Warren E. Burger: We'll hear arguments next in Donovan v. Dewey. Mr. Geller, I think you may proceed.
Kenneth Steven Geller: Thank you, Mr. Chief Justice, and may it please the Court: The issue in this case is whether a federal mine inspector is required to obtain a search warrant before conducting a routine safety and health inspection of mine facilities such as stone quarries pursuant to the Federal Mine Safety and Health Act of 1977. The four courts of appeals that have addressed this question have upheld the constitutionality of the Act. However, the district court in this case concluded that a warrant was required to search appellee's quarry and therefore declared the warrantless inspection provisions of the statute unconstitutional. The Government has taken a direct appeal from that ruling. The facts may be briefly stated. The appellee, Waukesha Lime and Stone Company, operates a limestone quarry and mill facility in Wisconsin. The quarry consists of two open pits that are as deep as 30 feet in some places. Generally, about three times a day workers use explosives to dislodge pieces of rock from the wall of the quarry. The limestone is then taken to a crushing facility where it is crushed and sorted according to size, and the stone is then taken to a building known as the dust house where it is dried, ground, and bagged for direct sale to customers. Waukesha's facility has been subject to regular safety and health inspections by state officials for about 60 years and it has been subject to federal safety and health inspection since 1966 when Congress passed the predecessor of the Federal Mine Safety and Health Act. Now, in April, 1978, a federal mine inspector showed up at Waukesha's mine to conduct a routine health and safety inspection. Following the inspection he cited Waukesha for 25 violations of mandatory health and safety standards. A few months later the same inspector showed up to conduct a follow-up inspection to determine whether Waukesha had corrected the most serious of these violations, specifically, whether the airborne concentrations of silica dust in the dust house had been lowered. Inhalation of excessive amounts of silica dust leads to a condition known as silicosis which is a very serious respiratory disease, even more serious than black lung disease. Waukesha's president, appellee Douglas Dewey, refused to allow the inspector to undertake the follow-up inspection without a search warrant. At that point the inspector discontinued the inspection and issued a citation to the company for denial of entry. The citation was followed by a proposed civil penalty of $1,000. In addition, the Secretary thereafter brought this action in the United States District Court for the Eastern District of Wisconsin, to enjoin appellees from refusing to permit warrantless inspections of their quarry pursuant to the Mine Safety Act. And as I noted a moment ago, the district court denied that injunction and instead held in reliance on this Court's decision in Marshall v. Barlow's that the Act's warrantless inspection provisions violate the Fourth Amendment.
William H. Rehnquist: Mr. Geller, you're doubtless familiar with the Steagald case that this Court decided a couple of weeks ago, where it said that law enforcement officers, even though they possess an arrest warrant, could not go into the house of a third person to seize the person for whom they had the warrant. Now, certainly crime has been a heavily regulated business in the last 50 or 60 years just like mining. If one were to apply Steagald to this type of case, don't you think the district court's opinion probably has something to be said for it?
Kenneth Steven Geller: I think if Steagald were applicable to this sort of case, the district court's opinion would have a lot to be said for it, but we don't read Steagald as wiping out the exception to the warrant requirement exemplified by cases such as Biswell, for pervasively regulated businesses.
William H. Rehnquist: What about a pervasively regulated business like organized crime?
Kenneth Steven Geller: Well, Congress has not attempted to pass that sort of a statute. It's passed a statute which we think is quite similar to the statute that this Court upheld in Biswell, and I don't recall that there was anything in the Steagald opinion which cast any doubt on the continuing validity of Biswell, and therefore we continue to rely on Biswell. This is a regulatory search, for purposes of finding whether there are health and safety violations and not for purposes of finding evidence of a crime.
Potter Stewart: Do you think for the Biswell doctrine to apply that pervasive regulation is sufficient? Or must there be a long... whatever "long" means... history of pervasive regulation?
Kenneth Steven Geller: Well, I think... there are two key cases that... of course, we rely on Colonnade and Biswell, and there's a tendency which we have fallen into as much as the other party does, to lump the two exceptions together in sort of a Colonnade-Biswell exception. I think analytically there are really two separate exceptions. Colonnade, I think dealt with a situation in which there had been an extremely long history of pervasive government regulation in an area--
Potter Stewart: That was of alcoholic beverages?
Kenneth Steven Geller: --Alcoholic beverages. In fact, it predated the Constitution, government regulation. And the Court found in that situation that Congress could reasonably authorize warrantless inspections to carry out the purposes of the statute. Without any further inquiry having to be made as to the need for warrantless searches it's interesting to read the Court's opinion. There's no discussion of that. However, a couple of years later in the Biswell case, the Court confronted a situation in which there hadn't been that long history--
Potter Stewart: And that involved commercial traffic in firearms?
Kenneth Steven Geller: --Firearms. That's right. It was the Gun Control Act of 1968. The Court noted that there wasn't the same long history of government regulation of firearms--
Potter Stewart: There was a history, and it was pervasive.
Kenneth Steven Geller: --There was a history, there was current pervasive regulation, and the Court then went on to say that when you have that sort of a situation, the Court will determine reasonableness by looking at the enforcement needs and privacy guarantees of the statute.
Potter Stewart: Well, what's that kind of a situation? There was a history, wasn't there?
Kenneth Steven Geller: There was a history, as there is--
Potter Stewart: And, in other words, do you think Congress could enact legislation today, pervasively regulating a certain element of industry and providing for inspections and searches and seizures without a warrant? And if it could not, would that provision become constitutional ten years from now?
Kenneth Steven Geller: --No, I don't think, I think that I have to know more about the situation, Justice Stewart, but I think if Congress can, consistent with its other constitutional powers, move into an area for the purposes of regulation, and if--
Potter Stewart: And if the regulation is pervasive enough, it can provide for warrantless searches and seizures without violating the Constitution, is that it?
Kenneth Steven Geller: --If the enforcement needs of the statute require warrantless searches and if there are privacy guarantees in the statute that take the place of a warrant, as there was in Biswell and as we contend that there is in this case... although in this case we also are dealing with an industry which--
Potter Stewart: Of course, my brother Rehnquist would suggest that the police would always say that their enforcement needs require them to violate the Fourth Amendment.
Kenneth Steven Geller: --Well, we're not talking here, first of all, about any criminal enforcement. We're talking about health and safety inspections, for which this Court has said, routine warrantless inspections are frequently necessary in order to carry out the purposes of the statute. That's certainly not the case with criminal law enforcement. And the situations, in fact, in which it is necessary to conduct warrantless searches in order to enforce the criminal laws, the Court has recognized exceptions, such as exigent circumstances, even in traditional criminal law enforcement areas. But we're dealing here with an industry which we submit has been pervasively regulated for many, many years and therefore it's an even stronger situation in many ways than the situation that confronted the Court in Biswell. But even if the Court were to view this case as not involving a long history of regulation but simply a current pervasive regulation, we think the statute can be upheld under the standard that was announced in Biswell, which requires looking into the privacy guarantees of the statute. In other words, is there a real need for a warrant?
Potter Stewart: So, in other words, your answer to my hypothetical case of Congress enacting a statute pervasively regulating an industry and providing for the warrantless searches and seizures of elements in that industry without securing a warrant, if there was a showing that there was a need to do so--
Kenneth Steven Geller: If there was an urgent federal interest.
Potter Stewart: --There would be no constitutional violation. Right, today, the day the statute's enacted.
Kenneth Steven Geller: Yes, yes. That's right. We don't think it can be the case that if this case had arisen 30 years from now it might be different.
William H. Rehnquist: Well, then, Kahriger was rightly decided and Coin and Currency was wrongly decided? The pervasive federal regulation of gambling that was upheld in 345 or whatever U.S. and that was subsequently overruled in 390 or 395 U.S., those cases were simply topsy-turvy?
Kenneth Steven Geller: I'm not familiar with that line of cases, Justice Rehnquist, or its relevance to--
Potter Stewart: They involve compulsory self-incrimination, those cases. Supposing the Government for 100 years has pervasively regulated gambling?
