Warren E. Burger: Number 829, Lewis and others against Martin. Mr. Amsterdam, you may proceed when you're ready.
Anthony G. Amsterdam: Mr. Chief Justice and may it please the Court. The basic issues in this welfare case have become somewhat clouded by the promulgation of new state welfare regulations since the beginning of the suit by the enactment of a new state statute since the decision below by the promulgation of proposed regulations under that state statute not yet in effect and by the variety of decisions taken by the parties and the amici in this Court. For this reason, I think it useful at the outset to describe and to distinguish several different factual situations that is family situations which are represented by the several plaintiffs and the plaintiff's interveners in this case to identify the legal issues presented in each of those situations, and then to describe what is and what is not still an issue in this case. Now, the appellants in this Court include the individual plaintiffs below, the individual plaintiff interveners below and the classes which they represent. All of these persons are members of households which are eligible to receive or which claim eligibility to receive welfare benefits under the federally supported AFDC program that is Aid to Families with Dependent Children established by the Social Security Act. In each case, the family unit which is eligible for such assistance consists of a mother and her natural children. The children are under both federal and state law, dependent children because their natural father is continually absent from home. It is that circumstance that is there being dependent children which renders them eligible for assistance if in addition to being dependent, they are also needy and it is that circumstance which requires the determination of the extent of their need for purposes of determining their assistance levels. Now, in each of these cases, each and all, California has taken account in determining need of financial factors relating to the presence in the household of a man who is not the natural or the adoptive father of the dependent children. I will come shortly to the legal basis for California's action for the present, it is important simply to know that the varying relations of the male figure to the children and to the mother create three distinct factual situations which have differing legal import. The first of these is what we would call the stepfather situation, and the stepfather situation is a case in which the man in the house is ceremonially married to the mother. This is the case of a plaintiff's interveners, the Bell family and the Sims family. The second situation is what is in the jargon known as the MARS situation. MARS is an acronym for Man Assuming the Role of Spouse, and this is a situation in which the man is not ceremonially married to the mother and is not the father of any of her children. The third situation is the so called unmarried father situation. The unmarried father situation is a case in which the man is not ceremonially married to the mother but he is the father of at least one of her children in the household. Now, that child would not be the AFDC eligible child ordinarily because having both parents in the house it would be not be dependent. There are special programs and situations in which he might be but for purposes of these cases, the AFDC child does not include that common child, but the common child is important because of the way California law treats these cases, the matter I will come to shortly. The first thing I want to look at in all three situations though briefly is how federal law and particularly the federal HEW regulation which applies to this situation that is 45 CFR Section 203.1 treats these cases. Under Federal law, the three cases are treated exactly the same. That is to say that in all of them, if there are any actual contributions by the man, the MARS, the stepfather, the unmarried father to the support of the children, to the upkeep of the house; that is considered income to the household, what is known as the FBU Family Budget Unit, for purposes of computing whether or not the family is needy and the extent of the need. However, no income maybe assumed to be received from any of these three male figures for purposes of determining eligibility as needy or for purposes of determining the extent of the need. And this is so because under the relevant federal regulation, income maybe assumed to be coming to an eligible AFDC family only, if it is coming to a natural or adoptive parent of the AFDC children, or if it is coming to a stepparent who fulfills four criteria, that he be ceremonially married to the mother, that he be legally obligated to support the child, that that legal obligation be under a state law of general applicability, and that the state law be one which requires stepparents to support their stepchildren to the same extent that natural or adoptive parents are required to support their children.
Potter Stewart: Now --
Anthony G. Amsterdam: Now --
Potter Stewart: -- am I right in understanding that you've just been describing the HEW regulation?
Anthony G. Amsterdam: Exactly.
Potter Stewart: Right, right.
Anthony G. Amsterdam: This -- a way -- what I'm doing is to describe its effect not yet with regard to California law, but to say the need of the three sets of situations here. The HEW regulation would very plainly say no assumption of income. Now, I'm describing the terms of that regulation --
Potter Stewart: That's what I understood you would be describing, right.
