable a law to be passed. Laws are passed by two houses of Congress with the concurrence of the President or a two-thirds vote overriding his veto, and that is not what happened with respect to any of the 334 aliens. Therefore, I conclude that the description as mere failure of approval of Mr. Chadha and five others is wholly inaccurate, as it would be inaccurate and unconstitutional to say that the other 334 could have successfully had their status changed simply by the passage of time. In fact, of course in this case the reason that Mr. Chadha's status was adjusted was because of the veto, and this veto is not something that's authorized by the Constitution. Ours is a system of limited powers. The framers did not provide for one-house vetoes over aliens, although they did provide for two one-house vetoes in the Constitution itself, both of them by the Senate, over the power of the President to make treaties and the President's powers of appointment. Those are explicit one-house vetoes. They're contained in the Constitution, and their absence here makes it more compelling that the Court should not imply that Congress is authorized through one house to veto actions of the executive. It is for this reason that we contend that the action by the House of Representatives here is unauthorized under the Constitution and hence is not proper within the meaning of the necessary and proper clause so heavily relied upon by the House and Senate. In defining the scope of the term "proper" in the necessary and proper clause, this Court in Marbury versus Madison required that the legislation be both necessary and proper and, in terms of propriety, that it meet both the letter and spirit of the Constitution. Not only does this veto run contrary to the specific requirements of the Constitution, but it also violates its spirit. The veto here is nothing more than a legislative shortcut, and because of the legislative shortcut it eliminates the role of the President and the other house. But it also runs counter to the entire process by which we... the framers established our lawmaking, under which deliberation was the keynote, and the precipitous action by a single house prevented... would not comport with the need to have well-considered deliberative decisions made. This point about the need for deliberative decisions relates to another point I want to make, and that is that although the activities here are portrayed as an interbranch struggle, this case illustrates that the lives of individuals are very much at stake in controversies such as this. That is, that the legislative veto is more than a battle between the President and the Congress. Similarly, our constitutional system was established not simply to have a bicameral system with each house being individually represented and the President assured of a role as a means of satisfying three separate power blocs. It was not given to do the lawmaking in order to assure that each had a share of the legislative pie. The framers were concerned with the avoidance of unwise, oppressive, discriminatory or hasty legislation, and in order to do that they established procedures with sufficient checks and balances built into them to make it far more difficult for Congress to act in a precipitous manner. And it is these institutional checks against unwarranted and unwise action, as much as the formal requirements of the Constitution, that the veto transgresses. This case is a perfect example of it. The Attorney General, after carefully considering the facts of this case, the statutes, the precedents, concluded in a formal proceeding that Mr. Chadha was entitled to an adjustment of status and to remain in this country.
Speaker: How do you characterize the Attorney General's power that was delegated to him, Mr. Morrison?
Alan B. Morrison: I believe it is a power to carry out the laws and to administer the laws, an executive power. I believe that the violation here can very well be seen as either lawmaking by the Congress through the House of Representatives or it can be viewed as improper interference with the executive carrying out of the function. In the Senate supplemental brief they make four separate references to this desire to share the responsibility for carrying out the laws. That is precisely what the Constitution forbids. So if you view what the House did as lawmaking, it runs afoul of Article I, Section 7. On the other hand, if you view it as sharing the responsibility, it runs afoul of the separation of powers principles which are throughout our Constitution. Congress makes the law; it does not carry out the law. Finally, to the extent that you could view what Congress did here... and in part because of the very hasty proceedings and the rather cryptic remarks by Congressman Eilberg, it's impossible to tell precisely what was in the minds of even Congressman Eilberg, let alone the rest of them. If you view that as an action in which they were judging, as Article III judges would judge, whether the Attorney General had complied with the statute, then once again the Congress is performing a judicial function. It is not, Mr. Justice Rehnquist, so much as though they are interfering with any Article III judge, but that members of Congress would be performing a function which our Constitution has reserved for Article III judges. The point is important because it gets out of the conundrum of trying to figure out how to label the action of Congress. In our view, it doesn't make any difference what the House of Representatives was doing. If it was engaging in judicial activities or executive activities, then it runs afoul of separation of powers. On the other hand, if it was engaged in legislative activities it failed to meet the requirements of Article I, Section 7. So that viewed in any of these ways the legislative veto is improper. Indeed, it makes it clear that it's improper whether or not the agency performing the function being vetoed was an executive agency or an independent regulatory commission, as it is in the two other cases that are pending. Similarly, it makes no difference whether the activity was adjudication, either formal or informal adjudication, or whether it was rulemaking, formal or informal. The focus in the challenge here and in the other cases is on the legality of what the House of Representatives or the two houses of Congress acting without the President did. It makes no difference what the particular activity that the executive performed was, because we are questioning here the legality of what the Congress did. And for that reason, a decision here would carry with it a decision that all of the vetoes are unconstitutional for the same analytical reasons that we've suggested here. And it is for that reason that we say that the attempt to postpone the decision is not, an attempt to postpone the decision on this case, is one that ought to be accepted. This case presents precisely what is wrong with the veto... a Congressional interference in a non-lawmaking capacity with what the executive branch has done. And for that reason, under either of the three analyses I've set forth the veto is unconstitutional and should be set aside. Thank you, Your Honor.
Warren E. Burger: You have one minute remaining, Mr. Davidson, if you wish to use it.
Michael Davidson: To reiterate a point of the last argument, the question of severability in this case is very much a question of separation of powers also. The entire history of this effort to reach accommodations between the two branches from the 1930's on has involved at critical points requests by the executive for new and enhanced authority, which as this history demonstrates often would not have been granted without--
Speaker: Mr. Davidson, if you lose this case Congress can recapture all the powers that it wants to recapture, just repeal the provision that's at issue.
Michael Davidson: --It would in any case have to recapture that power over the veto of the President. Our point is it should return, if at all, to the status quo ante and establish a new basis for shared power after that.
Warren E. Burger: Thank you, gentlemen. The case is submitted.