Kenneth Steven Geller: --Well--
William H. Rehnquist: Does that make any sort of warrantless inspection of a nightclub that might be thought to be carrying on gambling?
Kenneth Steven Geller: --No, I think... let me say, first of all, we think that the length of regulation and the pervasiveness of regulation are relevant to what are the reasonable expectations of privacy that a person in that industry may have. If there's been a long history of regulation for 200 years, as there was in Colonnade, then there really can't be any expectation of freedom from government inspection. I think for that reason in Colonnade the Court didn't go any further than saying that, didn't engage in any analysis as to the need for warrantless--
Warren E. Burger: Let me try another hypothetical on you. Suppose, passing over the problems of whether building construction is in the area of interstate commerce, for the moment, that on all buildings and I suppose all commercial buildings would clearly be covered, random inspections by federal inspectors during the process of construction until the building was completed. Would you think that's constitutional?
Kenneth Steven Geller: There would be nothing unconstitutional on the face of such a scheme. You'd have to inquire into what the urgent federal interest is, and I said, you have to inquire as to the need for warrantless inspections. There's not always a need for warrantless inspections and when there isn't a need then the traditional warrant requirement should certainly apply.
Warren E. Burger: There is such a statute with respect to constructing bridges, I think, across any navigable stream, that federal inspectors may come on the site and inspect it at any time without a warrant. I suppose it's to see whether the steel and concrete is going to be enough to hold the bridge up, so it won't fall on the boats or drop the people.
Kenneth Steven Geller: I think in that sort of a situation there's a minimal expectation of privacy and it's certainly reasonable for those sorts of inspections to take place. I learned of another example of a very recent industry in which there hasn't been a long history of regulation and yet there's pervasive government regulation and no one has challenged the fact that it's constitutional. That's the nuclear power industry, which has not been in existence for a very long period of time. You don't have the long history that you even had in Biswell.
Potter Stewart: Of course, your expectation of privacy, that's kind of a circular argument. If Congress today enacts a statute pervasively regulating an industry and you're an element in that industry and if that legislation provides for the warrantless inspections of elements of that industry, then if the statute's valid, you've lost your expectation of privacy.
Kenneth Steven Geller: That's right, for that.
Potter Stewart: But that doesn't mean you have no standing to attack it.
Kenneth Steven Geller: Not at all. But that's just one element, as I've repeated, of the test that Biswell sets up, as to whether a statute is reasonable.
Byron R. White: Mr. Geller, to what extent is the requirement of a license relevant in these cases? Of course, that isn't so here, I take it.
Kenneth Steven Geller: Well, the appellees--
Byron R. White: It was in the gun case.
Kenneth Steven Geller: --Well, there was a licensed gun dealer in that case. There is no physical reason--
Byron R. White: You could either agree to a search in advance or you don't get a license?
Kenneth Steven Geller: --Well, I think the same argument could be made in the mining industry, Justice White. There's no piece of paper that is labelled a license, but we don't think that that's all that significant. To begin with, every mine that's covered by the Mine Safety Act has to register with the Secretary of Labor.
Byron R. White: By the way, are we talking here about the stone quarry business or all mines?
Kenneth Steven Geller: We're talking about the non-coal portion of the mining industry.
Byron R. White: So all non-coal mines you're talking about, not just stones?
Kenneth Steven Geller: This case involves stone.
Byron R. White: Not just the ones that perhaps would be where your enforcement needs to be very great because the danger to health is very great. There are some mines that qualify as mines that aren't all that dangerous.
Kenneth Steven Geller: Well, there may be some cases at the fringe. This case involves a stone quarry. The courts of appeals cases that have arisen under this statute involve stone quarries and gravel pits. That's the sort of situation that this Act was addressed to, where there was a need for further regulation, the non-coal portion of the mining industry.
Warren E. Burger: What about the coal? Warrants in the inspection of coal mines?
Kenneth Steven Geller: No, no. There aren't.
Warren E. Burger: We had a combination of cases four years ago on that subject, didn't we?
Kenneth Steven Geller: Yes, there are no warrants either under... this Act involves the coal portion of the mining industry as well, but neither these appellees nor any other plaintiff has chosen to attack that section of the statute, presumably on the theory that that portion of the industry has been subject to pervasive government regulation even though--
John Paul Stevens: I suppose there's a greater privacy interest in a coal mine than there is in a big open pit, isn't there? A little harder to see inside it?
Kenneth Steven Geller: --Well, I think one of the things that I think is, I should say, is that the distinction between coal and non-coal portions of the industry is not coterminous with the distinction between underground and surface mines. Fifteen percent of the miners in the limestone and quarry industry are underground, and 35 percent of the miners in the coal industry work in surface mines. So there isn't the same--
Potter Stewart: But there has historically been pervasive regulation of the coal mining industry.
Kenneth Steven Geller: --Yes.
Potter Stewart: And at least in this case there's no attack upon warrantless searches provided by the statute of coal mines.
Kenneth Steven Geller: There is not. That's correct, although the Federal Government only got into the business of regulating the non-coal portions of the industry in 1966. But the states had been regulating non-coal portions of the industry for many, many decades.
Potter Stewart: Particularly this state of this particular entity.
Kenneth Steven Geller: Wisconsin had been regulating this quarry since 1922, but other states had gone back even further than that. So we think that the test is whether there's an urgent federal interest, and whether the privacy, whether the statute involved protects the privacy of the individual, and whether there's a need for warrantless searches. That is, we think, what Biswell says and we think this case falls under Biswell. I don't think I have to spend very much time trying to convince the Court of the urgent federal interest involved in frequent safety and health inspections of mine facilities. What I would like to spend my remaining time on is--
John Paul Stevens: The federal interest is precisely the same as in OSHA, isn't it?
Kenneth Steven Geller: --Excuse me?
John Paul Stevens: It's precisely the same federal interest as was present in the OSHA case?
Kenneth Steven Geller: Well, except that we're dealing here with an industry that Congress found to be among the most hazardous in the nation. It deals with a specific industry with an acknowledged history of safety and health violations. The most dangerous--
John Paul Stevens: In OSHA they found a history of all sorts of dangerous things that justified the same program.
Kenneth Steven Geller: --Well, as to certain portions of the industries that OSHA covered, but OSHA also covered a lot of industries that weren't all that dangerous--
John Paul Stevens: What you're saying is, there's a constitutional distinction between something that's very dangerous and something that's just pretty dangerous?
Kenneth Steven Geller: --Well, I think one of the tests that Biswell sets up is whether there's an urgent federal interest for the warrantless searches.
William H. Rehnquist: Well, would you say that there's an urgent federal interest in the apprehension of felons?
Kenneth Steven Geller: Yes. But I wouldn't think it could meet the other parts of the Biswell test, Mr. Justice Rehnquist. Now, I think it's important, in trying to focus on why there isn't the need for a warrant in this case, to look at what the statutory protections are for mine operators in order to determine what further protection a warrant would provide. Now, I think the best way to demonstrate that a warrant would be of virtually no practical value in the mine safety context, and would add virtually no protection to these minimal privacy interests that we think mine operators have in these open pits, is to contrast mine inspections with the sorts of inspections that were involved in the Camara and See cases, where the Court held that a warrant was required for routine housing inspections, and in Barlow's, which involved health inspections under the Occupational Safety and Health Act. The Court stated in Camara and it repeated in Barlow's that a warrant would serve a valuable purpose in those situations because it would limit the unbridled discretion of the inspector as to when and whom to search. The Court stated, in addition, that a warrant would assure the homeowner or the businessman that the inspection was authorized by statute, and was conducted pursuant to an administrative plan containing specific neutral criteria, and that it would advise the owner of the precise scope and objects of the search. Now, these points make a great deal of sense, especially Camara, but also in the Barlow's situation, Camara--
Byron R. White: Well, the Government didn't think so in Barlow.