Anthony G. Amsterdam: Now, the result of course is that all of these three situations in terms of assumption in income. The MARS, the unmarried father not ceremonially married but the much more important aspect which also applies to stepfathers is that there is no here obligations under state law of general applicability which is to the same extent as the liability which California puts for the support on the natural father. I want to come back and take those requirements report in detail because they're the nub of this case, but I want to pass to what California does with these three situations to indicate what I think is still a live issue in this Court. At the time this suit was filed, California also treated all three situations the same. That is to say that in each and every case, the stepfather, the MARS, the unmarried father, California said that, "any income which he received whether or not he actually contributed to the family was treated as income to the family after certain deductions were taken. " He was allowed certain kinds of deductions spelled out in state law. But once those deductions were taken, California law simply assumed that the rest of his income was available to the family and either deducted that amount from the need in order to reduce the welfare grant or if it reduced that so the family was no longer needy within the definition, the family simply became ineligible. Now--
Potter Stewart: Just so I can understand California's view on this, if an unmarried father were living as the husband of another woman and with eleven children of theirs, if he were an unmarried father of a child in an AFDC household with another mother and one child of that family, he would -- his income would be attributable to that second unit?
Anthony G. Amsterdam: Well, no, no. I may not understand the question Mr. Justice Stewart. The unmarried father situation only exists where the man is now living in this household. If he is living in this household and has one child in common with the mother in this household, then he is an unmarried father. Now the --
Potter Stewart: I see. It's only applicable if he's living in the household?
Anthony G. Amsterdam: That's right. The effect of this regulation only deals if a man is in the house, that's the whole issue here.
Potter Stewart: Alright, thank you.
Warren E. Burger: Well, he might be living in more than one household, is that not possible?
Anthony G. Amsterdam: Pardon me Mr. Justice --
Warren E. Burger: He might be living in more than one household, --
Anthony G. Amsterdam: Yes, he did.
Warren E. Burger: -- is that not possible?
Anthony G. Amsterdam: Yes he might be.
Warren E. Burger: That's partly at least what I suggest Mr. Justice Stewart had in mind.
Anthony G. Amsterdam: We had no such situations in any of these cases. That is California as far as these cases go, they are dealing with a situation where a man has a stable relationship in this one household. Now, I have some very real question as to whether he might be living in one household -- more than one household for the purposes of characterization. Obviously, he couldn't be more than one kind of a stepfather. He's only ceremonially married to one woman at once except in extreme cases which we might conjecture. As far as the MARS situation goes, I think he would not meet the MARS definition because he probably couldn't be holding himself out to be married, again and except the extreme situation that we might conjecture in a way, it would be treated as a MARS. The unmarried father might very well end up by living in two houses because the only thing that is required is that he live there and that he has a child in the house, and if he in fact splits his time, then, he maybe in two households. We have no such situation. Now, the important change in California law is reflected by the enactment effective November 10, 1969 of a new statute which is set out on page 93 in the appendix to our brief which changes the California rules as to the MARS; that is the Man Assuming the Role of Spouse. It is no longer the case that his income minus deductions is attributed to the family. Now, he is required to make an agreement with the mother relating to the amount which he shall contribute and the statute requires that he makes a contribution which is no less than what it would cost to provide himself with an independent living arrangement. All of this is governed also by proposed regulations. And then -- the effect of the new California statute is to attribute to the family a proportion of the amount of that contribution payment which he is required to maintain. Now, let me describe then the effect of this new statute on our three sets of situations. One as to the stepfather, absolutely no effect; we are still talking at this point in time about Section 11351 which is a statute which this suit originally challenged. It is still in full force in effect as to stepfathers. And therefore as to all past and future matters, that is a live issue here with regard to the stepfather that is the plaintiff interveners here. With respect to them what we seek in this case is a declaration of the validity of the federal regulation under the statute. A consequent declaration by this Court of the illegality because inconsistent with statute on the constitution of 11351. And if the court upholds the federal regulation, there's an end of 11351 because California has admitted from the beginning of this case that it was inconsistent with the federal regulations. The court below so held and we think there's going to be no question about that, and in fact that also will be --
William O. Douglas: That would result in the affirmance of those three.
Anthony G. Amsterdam: That would result in a reversal of the judgment below.
William O. Douglas: But as respect to those three, you said that the court held that --
Anthony G. Amsterdam: The court held the federal regulation invalid and therefore allowed California to enforce its rules.
William O. Douglas: As respect to these three?
Anthony G. Amsterdam: Pardon me Your Honor?
William O. Douglas: As respect to the group you're now talking about?
Anthony G. Amsterdam: Yes, yes. With respect to all parties at that time. The new statute wasn't in effect and the decision was made as to all --
William O. Douglas: But you are now talking about the regulation that was promulgated after this decision was made?
Anthony G. Amsterdam: No. What was promulgated after the decision was made was not a new HEW regulation, not a new state statute.
William O. Douglas: I understand, I understand, yes.
Anthony G. Amsterdam: As to that, there has been no determination below and I'm not asking this Court to rule on that, no that --
William O. Douglas: You confused me because you referred us to page 93 of your appendix that has that new statute in it. Well, I thought you were talking about that.
Anthony G. Amsterdam: No, I'm sorry. The new statute simply raises the issue which I'm addressing at the moment of what's moot and what's not. With regard to the old statute which is set forth in the first appendix to--
William O. Douglas: I know where it is. I understand the case, but I thought that you are all from the new statute, you are not?
Anthony G. Amsterdam: No, no. I'm going to come now to the effect of the new statute which is that in the MARS situation --
Warren E. Burger: Now before you do that Mr. Amsterdam, what weight do we give the new statute except for purposes of possibly evaluating mootness of the case?
Anthony G. Amsterdam: Absolutely none. I think that we would challenge the new statute or I'm about to say is I don't challenge it here.
Warren E. Burger: You do not challenge it now --.
Anthony G. Amsterdam: We are not and we do not and that's exactly what I want to say that with regard to the MARS situation, there is a question of mootness as to future relief. On the other hand, the case is not moot because past payments which are a law borne to California law is still an issue up to date of a new statute with regard even to the MARS cases. And what we ask this Court to do is to the MARS statute is that after reaching the issues in this case which are required by the presence of stepfathers that is holding the federal regulation valid and 11351 state statutes invalid, simply to remand the case to the District Court to allow the parties to frame the issues under the new statute, to challenge it if they please, see how the state regulation solidify and in effect, equitably clean up the case after this Court makes the major decision which we think is the validity of the federal regulation.
Warren E. Burger: Well, isn't there an alternative approach to it to and that's to just wash the case up and let the litigation resolve itself under the new regulations and statutes?
Anthony G. Amsterdam: Well this Court would have to remand if it resolved the case by holding the federal regulation valid. The court would have to remand for disposition on a number of issues. The amount of back payments and that sort of thing and --
Warren E. Burger: Well I didn't say we would have to, I mean it would be wise to do so.
Anthony G. Amsterdam: Oh, it would be ordinary to do so --
Warren E. Burger: Usual --
Anthony G. Amsterdam: I think appropriate in the sense that there are number of unresolved issues that would then be cleaned up. But I think that this Court needs are not entangled itself, is only what I'm saying in any consideration of the new statute and my answer to the Chief Justice's question is precisely, that statute should have no effect here as to mootness or anything else. Now --
Potter Stewart: I'm a bit confused too. Do I understand that the new legislation, your position is has no bearing whatever in the stepfather situation that's precisely as it was when the case was brought here?
Anthony G. Amsterdam: Exactly.
Potter Stewart: And that that presents the question, the basic question of the validity of the federal regulation held invalid by the District Court.
Anthony G. Amsterdam: Correct.