Kenneth Steven Geller: --I think that the Court found that there was not the factual basis that the Government thought there was for a need for warrantless inspections in the Barlow's situation. But I think we concede freely that Barlow's involved a situation where six million businesses were subject to the Occupational Safety and Health Act, but only about 80,000 businesses were searched every year. Therefore, when an OSHA inspector up at the door, the businessman really had no reason to know whether he properly was there, whether it was in fact an OSHA inspector or what were the standards that we used to pick that particular business, what were the limits of the search power of the officer? I think it's a totally different situation when we're dealing with mine inspectors. Every mine subject to the Mine Safety Act... and that includes virtually every mine in the nation... has to register with the Secretary of Labor, has to be familiar with all of the health and safety standards promulgated by the Secretary of Labor, gets a copy of every health and safety standard promulgated by the Secretary of Labor. The statute that regulates this industry sets forth a minimum number of inspections that have to take place every single year. It's a minimum of two for surface mines and four for underground mines. It's generally the same inspector who shows up periodically every few months to conduct the inspection. The inspector in this case submitted an affidavit saying that he had been making all of the inspections of stone quarries in Waukesha County over the previous five years. He had been showing up at this limestone quarry repeatedly to make these inspections.
Byron R. White: Well, if they sent a new guy maybe they'd let him in. This comes close to a bank examiner situation, doesn't it?
Kenneth Steven Geller: I think that's right, Justice Blackmun. You have the inspector showing up every few months. The mine operator knows why he's there, he knows who he is, knows what the limits of his search power are. The statute itself sets forth the neutral criteria that would allow the search to take place. One has to ask what additional value a warrant would provide in that situation? Now, the point of all this, I think, is that a warrant here, just as in Biswell... and in Biswell, I might add, the Court made the same analysis. The Court pointed out in Biswell that someone who engaged in a licensed business of dealing in firearms is given a copy of all the regulations that are applicable to his business and is told in advance of what the limits of the searching officer's powers are. And the Court said, we don't think that the additional benefits that a warrant would provide in that situation are very meaningful or outweigh the need for frequent, unannounced inspections, which the Court found in the Biswell situation and we assert in this case, Congress found were essential to accomplishing of the statutory purpose. And the point of all this is that a warrant here, just as in Biswell, would tell the mine operator absolutely nothing that he doesn't already know. And because the Act contains legislative standards that would certainly satisfy the administrative probable cause standard of Camara and Barlow's, we think that mine inspectors could procure a warrant prior to these frequent routine inspections virtually for the asking. Moreover, mine inspectors don't have the unbridled discretion under the Act, but are carefully limited by statute as to who, when, and how often they are to search. It's therefore difficult to see how even the minimal privacy interests that a mine operator might have in these pits would be benefited in any meaningful way by requiring resort to the warrant process. A warrant would simply become an empty gesture, we think, under these circumstances. Now, even though a warrantless context serves no useful purpose, I suppose there would be no great lasting harm in insisting on a warrant if the mine safety and health enforcement program would not be adversely affected. But Congress reasonably concluded that a warrant requirement would seriously cut the Act's enforcement objectives because of the "notorious ease"... and that's the phrase taken from the Senate report... the notorious ease with which many mine hazards may be concealed or corrected temporarily if an inspector has given advance warning of an inspection.
William H. Rehnquist: What if Congress had endowed the Drug Enforcement Administration with the same sort of power saying that it's notoriously easy to flush drugs down the toilet and therefore you're entitled to perform a maximum of 12 warrantless searches of disco dancing places every year? Do you think that would get around the Fourth Amendment?
Kenneth Steven Geller: No, we don't want to get around the Fourth Amendment. We don't think it would get around the warrant requirement because in that sort of a situation a warrant would still serve a very valuable purpose when the inspector showed up at the door to make the inspection. It would tell the person in the house that he is who he says he is, he has probable cause to make the search, and it would explain what the limits of the search power are. I think that none of that is applicable to the mine safety situation where the mine operator knows full well why the mine inspector is there and what the limits of the search power are. So we don't think that that sort of a situation would meet the test of Biswell.
William H. Rehnquist: I thought you were arguing now about the congressional finding of urgency and necessity to--
Kenneth Steven Geller: I am, but I think that's just one portion of the Biswell test, Mr. Justice Rehnquist, and we think that for a statute to meet the Biswell test it has to satisfy all of these criteria, not just one. Now, we mentioned one of these particularly egregious examples in which unannounced inspections would have perhaps saved some lives, in our brief. That's the Scotia mine disaster which took the lives of 23 miners and three mine inspectors in 1976. There the evidence showed after the fact that the mine operator had been moving certain brattices which controlled the amount of ventilation in the mine after the inspector had left, but had made it appear through some sort of cosmetic changes that there had been adequate ventilation. And in fact, in this very case... this is a very useful example... what the inspector was going back in to see was whether this quarry had controlled the level of silica dust in the dust house. Now, it seems clear that if advance notice had been given, such as by showing up and being refused entry until he went back and got a warrant, a quarry could well take cosmetic changes such as shutting down the machines for awhile or opening up the windows for awhile to make it seem as if the dust levels were lower than they really are. Of course, mine inspectors could try to solve this problem by getting a warrant before showing up in the first place, but I think that would produce a massive administrative burden. You have 1,900 mine inspectors who have to make, by statute are mandated to make a minimum number of inspections every year. Last year they made more than 120,000 inspections of mine facilities. I see my white light, and I'd like to reserve the balance of my time, if I may.
Warren E. Burger: Mr. Croak--
Warren E. Burger: Let me put to you at the outset a question I put to your friend. What about the hypothetical: Congress after identifying building construction as being within the reach of federal legislative power, laying that aside, then decided that they were going to have inspectors who could come on the on-site of any building more than 100 feet high at any time during the course of construction to inspect. Let's make it 100 so they don't come into one-story houses. Is that all right?
Francis R. Croak: No, I don't think so. I don't think there's any history of pervasive regulation. I don't think--
Warren E. Burger: Well, there is a pervasive degree of regulation at the local level.
Francis R. Croak: --Yes, but I don't think that... at least so far--
Warren E. Burger: And it is random, it is random inspection by building inspectors. I don't know that 100 feet is the limit but tall buildings always have random inspections during construction. Now that's pervasive throughout the country, municipal, sometimes the state.
Francis R. Croak: --Well, I think Camara and See answered that question, though. Those were building, one was a building inspection, one was a fire inspection, and the requirement there was for warrants. So I think your question really is Justice Stewart's question, can you select an industry and having selected an industry avoid the normal Fourth Amendment requirements of a warrant?
Potter Stewart: But under your argument, it wouldn't be valid the day the legislation was enacted but it might be valid 25 years later. By then you'd have 25 years of history.
Francis R. Croak: I see your point, and you only gave my friend here ten years to worry about, but I don't think the ten or the 25 is dispositive of the issue. I agree with him. The nuclear industry from day one. But, if I may, let me say that some industry, such as nuclear, the Government really started the nuclear industry and has since day one. I think that that's a distinguishing factor in that situation. I think in this issue of pervasive regulation, there are some considerations. If you analyze the industries that this Court has found to be pervasively regulated, they cover a broad spectrum of activities in within the industry. The liquor concerns are taxed going back to the Revolution, but after Prohibition we enacted 27 U.S. Code, which tells the distiller or the brewer what size, or he has to have a permit to have a brewery or distillery, he has to... the size bottles that he puts in, the makeup of what he sells, is regulated; who he sells to is regulated. There's even some regulation in there about his pricing arrangements. And--
Warren E. Burger: Well, the history of local inspection of buildings is at least 100 years old, is it not?
Francis R. Croak: --Yes.
Warren E. Burger: Well, isn't that pervasive?