Potter Stewart: And also the validity of the state regulations or statute as the case maybe, but only in the stepfather situation?
Anthony G. Amsterdam: Well, that's unclear, that's the one additional point I wanted to make. The regulations under the new statute for reasons it escaped me as a matter of the California law continue to treat the unmarried father as he was treated under the old law. I see no basis in California law for that and I think we just got to wait and see and again, this is why it's going to go back to the District Court for resolution of these kinds --
Potter Stewart: Well are you going to tell us, you've already told us that the stepfather situation, we needn't be concerned with the new statute?
Anthony G. Amsterdam: Absolutely.
Potter Stewart: Well now, what is in the MARS situation and the unmarried father situation that the new statute says that makes doubtful whether those cases are here?
Anthony G. Amsterdam: Well, the new statute changes the entire method of California's treatment of income in those cases as it no longer is the case that the income to the male is treated as income to the family unit after deduction. Now, there is a new requirement which is that he make a contribution which is described in detail, it has to be the same then he would make the support himself independently to the families and a percentage of that is treated as income. We don't really know --
Potter Stewart: Well, and because of this change I gather, there could be no conflict with the federal regulation if the federal regulation is valid?
Anthony G. Amsterdam: Oh, there may or there may not be but until we know what the new state proposed regulation --
Potter Stewart: We needn't deal with it, is that it?
Anthony G. Amsterdam: It's not here now because we just don't know. It's simply is not right as the answer I think --
Byron R. White: -- written papers filed here?
Anthony G. Amsterdam: Pardon me?
Byron R. White: Is any of this discussions about the new statute or the new regulation in the brief?
Anthony G. Amsterdam: We have both the new statute in the brief and that in the last appendix to our brief, the discussion of the effect of it, yes. But not for the purpose having this Court decide. Now, coming briefly to two sets of questions of letting in the federal regulation and the constitutional issues, I propose to start with the validity of the federal regulation. I think that that is not with all due respect to the court below, very difficult question. Let's take a look at what this regulation does and does not do. It does not restrict in anyway state power to decide how much income a family has to have or lack before they are needy. In that sense, the determination of need is left to the state that what is needy. It doesn't restrict in anyway state power to limit how much of a family's need the state is going to supply. As far as this regulation goes maximum grants and that sort of thing are unaffected. Moreover, it does not restrict in anyways, state power to determine how much income or resources an AFDC family has for the purpose of determining whether it's needy. Insofar as it weighs the actual income received, if any actual income is received, the federal regulation allows the state to treat it as income to the family. What it does do is to deny the state, to treat as income and as its resources. Moneys which are not proved to be actually available to the AFDC family except under specified conditions which are designed to assure that the situation is one in which even without proof of actual availability of money. Meaningful economic protection of the AFDC child is support. Now, I want to make very clear that I'm going to come to the specific regulation in a moment but a vitally important part of this case is that this particular regulation, the HEW regulation is only one sub species, a particularized aspect of a more general HEW regulatory policy. Since 1967, HEW has provided that only income and resources that are in fact available to an applicant or a recipient for current use on a regular basis are to be taken into account in determining need and the amount of payment. And for example, HEW says that in a case where a child has a support obligation under a court order from the father that the state may not free as income, the amount which the court has ordered to pay, unless it's actually paid. Now, the importance of that in this case is that the ground of California's position here and the District Courts decision below doesn't just knock out this HEW regulation. It would knock out every HEW regulation which announces the general or specific policies of non-assumption of income because what California says it has a right to do is to treat as an income to the AFDC family, any and every legal obligation created by state law without proof of actual receipt. Now, HEW has found over the course of many years of administering this program, if there's one thing that have a bird in a bush and I would have a bird in a hand as far as an AFDC family goes. There are lots of legal obligations that just don't come off and don't come through, and it is the purpose of the HEW regulation to assure that except in a vividly class of cases where one can be very sure that legal obligations are in fact likely to come through, that states are not going to be permitted to assume