Francis R. Croak: I don't think so. I think you want me to say that you can build a multistatute pyramid which will reach pervasive regulation, some of it being local regulation, some of it being federal, some--
Warren E. Burger: Well but the history of this country is that a great deal of regulation that once was considered entirely local has, as you well know, in the last 40 years become pretty much federalized; maybe even more than 40.
Francis R. Croak: --I don't dispute that and I don't imagine we're here today--
Warren E. Burger: I'm not arguing in favor of it.
Francis R. Croak: --No.
Warren E. Burger: I'm just observing the history of the fact.
Francis R. Croak: I think we'd all agree it's a fact and we won't discuss our own particular views on the wisdom, but the fact is that if this approach is used, I suppose one could fashion an argument that every business in America today is pervasively regulated.
Potter Stewart: Your argument is that the history of pervasive regulation has to be regulation by the jurisdiction that is now asserting the right to search and seize without a warrant?
Francis R. Croak: That's right. Distinguished from--
Potter Stewart: In order to come under the Biswell--
Francis R. Croak: --Piggyback on the federal, and the federal on the state or the local; that's my argument. I'm afraid there is no litmus test for pervasive regulations. There is no one thing, I think, that I agree that licensing is but a factor. Obviously, this business is not licensed nor has it ever been. The other factors which are important are the statute itself. I think that that's something that you have to look at. The peppered... that was a pervasive... pardon the use of the word... consideration, perhaps, in Colonnade. And if you look at the history of this particular industry, I think you find that there was really no meaningful federal regulation of this quarry until, really, 1978, when the 1977 Act become effective, because the Act of 1966 merely established certain advisory standards. It provided that there was really no citation authority in the inspecting agents; it provided for one inspection a year, and now we've gone to two... I don't regard that change as significant. It also provided that in a very narrow area of cases involving non-coal mines, inspectors could issue what were known as withdrawal orders, which would have the effect of a temporary shutdown. The nature, if you read those orders, it's hard to equate those with a limestone quarry, an open-pit limestone quarry especially. But what I'm trying to say is that the language of the Court in Barlow's talks about a long tradition of close governmental supervision. And I suggest to the Court that there's no way you can look at this particular industry and say there's a long tradition of close governmental supervision. I'd also point out to the Court that I think what the Government is trying to do is to piggyback the long tradition, if you will, of government control of the coal mine by... because what happened in 1977 was that Congress amended the Coal Act, did away with the act that affected us, the act of '66, and incorporated by amendment and by definition everything that was in the various mining industries and brought them all under the same strictures that had controlled the coal industry. And, I don't challenge the wisdom or the right of the Congress to do that. I'm only saying that that doesn't give the Congress the right, however, to do away with the Fourth Amendment expectations of this particular industry. The other concern which I have is the argument, or the suggestion of an argument that solely because of the injury rate, or the dangerousness, if you will, of a particular industry, that this standing alone gives the Congress the right to mandate warrantless entry. Now, I don't think any of us are unsympathetic with the goals of government to cut down injuries, but I think that there is no case that this Court has ever decided which ever said that injury alone is a justification for waiver of the Fourth Amendment. If we go that route and start establishing those criteria, I suggest we'll be plowing new ground, and perhaps, Justice Rehnquist, opening the door for some of the things that you suggested by your questions. There are certainly areas in American life where everyone would agree... the Congress, or us, or everyone... would agree that there is a significant dangerousness to most of us as citizens, whether we be workers involved or citizens exposed to certain hazards.
Warren E. Burger: --I just took another look at Camara, which you seem to rely on, Mr. Croak, and that didn't involve the building inspection while a tall building was in the process of being constructed. That was an occupied ground-floor area. Do you think that controls anything?
Francis R. Croak: If you're asking me, do I see the distinction between a completed and an uncompleted building, no, I don't. For constitutional purposes, I don't.
Warren E. Burger: Suppose Congress, after holding some hearings, recited the great incidence of the fires out in the gambling town out west somewhere... I forget the name of the town.
Francis R. Croak: Las Vegas?
Warren E. Burger: Las Vegas. And there have been three or four of those. And then went on to show the loss of life and went on to show the failure to have adequate safety provisions in those buildings, complying with requirements, and then cited all of the cases... and there are quite a few of them... of buildings collapsing during the process of construction, with three, four, five, twenty people, workmen, getting killed. Do you say they could not legislate for random inspection of buildings in process of construction if that hazard existed?
Francis R. Croak: Maybe I'm not making myself clear. I have no problem with the Government inspecting the buildings.
Warren E. Burger: Random inspection of the building while it's under construction to see that they're using the proper amount of cement, the proper sealed structure, in compliance with prescribed standards, and fire safety provisions, and so forth?
Francis R. Croak: If you're asking me, may government legislate to provide for that inspection? My answer is yes. If you're asking me, may government provide for warrantless entry?
Warren E. Burger: Yes, random.
Francis R. Croak: My answer is no.
Warren E. Burger: Random inspection.
Francis R. Croak: I don't have any problem... I think, probably somewhere in OSHA there is a provision which today is permitting government inspectors to look at the tall building that you talk about, but as this Court said in Barlow's, such an inspection requires a warrant.
Warren E. Burger: Well, is your view of the matter that that is a federalism proposition, or view, that that's a matter of local and state government--
Francis R. Croak: No, I do not maintain that. The interesting thing is that, now that I think about it, I think this is reflected in the brief of one of the amici, that that accident rate is higher in the construction industry than it is in the surface mining industry which my client is involved in. I don't know whether it means anything in this particular case.
Thurgood Marshall: --Well, how about, once again, the nuclear. That's okay?
Francis R. Croak: I think it's all right because I can't conceive that anybody could reasonably argue that that's not pervasively regulated. From day one at the University of Chicago the Government has been involved in the industry.
Thurgood Marshall: Well, is it because it's always been, or that it is now?
Francis R. Croak: That it always has.
Thurgood Marshall: I for one am not too worried about lives 20 years ago. I'm worried about lives today.
Francis R. Croak: I feel it's always been... it was pervasively developed by Government and it is pervasively--
Thurgood Marshall: The first year, was it okay? The first year that it was regulated, was that okay?
Francis R. Croak: --I think so, Mr. Justice Marshall, because in my view the regulation came with the development of the industry.
Thurgood Marshall: Well, if that's the point, it has to go along with it, we can never learn? Is that your position?
Francis R. Croak: I think my position is... although I see your point, what you're suggesting, my position remains that the nuclear industry is pervasively regulated, however, but I appreciate your point.
Thurgood Marshall: Yes, you've got a problem; you've got a problem. You can run mines and build buildings without the permission of the Federal Government but you can't engage in the nuclear power business except on a license from what was formerly the Atomic Energy Commission, is that not so?
Francis R. Croak: That's correct. You can't even obtain some of the materials necessary to generate nuclear power, for example, without obtaining them through licensing.
William H. Rehnquist: At one time there was a statutory prohibition against any private individuals even engaging in the nuclear power industry, wasn't there, before 1954?
Francis R. Croak: I'm not familiar with that but it wouldn't surprise me at all, and it doesn't offend me. I think that government can reserve activities solely to itself. I think that there is one other concern that I have and that is the Government's argument that... and this is kind of an unusual situation, the Government is telling us what's good for us, and what's good for us is not to request a warrant because there are other provisions within the law that will take care of us and we are saying we don't want that, we want the Government to get a warrant. It's kind of a backwards situation, if you will, but if I could discuss it? The Government says that the injunctive procedures are the equivalent of a warrant. There was language in Barlow's talking about administrative warrants or their equivalent. I suggest that an injunctive procedure is not that. If one examines the record in this case the pleadings of the Government really allege that we didn't let them in. And so who did it shift the burden to, then? The record is clear, the Solicitor General has advised the Court, that administrative action was commenced against us for not letting them in, and we were fined $1,000. I don't think that the injunctive procedure provision was probably even necessary, because if in fact the government inspector had a right to enter, I think that there was adequate remedy in the law as it exists now for an injunctive procedure of some sort to let him in, so that by putting it in the statute I don't think that it gave us any rights, any more or less than existed before. But the more important thing is that the hearing that one gets at this time is, whether you let us in or not. And the relief sought here was a permanent injunction against us ever to keep government inspectors out. I don't think anybody would seriously stand here and argue that one could issue a permanent search warrant for the examination of our premises or--
John Paul Stevens: That's exactly what the Government is arguing.
Francis R. Croak: --I know they are.
John Paul Stevens: The statute is a permanent search warrant.
Francis R. Croak: But they're telling us that the equivalent of the search warrant hearing is the hearing on injunctive relief. And--
John Paul Stevens: They really don't even need that, if they're right under the statute; that the statute itself is a permanent authorization to go in without notice or without--
Francis R. Croak: --Yes. I also question the position that the Government takes about the absence of a provision for entry, when entry is denied. I find nothing in the statute that prohibits the agent from forcing his way in. I understand that it's the administrative policy of the Secretary of Labor at the present time to direct people not to do that, but there's nothing that you can read that I can read in the statute that prohibits that.
John Paul Stevens: --Mr. Croak, just as a matter of information, is there anything in this statute... and perhaps I should know from the papers, that talks about inspecting records. Or are we only talking about inspection of physical premises?
Francis R. Croak: There is a record provision of the records that are required to be kept and to be made available to the Secretary. Is that what you mean?
John Paul Stevens: Well, can they make... if they win this case, will they be able to not only come in and look around and test the amount of dust in the air and that sort of thing but also can they say, we want to see your records for the last three weeks of how much dust your own tests showed and that sort of thing?
Francis R. Croak: I believe so.
John Paul Stevens: They could do that.
Francis R. Croak: Yes, I believe so.
Thurgood Marshall: On your permanent search warrant, there are some. Isn't there one the Customs people have?
Francis R. Croak: I'm sorry?
Speaker: To search without a warrant?
Francis R. Croak: Customs people?
Thurgood Marshall: Yes. There are permanent search warrants. Provided for--
Francis R. Croak: All right--
Thurgood Marshall: --I think so, I'm not sure.
Francis R. Croak: --No, I think you're right. And I think as a matter of fact one of the cases we rely on in our brief is a search without a warrant 20 or 30 miles from the border, so that Immigration was involved in Almeida-Sanchez, and this Court discussed in that case the--
Warren E. Burger: The question was whether it was or was not a border search.
Francis R. Croak: --Yes. There's no question about the legality of border searches; that's right. I think that some of your questions have suggested to me something which really isn't, perhaps, directly discussed in the brief and that is the almost, the ability, almost, to have a piecemeal disintegration of the Fourth Amendment in administrative search situations, because Congress declares, as they did in Barlow's and as they do here, their concern, proper concern for the safety of the American worker. I think that the Government's position would say that any time they identify an injury-ridden industry, that they could say that... and then pass some regulations that this is pervasively regulated, is a proper area of congressional concern.
Byron R. White: What do you think turned the trick in Biswell? Do you accept Biswell?
Francis R. Croak: I accept Biswell; yes. As a matter of fact, Biswell supports our position.
Byron R. White: In what respect?
Francis R. Croak: Well--
Byron R. White: It can't support both sides.
Francis R. Croak: --No, I understand. Biswell is important, I think, for our point of view because it points out that there are few exceptions to the Fourth Amendment requirement of a warrant.
Byron R. White: What do you think turned the trick in Biswell, that a warrantless search would be all right?
Francis R. Croak: I think the public interest--
Byron R. White: There wasn't a long history of regulation.
Francis R. Croak: --No, and the Court specifically said that. You specifically said that, that it wasn't a long history--
Byron R. White: The Court did; yes.
Francis R. Croak: --That's right. The Court did, and it pointed out, though, the concerns of the public in firearms control, pointing to the--
Byron R. White: So the interest, then, the enforcement interest turned the trick?
Francis R. Croak: --Yes. That's right. Because there was an enforcement entered.
Potter Stewart: Do you think there was some other attack in Biswell?
Francis R. Croak: May I answer this?
Potter Stewart: Yes.
Francis R. Croak: Because the enforcement interest, I think, affected the entire public in America. Or at least in the Court's view it did, where in this case the enforcement interest really affects the miners.
Potter Stewart: And is measured by the extent of the danger to the miners?
Francis R. Croak: Yes.
Harry A. Blackmun: And to every miner? So Congress found.
Francis R. Croak: So Congress found; that's right.
Warren E. Burger: Then you distinguish Colonnade on the ground that it was the long history of pervasive regulation of the grog shops and the liquor business generally?
Francis R. Croak: Yes. Our experience with prohibition; what have you. Mr. Justice Stewart, I interrupted you. I'm sorry.
Potter Stewart: Well, it was really the same question. In Biswell there was a license required to go into the business--
Francis R. Croak: There was a license.
Potter Stewart: --And it could be argued at least that in applying for the license the proprietor of the gun shop accepted the conditions of the license and therefore in effect consented to the warrantless searches?
Francis R. Croak: That's right. I don't say that any one of those things is dispositive. I say that one--
Potter Stewart: A consent would be dispositive?
Francis R. Croak: --Yes, but this is certainly not a consent case and I... contrary to some suggestions in the Government's brief, it's not an open view case, it's not plain view, it's not the Alfalfa case situation where the inspector stood and watched the smoke come out of the smokestack.
Thurgood Marshall: I think you are making the difference between an open mine and a closed mine. Why does it make any difference there?
Francis R. Croak: Well, it may be--
Thurgood Marshall: Well, I mean, you can't see inside of a closed mine?
Francis R. Croak: --No, and you can't see inside of most, many open mines, because they're removed from areas where the public--
Thurgood Marshall: Don't say that to me, because I might be tempted to feel that you can't see it because of the dust. To pursue one of Justice Marshall's earlier questions on this duration of the tradition, of the pervasiveness, before we had elevators in buildings there wasn't any need to have random inspection of elevators and elevator shafts, and then elevators which made possible high-rise buildings, because without elevators they couldn't have had them. They had to begin somewhere, with random inspections of elevators, did they not?
Francis R. Croak: --Yes, and I don't have as much trouble with the initial inspection, because that hinges on the expectation of privacy, which is one of the considerations here. But this mine has been operated at this location since the turn of the century. And I think that's different than the case--
Warren E. Burger: At the turn of the century they didn't know much about black lung and brown lung, or if they did they tolerated it. Is that not so?
Francis R. Croak: --Oh, I think that's true. But the history of coal regulation and the attempts at coal regulation go back to 1911, as I recall. The effectiveness of some of it might be questioned. Obviously, the example the Solicitor General gave of the tragedy was a coal mine explosion. I think that government regulation of coal... I don't think my case stands or falls on the regulation of the coal mines. I also point out that if my recollection is correct for several years, 34 years ago, at the end of World War II, the Government ran the coal industry in America.
Byron R. White: Well, suppose, suppose this was a coal mine case, and we decided that warrantless inspection is all right. Would it, wouldn't you expect it to just rest on the strength of the enforcement interest in the sense that hazard to the miners, and the necessity of saving lives, and the effectiveness of the search, is that... that's sort of Biswell, isn't it?
Francis R. Croak: I don't think it's as much as Biswell and I would, if I were defending the coal mine search... although I realize I'm on the other side here, I would point to the regulation in the national public interest in coal as a fuel and the energy problems and I come back to what I said, I think there was a '46--
Byron R. White: I know, you might help solve the energy problem by staying out of the hair of the miners, and let them go without any inspections at all, but if you were going to defend the warrantless inspection of coal mines, you would have to get to the health hazards sooner or later.
Francis R. Croak: --Oh, and I don't mean that health hazards aren't a consideration, to take it... there were considerations in Barlow's.
Byron R. White: Yes.
Francis R. Croak: And I'm only saying that if I were defending coal I'd also point out two years of... involving the operation of the coal mining industry in this country in the '40s as an example of the pervasiveness of Government regulation.