income. Now, we think that the position of the court below in California is wrong. Insofar as they purport absolutely to preclude HEW from limiting state power to treat non-received theoretically available resources as income to the family. Our position is that the statute precisely because it requires the HEW to approve state plans which are required to provide for a consideration of income and resources, plus HEW to decide what kind of income and resources are meant by that and if HEW reasonably sets restrictions on what the state can assume in the way of income, those restrictions are valid. Here in light of the shortness of time, I mean to refer to only two of the restrictions and show how obviously consistent with statute they are. HEW following King v. Smith required that, before income be assumed, state law imposed a legal obligation, and that the legal obligation being a general one, that is under a state statute of general applicability and the same as the father. Some just start with the same as the fathers. Under California law as under MARS law, father's obligation is not defeasible if the father leaves the home. He can be pursued and be required to support his child anytime, anywhere. The obligation imposed by this particular California law exists so long and only so long as in the man is in the home, and that's true with regard to stepfather, MARS and everybody. As soon as he leaves the house, the right ceases. Now, of course HEW could require that California assure something like a parental obligation to support and not the half baked right that California has given children in the situations presented in this case because California -- HEW Cannon says must give them a full fledged right, one which is not useless simply because if a mother threatens to enforce it, the man leaves and there's an end of the right.
John M. Harlan II: I thought there was some dispute even with respect to whether the law is that even though he was in the house or there was a legally enforceable obligation.
Anthony G. Amsterdam: Mr. Justice Harlan, the Government --
John M. Harlan II: -- by the brief exactly --
Anthony G. Amsterdam: That's one of the issues -- with more time I might have tried to clarify somewhat more. We don't take that position and candidly it's for this reason. You've got three California judges below, the California District Court; they said it was an enforceable obligation. There is no California law one way or the other that square on it. There is a recent case that is cited in the California's brief that I might give the court a full --
John M. Harlan II: You don't have to do that because I understand your position --
Anthony G. Amsterdam: Fine, and we need only relayed and not got this regulation on the proposition that the duty of support is not the same and it's not under a generally applicable statute, an additional reason why the Secretary could insist that the obligation be the same is fairly evident from the facts of this case. It is an affirmative purpose of this statute to keep families together. If California is permitted to put in a regulation which says that “income is to be assumed because a man is required to support children only when he's in the home” the effect of that is to drive him out of the home. In two of these cases that's what exactly happened. Now to prevent this result and to assure economic security, HEW, it is our position could properly promulgate this regulation it is valid and accordingly the state statute inconsistent with it is invalid. Thank you.
Warren E. Burger: Thank you Mr. Amsterdam. Mr. Beytagh?
Francis X. Beytagh, Jr.: Mr. Chief Justice and may it please the Court. I should like at the beginning to indicate that the Government's position with respect to the significance of the new California statute and question of mootness is as stated by Mr. Amsterdam, we feel the case is not moot. The essential questions presented to the court when prior to the enactment of the California statute are still here, those basic questions relate to the validity of the HEW regulation. We agree as well that the most appropriate course would be for the court as to the effect of the new California statute assuming the reversal of the decision below to remand it to the lower court for the proceedings to determine just what that particular statute means as to those situations affected by it.
Warren E. Burger: I'd like to ask you one question Mr. Beytagh that may give me a better background to understand some of the problem independent that whatever right the parties have laying other side for the moment. Can you tell us whether in a given situation, if a state program under its statute is not in compliance with HEW regulations whether the federal Government may terminate the grants to the state and terminate participation in the program?
Francis X. Beytagh, Jr.: My understanding is that the federal Government can do that, yes.
Warren E. Burger: And that would produce a result that was across the board would it not?
Francis X. Beytagh, Jr.: That's correct, and a result that of course is not one which is desired either by the federal Government or I would think by the state.
Warren E. Burger: Obviously result with a great deal of disaster involved in it but this is the hold which the federal program has on each of the states basically, is it not?