Warren E. Burger: Before they began coal mine inspections, it was near the turn of the century, there probably was a history of illness, disease, injury, explosions, and what not that led to those enactments. Isn't that so?
Francis R. Croak: Oh, yes. And I don't dispute that the enactments are motivated by a desire to cut injuries. That was Barlow's, too, the concern was to cut injury. And my only statement is that I don't think that standing alone that that's a proper basis or criterion, or you will have completely eroded the Fourth Amendment. And also, then, we get into a situation that I don't think--
Warren E. Burger: Isn't that always... isn't the fulcrum of the Fourth Amendment "reasonable", "unreasonable", or "reasonable"?
Francis R. Croak: --Yes.
Warren E. Burger: So what might have been unreasonable at one time... our cases have said that... determines reasonable or the reverse of that proposition.
Francis R. Croak: But really, I'm arguing that my case is Barlow's, which is not that old, and there's been no change. As a matter of fact, the change, if anything, is it's a little safer now than it was three years ago, I think, although there really isn't any significant change since then. I'm saying that that alone is not the basis, safety considerations alone are not the basis to justify an erosion of the normal Fourth Amendment rights of the operator in court.
Byron R. White: You wouldn't think that would be enough then to sustain the coal mine inspection, warrantless coal mine inspection?
Francis R. Croak: No, I don't think so, because--
Byron R. White: Do you think you have to add a long history of regulation? But that just goes, that goes to expectations of privacy, doesn't it?
Francis R. Croak: --Yes, it does. And a long history of regulation is only one factor, as I said before. Licensing is another thing. Coal mines have to be licensed as opposed to this registration of the kind of mine that we're operating. I don't know whether that's a significant consideration, but I think you weigh all of these things and the problem I get is this piecemeal attacking of the industry concern, and--
Byron R. White: Well, have the states... have the states inspected premises like these for quite a while or not?
Francis R. Croak: --Yes. In Wisconsin there is a warrant procedure. I would be candid, this operator has never insisted it be used, but it exists and our reference is in our brief to the statute, that there is a provision. And the Government alluded to the fact that this mine has been inspected since 1922. I think, in all candor, though, I must say that that inspection... and I think the record bears me out in this, was the kind of inspection that you get under the Wisconsin worker's compensation law, and I think the testimony showed that the same people that were inspecting the department store, were inspecting the factory, were involved in mine inspection, for many, many years because Wisconsin had a comprehensive worker's compensation law that covered anybody that employed more than two people. But there is, as I say, under that law today there exists a statutory provision for obtaining what is called an inspection warrant. Thank you.
Warren E. Burger: Do you have anything further, Mr. Geller?
Kenneth Steven Geller: Just one or two things, Mr. Chief Justice. I'd like to just speak for a moment to what I think is the key question in the case. Certainly it's the key question as posed by Biswell, but it's not something that I think the appellee has addressed. And that is, if in order to satisfy an urgent federal interest Congress determines that warrantless searches are essential, and if the warrant requirement would not provide any meaningful additional protections to the businessman in terms of either limiting discretion of the searching officer or in giving the businessman information as to why the officer is there, why is Congress's decision to set up a provision such as that unreasonable under the Fourth Amendment? What is the benefit of insisting on a warrant procedure under those circumstances, especially if it means that the urgent federal interest can't be accomplished? Now, the appellee has never identified what a warrant would bring him in a case like this. He's mentioned one thing in his brief. He says, if there had been a warrant, the inspector couldn't have done what he did here, which is to show up and walk around our premises for an hour without telling us he was there. But I think that a warrant wouldn't have done anything about that. He could have had a warrant and still walked onto the premises and not identified himself for an hour. By the way, I should add that the statute prohibits showing up without identifying yourself to the mine operator, who has a right to walk around with you. So the statute provides that protection. In fact, the Stoudt's Ferry case, which is a case that was decided by the 3rd Circuit under the statute, shows that a warrant was really not a meaningful protection, but the injunction procedure under the statute may well be. The mine operator in Stoudt's Ferry refused to let the inspector in claiming that he had some trade secrets he wanted to protect. When the Secretary sued for an injunction the district court molded the injunction to take account of these trade secrets. But if the inspector had simply gotten the warrant, if this Court would have decided that one is necessary, and showed up, it wouldn't have taken account of any of these trade secrets. By the way, Justice Stevens, I think that the statute does prohibit forcible entries for the same reason I think the statute in Colonnade did, because there's no specific provision in there that allows it, and the Court interpreted the statute involved in Colonnade as not allowing forcible entries unless Congress specifically says so. Here Congress has provided alternative remedies when an inspector is refused entry. One is the civil penalty and another is the injunction proceedings. And just finally, Justice Stewart, about the licensing requirement, I think the situation is really no different than it was under the Gun Control Act, even though there was a license there. When the Gun Control Act was passed people who were in that business had to comply with the provisions of that statute or go out of business. The same way here: the Secretary or whatever can shut down mines that refuse to comply with the provisions of the Mine Safety Act, including this provision that they comply with health and safety standards and allow for inspections. People who don't want to continue under those circumstances are free to go out of business but I don't know that it makes that much difference whether there's a physical piece of paper labeled a license. Congress could easily, if that, if this Court finds that that's what the defect in the statute is, put in a licensing requirement. That wouldn't change any of the other provisions of the statute. Thank you.
Warren E. Burger: Thank you, gentlemen. The case is submitted.
Speaker: The Honorable Court is now adjourned until tomorrow at ten o'clock.


Warren E. Burger: We'll hear argument next in 742, Miller against Youakim. Mr. Bargiel, I think you may proceed when you're ready.
Paul J. Bargiel: Thank you. Mr. Chief Justice, may it please the Court. This case began in January of 1974 when the plaintiff's father complained against the Department of Children and Family Services of the State of Illinois in the Federal District Court for the Northern District of Illinois. The complaint challenged the Illinois policy refusing foster care payments, the persons who cared for children who were related to them and to the children themselves. Illinois based its policy of refusing foster care payments to relatives upon its determination first that assistance had always been provided to related person and to children under the basic AFDC program contained in Section 406 to the Social Security Act. And secondly, upon the determination that Section 408 of the Social Security Act define those eligible for Foster Care benefits as caretakers and children who are unrelated to each other. The plaintiffs in this case are caretakers and children who are related to each other and thus are denied Foster Care benefits under Illinois' policy. Their complaint alleged the course of action that the Illinois scheme was in violation of their Fourteenth Amendment rights to equal protection. The Department of Children and Family Services filed a motion to strike and dismiss the plaintiff's complaint which the three-judge court which was in panel to hear this case treated as a motion for summary judgment. The three-judge court held that the Illinois policy of denying Foster Care benefits to children who are related to their caretakers was not a denial of equal protection. That case was appealed directly to this Court and the plaintiff in their jurisdictional statement urged in addition to their equal protection claim for the very first time that the Illinois policy or scheme of denying Foster Care benefits was inconsistent with the Federal Social Security Act and therefore there was a violation of the Supremacy Clause of the United States Constitution. Because this claim had not previously been presented to the three-judge court, this Court reversed the three-judge court's decision and remanded the case to the three-judge court for consideration of this issue. On remand, the single judge of the District Court found that the Illinois scheme of the denying Foster Care benefits to related caretakers was inconsistent with the Social Security Act and therefore a violation of the Supremacy Clause. The Department of Children and Family Services appealed this decision to the Seventh Circuit Court of Appeals, and the Seventh Circuit Court of Appeals affirmed the District Court's determination. The Department of Children and Family Services then filed its notice of appeal to this Court and subsequently its jurisdictional statement urging that its policy of the denying Foster Care benefits to related persons was consistent with the Social Security Act and this Court noted probable jurisdiction on the 21st of February 1978.
Harry A. Blackmun: Mr. Attorney General, are there many other States had follow Illinois' lead here?