Francis X. Beytagh, Jr.: I think that's one way to express it, yes Your Honor. The statute clearly sets out the responsibilities of the Secretary and one of those responsibilities is to pass on state plans and very elaborate scheme is set out for the state plans and what they should entail.
Warren E. Burger: Isn't that the best method of enforcement of federal regulations rather than piecemeal litigation by individual recipients?
Francis X. Beytagh, Jr.: I think it may well be a better means of effectuating that. However, the situation that we have here as the court well knows came out of its decision King versus Smith prior to that time, HEW had not felt itself in a position to enforce rigidly on the states, the rules that it had promulgated bolstered by King versus Smith, the Alabama substitute father case, HEW has now sought to enforce those regulations in this case of course came along at this time. We attempted to intervene below and we were not permitted to do so and therefore we are appearing in the --
Warren E. Burger: In this case --
Francis X. Beytagh, Jr.: Yes.
Warren E. Burger: You attempted to intervene, yes.
Byron R. White: Well, may I ask you? Even if the HEW regulation is valid contrary to the conclusion of the three-judge court, do I understand your answer to the Chief Justice to mean this that if California persists with its regulation, the only consequence is that it may forfeit its federal contribution?
Francis X. Beytagh, Jr.: I don't think that that's the only consequence -- the consequence would be that the Secretary would have the option of terminating a program as to California, in fact do that or not I don't know because --
Byron R. White: Well, are you taking the position that there's before us not only the question of the validity of the federal regulation, but assuming that we conclude contrary to the three-judge court that it is valid that we must also determine the validity of the state regulation?
Francis X. Beytagh, Jr.: I don't think that's necessary because there's so a reconcilable and necessarily in conflict that California --
Byron R. White: Well I know, they maybe in conflict but does that make the California regulation invalid or does it mean only that the Secretary may then exercise the option to cut off the federal contribution?
Francis X. Beytagh, Jr.: No. But the Secretary is authorized by provisions of the Act to promulgate rules and regulations to implement it. He has done this in promulgating this regulation that we have before us now, and I think the District Court --
Byron R. White: And if it's valid, does that then supersede so as to make invalidly the California regulations?
Francis X. Beytagh, Jr.: Yes, I think it does under the Supremacy Clause.
Byron R. White: Well that goes a little further than just forfeiture of the federal contribution in it, doesn't it?
Francis X. Beytagh, Jr.: No. It seems to me all that it results in is that California must have a program as some 40 --
Byron R. White: But suppose California says, “We want no part of your federal contribution.”
Francis X. Beytagh, Jr.: Well then, they don't have to --
Byron R. White: Well then they can go ahead and --
Francis X. Beytagh, Jr.: That's right.
Byron R. White: Then, all we -- how do we then declare their regulation invalid that's what I'm trying to get at?
Francis X. Beytagh, Jr.: Well, if the HEW regulation is held valid by this Court --
Byron R. White: Yes.
Francis X. Beytagh, Jr.: Then the California statute is necessarily invalid since it's inconsistent that way --Now California --
Byron R. White: It's not invalid if California wants to go on its own without any federal contributions in it?
Francis X. Beytagh, Jr.: No, that's correct. But the likelihood of --
Byron R. White: Well, then all we hold is that the cost of federal regulation is valid if we do, that then leaves the Secretary in a position where he can say to California, “Now you get rid of that regulation of yours so you don't get any federal contribution.”
Francis X. Beytagh, Jr.: That's correct, just as in the Alabama case, Alabama after King versus Smith could have I suppose said that it no longer wanted to have anything to do with the federal program and gone off and continued to have its substitute father rule.
Byron R. White: Well this isn't the kind of preemption supersession whatever words you want to use. Now, we ordinarily have when there's a conflict between a federal regulation and the state regulation as in the Avocado cases for example.
Francis X. Beytagh, Jr.: No, that's true, but I think we have to look at the thing in context. The California statute is written specifically to apply only in federal AFDC program cases. It was obviously designed for that purpose, that's the only situation in which it applies. Now, California if it didn't like the HEW regulation could obviously draft another statute entirely unrelated to the federal program for welfare assistance, but I think the practical likelihood of that happening is very remote. The federal assistance here is substantial as Your Honor knows and I think that the state simply couldn't function anywhere near a reasonable level that it didn't have a federal matching assistance.
John M. Harlan II: It seems to me that the long and short of what you say here is that the government cannot force the state to make payments, according to its regulations.
Francis X. Beytagh, Jr.: I think that's correct Your Honor. It's a program of assistance.
John M. Harlan II: And how could we determine the questions here such as are presented in this case?
Francis X. Beytagh, Jr.: Well, I think that it's quite appropriate to determine --
John M. Harlan II: To determine, I suppose this and it's regulations is valid, the state regulation is contrary to it that whatever the state wants to do they cannot use federal money.
Francis X. Beytagh, Jr.: That's -- or at least that the Secretary has the option of cutting them off for failure to comply --
John M. Harlan II: Hasn't -- there's a matter of supremacy of the law.
Francis X. Beytagh, Jr.: Yes.
John M. Harlan II: The state can't use federal money --
Hugo L. Black: As a matter of federal supremacy, all he can do is go pay these people himself he can't support California to mix up its fund to the federal money and then according to the federal business desires.
Francis X. Beytagh, Jr.: Well the Act requires that the state be in compliance with --
Hugo L. Black: Yes, but it can if it wants to.
Francis X. Beytagh, Jr.: That's correct.
Hugo L. Black: And that's all.
Francis X. Beytagh, Jr.: That's correct. The essence of this case is the validity of the regulation promulgated by HEW which provides in substance that only actual support payments, the actual contributions made to AFDC families should be taken into account in determining the level of need as Mr. Amsterdam has indicated.
Potter Stewart: And suppose the thrust of these various questions is that the effect that the effect that this litigation may be premature that not until or unless the Secretary of HEW cuts off funds to California on the basis of his regulation, would that regulation or of its validity become a litigable question?
Francis X. Beytagh, Jr.: I think that would be a rather harsh approach --
Potter Stewart: It would be a harsh approach as contrary to King against Smith, but certainly there's a great deal of logic in it isn't it?
Francis X. Beytagh, Jr.: Well, there's some logic in it but in the meantime, you would have to force the Secretary to terminate a program --
Potter Stewart: No, you wouldn't force him if he wants to continue to pay out the money, then he is just not relying on his regulation.
Francis X. Beytagh, Jr.: But then, there's no way -- there's no way that then the Secretary could get the validity of his regulation litigated.
Warren E. Burger: This could be alright.
Potter Stewart: That's up to him.
Francis X. Beytagh, Jr.: Well, the Secretary doesn't think that's alright and with all respect, I don't think he should have to. It seems to me --
Potter Stewart: This is a very strange thing. This, in no way does this California regulation violate federal law but constitutional question aside, Equal Protection question aside. It simply violates it's alleged a condition on the payment of federal money. It doesn't violate anything in the Supremacy Clause or any preemptive thing. It's just a condition that it has to meet to receive federal largess.
Hugo L. Black: The state merely refuses to go in to partnership with the federal Government on its terms.
Francis X. Beytagh, Jr.: Your Honors with all respect, I think that this legislation --
Hugo L. Black: And it has a right to do so, doesn't it?
Francis X. Beytagh, Jr.: We don't disagree with that. We agree that it has a right to do so but as to the question of rightness, it seems to me that forcing the federal Government to cut off the funds to a state that does not want to comply with what HEW feels is a reasonable regulation promulgated pursuant to the authority of the Act, the Secretary is charged with administering, is not a desirable way to go about handling this matter and the court, it seems to me decided that in King versus Smith. I see that the red light --
Warren E. Burger: We'll suspend until morning. Thank you Mr. Beytagh.