Paul J. Bargiel: There are other states which follow Illinois' lead. I believe that the briefs indicate that there are six or seven states who are doing this. I believe, however, that the majority of states who are involve in the program now take the contrary position that is that foster care is maybe related care. The issue in this case I think maybe simply stated as our children who are related to their caretakers and children themselves eligible for foster care assistance under Section 408 of the Social Security Act. It is our position that this case involves essentially a question of statutory construction and it's also our position that Section 408 of the Social Security Act by its clear terms indicates that foster care means unrelated care. Since our case turns entirely upon a proper reading of the statute, I would like to devote the reminder of my time to a reading of the statute to show the Court what we believed to be the clear indication in the statute itself that foster care is unrelated care. The statute is contained in an appendix, our jurisdictional statement. This appendix say in Section 608 is contained at page a6 of that appendix and that is what I want to devote my argument to if I may. Section 608 is entitled "Payment to States for foster home care of dependent children; definitions". On paragraph (a) terms or defines I should say the term dependent child. It reads as follows, “The term dependent child' shall, notwithstanding Section 606(a) of this title, also include a child.” Now, I would like to focus if I may on two words in one of the phrases that are used in those first two lines. The first word is the word notwithstanding. Notwithstanding according to its common usage means in spite of. So, the term dependent child in Section 608 is going to be a child who in spite of Section 606(b) of this title. Now, Section 606 -- I'm sorry section -- in spite of Section 606(a) of this title. Now, Section 606(a) is the regular AFDC program and it provides that the children will be eligible for assistance if they live with specified relative. Now, if Section 608 which defines the term dependent child as one that is a child in spite of the definition contained in Section 606(a), it must indicate an intention on the part of Congress to create a class which is different in the class which was already created in Section 606. We read that of course since the child who was eligible in 606 was a child who was living with specified relative, we read that as being, the Section 608 child as being someone who is not living with a specified relative. Congress also chose the word, chose to include the word also that is after the term dependent child shall notwithstanding Section 606(a) of this title. I said it shall also include a child. Now, the word "also" as it's commonly used means in addition to, besides or as well as. So, the definition in 608 of dependent child is a definition in addition to or besides or as well as the definition on Section 606(a). Again, since the definition in 606(a) requires a dependent child to be living with the specified relative, the definition in Section 608 must be something different, and we contend again that's further indication that the differences that the child is going to be unrelated to his caretaker in Section 608. Paragraph one indicates that the term dependent child shall notwithstanding Section 608(a) of this title also include to child and one reads, “who would meet the requirements of such Section 606(a) except for his removal from the home of relative specified in Section 606(a). So under paragraph (a)1, a dependent trial is a child who notwithstanding the provisions of Section 606, shall include also a child who would be eligible under Section 606 but for his removal from the home of a specified relative. We submit that this is again an indication of the fact that Congress intended to create a new class of persons here on the Section 608, and that new class of persons were going to be eligible for care are persons who are unrelated to the persons for whom, or by whom they are given care.
William H. Rehnquist: Now, that you're -- you are saying that the language except for his removal from a home by judicial decree suggests that 606(a) would exclude those people and in such a way (Voice Overlap).
Paul J. Bargiel: That's -- that is correct, Your Honor. That is precisely our position. One of the reasons so we take that position is that the children who were removed from the home of a relative pursuant to a judicial determination that that home was no longer fit where all this children who are eligible for assistance under the basic AFDC program contained in Section 606. Congress did not need to pass Section 608 in order to provide illegibility for children who were removed from the home of one relative pursuant to a judicial determination and placed in the home of another relative. Those kinds of children were always covered under the basic AFDC program. It's our position then since Congress didn't need to do that, it must have been their intention to create new class of persons who would be eligible for assistance. That new class of persons of course are persons who are unrelated to their caretakers because they were never eligible for assistance under the basic AFDC program. And I -- and I might add Congress too through out the definition of dependent child here has contrasted the definition of dependent child in Section 608 with the definition of dependent child in Section 606 and I think that contrast was intended to demonstrate that the class of children who are going to be eligible for assistance under Section 608 is a different class than the one on the Section 606. Now, on page a7 on the brief at paragraph (b), the Congress has also defined the term aid the families with dependent children. And they do that in the same fashion that they have defined the term dependent child on paragraph (a). They say the term make the families with dependent children shall notwithstanding Section 606(b) of this title include also, foster care on behalf of a child described in paragraph (a). The term Aid to Families with Dependent Children in Section 606(b) which is the basic AFDC program means, aid to a family who is taking care of a child who is related to that family. If this section notwithstand -- if Section 606 which is the new program, the Foster Care program is created notwithstanding Section 606(b), again, it must be another indication that Congress intended to create a new class of persons and again that new class of persons are families who are not related to the children that they live with. Now, I think too that the plaintiffs recognized in this case, that that language notwithstanding Section 606(a) or notwithstanding Section 606(b). In the term also, presents a problem to their interpretation of the statute and I would say that because they define Section 608(b) that is -- they defined the term Aid to Families with the Dependent Children at page 35 of their brief and I think it's interesting to note the way they do that. Page 35 at the bottom of their appellee's brief quotes, from Congress' statute Section 608(b) they say it's given a specific meaning and the meaning that they give it read as follows, they say, “The term Aid to Families with Dependent Children shall include foster care in behalf of a child describe in paragraph (a) of this section.” What's significant about that is that they have deleted the very language which I say indicates Congress' intention to create a new class of children. It reads the term Aid to Families with Dependent Children shall and then the phrase notwithstanding Section 606(b) is deleted.
Thurgood Marshall: But this also in A7 includes child care institutions too which is not involved in this at all.
Paul J. Bargiel: That -- that is correct, Your Honor.
Thurgood Marshall: It also includes 603(a)(1). What is this just a hard project?
Paul J. Bargiel: I'm sorry, Your Honor I don't --
Thurgood Marshall: That's my problem I don't understand it, you understood it.
Paul J. Bargiel: Well, our position -- our position is that eligibility is defined in Section 608 in terms of a dependent child or family with whom that child is living. Once that child is eligible, that child may be eligible for foster care in a family home or maybe eligible for foster care in child care institution. What I am focusing on and what this case is all about in my estimation is, who is eligible for the benefits which were provided for in Section 608. And I am saying that Congress defines who is eligible, when they defined the term dependent child and when defined it is being a new definition notwithstanding the old definition which was contained in the basic AFDC program. I would like -- I would like to point out again that the plaintiffs exclude in their reading of that definition.
Thurgood Marshall: Well, why is it that in this case, this is not included in all of this language on page 86 and 87, which I don't understand?
Paul J. Bargiel: Why -- why is what not included, Your Honor?
Thurgood Marshall: The respondents in this case.
Paul J. Bargiel: I'm -- I'm sorry, I do not --
Thurgood Marshall: You say will not pay this people that are in this case right?
Paul J. Bargiel: That is our -- our positions that are not (Voice Overlap)
Thurgood Marshall: And my question is why! W-H, Why?
Paul J. Bargiel: Our position is we will not pay them because Congress did not define them as a class which was eligible for assistance under Section 608 of this program. They are eligible for assistance under Section 606 by its literal terms and they've always been eligible under Section 606 by its literal terms. Congress created a new class of persons in Section 608, a class of person who were formerly ineligible to receive any benefits. Before Section 608 was created, any child who was unable to live with the relatives specified in Section 606 was ineligible for AFDC, could receive no benefits whatsoever, no matter how --
Thurgood Marshall: What about -- what about 607?
Paul J. Bargiel: Well, 607 requires that a child lives with a specified relative again, and be deprived of parental support because of his father's unemployment. That's precisely our point. Under those programs, a child would be eligible for assistance if he had the ability to live with a specified relative. But children who could not leave with the relative, were not eligible for any assistance at all and when the Congress passed this program it's our position that they did it with the intension of benefiting a class of children who were previously ineligible for any kind of assistance at all. As the Solicitor General points on in his brief too, I might add, there was no controversy in this case until the monitory benefits for foster care where increased beyond what the basic the AFDC program provided for. But when this program was initially enacted in 1961, that is the Foster Care program, when in was initially acted -- enacted in 1961, the benefits as I understand were precisely the same for the basic program as they were for the Foster Care program. Now, it seems to me if the benefits were the same, when the program was created and they weren't increased until 1967. If the benefits were the same that must indicate that Congress intended at that time to benefit a new class of persons. One who had been previously without any kind of assistance at all, because the benefits were precisely the same. At any rate, my point is that the way that the plaintiffs can wind up being eligible for assistance under this program is to exclude the language which I said as they have done at page 35 of their brief. In order to be eligible for foster care or in order for the state to be able to receive matching benefits for foster care, they have to under Section 608(f), they have to provide a program which is designed to improve the conditions in the home from which the child was removed or to otherwise make possible, as being place on a home of a relative specified in Section 606(a) of this title. It's our position that if the state has to provide a program which will put a child, take a child out of foster care and put him in the home of a specified relative that has no significance or no meaning if the child was already in the home of a relative because the goal of Section 608 is then satisfied. That is -- that is to say, that a child -- there is no purpose or point in taking a child out of the home of one relative and putting him in the home of another relative. This -- this language of Congress in Section 608(f) in our view has no significance whatever. If the statute is interpreted to permit foster care by relatives, it has no meaning. Based upon our reading of the statute and the reading which I have attempted to engage in here before the Court, it's our position that foster care means unrelated care. It's clear even if it's implicit in the statute.
Warren E. Burger: Do you think that it means that in the ordinary vernacular clause?
Paul J. Bargiel: Do I think it means unrelated care in the ordinary vernacular?
Warren E. Burger: Yes.
Paul J. Bargiel: I did until --
Warren E. Burger: You read the statutes.
Paul J. Bargiel: Pardon?
Warren E. Burger: Until you read the statues.
Paul J. Bargiel: No, no, until I read the dictionary definitions, not until I read the statues. It's clear in my mind that Congress intended foster care to be unrelated care, because of the way that defined the term dependent child and aid to families with dependent children. I think that the term foster care may vary from person to person or individual to individual. As the plaintiffs point out, foster may imply the relationship between a child and his caretaker that is anyone who provides what the mother or father would provide with be considered to be a foster parent. I will concede that that's true but I don't think that our case turns on, on that understanding. We rely on the plain language that Congress used in the Social Security Act and it's our position that based upon that language and our reading of it, which I think is not a selective reading but a fair reading, foster care means unrelated care. In order for the plaintiffs to include themselves in this category, to make themselves eligible, they have to engage in a selective reading of the statutes. They have to read out words and phrases because they can't read them consistently and make all the terms and all the provisions of the foster care statute have significance or make or sense. I would like to reserve whatever time I have left for rebuttal and I would simply ask the Court that they reverse the judgment in order of the Seventh Circuit Court of Appeals.
Warren E. Burger: Very well. Mr. Lehrel.
Robert E. Lehrer: Mr. Chief Justice and may it please the Court. This case presents the question of whether a neglected or abused child judicially taken from his own home may be deprived to federal Foster Care benefits solely because the state then places him in a home of his relative. The Department of Health Education and Welfare with the children here says that Congress intended no such deprivation. Illinois says, “The Congress intended precisely that deprivation by affirming the Court of Appeals' decision here, this Court will effectuate Congress' intent, these neglected or abused children be cared for under the Federal Foster Care program which was intended to assure this children the most suitable out of home care for them.” Now, the state defendant says the benefits here are the same and tries to make the program served -- duplicate assistant programs. Programs did not provide duplicate assistance today and they did not provide it in 1961. Section 408 provides in Section F and in the service components of the licensing standards a range of social services which is specifically designed to meet the needs of neglected or abused children who have been removed from their own homes and made state wards. These services are provided to assure the child proper care and the foster family home or child care institution in which he is placed and also are provided to the child and to the parents from which -- from whom he was taken in order to affect the reunification of the family.
William H. Rehnquist: Doesn't -- well, doesn't 608 have in the very language you just quote suggests that Congress was thinking about 2 different classes of children in 608 and 606?
Robert E. Lehrer: No, Your Honor with all due respect, I don't believe that is the case. The character of those services applies to a class of children who have been abused or neglected in their own homes not just to abused and neglected children who have been placed in the homes of non-relatives. The services provide, the required services under the Federal Act require an individualized social service plan to assure the child proper care in the home in which she is placed and also provide for services to not only him but to the parents, the home from which she was removed in order to effectuate a reunification of the family. The character of those services is no less applicable to children who are placed with relatives and those who are placed with non-relatives. It's just as much in need to -- they're just in much in need to remedy the neglect the deprivation of children placed in relatives by effecting a reunification of the family as children placed with non-relatives. So no, the service component here which is not only reflected in F but also reflected in the licensing or approval standards is responsive to the abuse or neglect and that's not -- it doesn't go along to children who are placed in non-related homes. For instance, the service component of the licensing standards which all states under F are required to apply to eligible children and which Illinois applies to the related homes here --
William H. Rehnquist: But your definition of eligible children comes from 606(a), doesn't it?
Robert E. Lehrer: Well, the definitions of eligible children come from 606(a) but it turns at least in part or eventually on the last paragraph of 608(a) because the state's contention here is as the Court of Appeals noted. State says in its brief turns on the statutory definition of foster family home in Section 608(a) --
William H. Rehnquist: Well, doesn't it also turn on the definition of the dependent child in 608(a)?
Robert E. Lehrer: Most certainly, Your Honor, and what Section 608(a) is doing is to -- is defining a -- is establishing a new program and setting forth new eligibility standards which a child may meet and be a dependent child. It's redefining the term dependent child.
William H. Rehnquist: What -- what do you make of the language that your opponent relies on in the first part of Section 608(a) there, that a dependent child shall also include a child who would meet the requirements of Section 606(a) or Section 607 except for his removal from a home of a relative? Does that suggest to you that a child who is removed from a home of a relative by a judicial decree would not except for 608 meet the requirements of 606 or 607?
Robert E. Lehrer: No, if I understand your question properly, the language that defendant makes so much of his language that supports the conclusion of the children here are eligible. What Section 608 is doing, Section 408 of the Act is doing, is to make irrelevant the definition in 606. That's what notwithstanding suggests, that here, notwithstanding the definition of dependent child in 406. Here is a new set of eligibility criterion, which --
William H. Rehnquist: Well then, you get all your rights from Section 608.
Robert E. Lehrer: From Section 608, oh, yes, except that I think as the defendants takes time to point out that the statutory definition does have to be interpreted in the context of its statutory environment particularly Section 601, Section 42 U.S.C., Section 601 which provides that the primary purpose of the program, one of the primary purposes of all the AFDC programs is to encourage the care of dependent children in their own homes or in the homes of relatives. Thus, our rights straight forward we do have to turn on Section 608 but it has to be interpreted in the light of Section 401 and it's the state's policy here which frustrates the primary purpose of all the AFDC programs. What's happening here is you have Congress in 1956 amending the Social Security Act since they specifically the one on the primary purposes of all the AFDC programs is to encourage the care of dependent children in their own homes or in the homes of relatives and the import of the states' position is that five years later Congress has established a new AFDC program which frustrates precisely those goals. And it frustrates it in precisely this way as this -- that the state's policy serves as a disincentive in the first instance for relatives to care dependent children has happened in this case. It has happened in this case, the Youakims were discouraged from taking care of children who are related to them. That's the first way that discourages as the primary purpose of the AFDC programs. The second way is that even if that disincentive is overcome and the children are as they were here placed in the homes of relatives then the State policy denies them to service specified in Section 608(f) designed precisely to reunify the family as its placed back in his own home. It is most unreasonable to read Section 6 -- Section 408 of the Act to frustrate what Congress five years previously had said with the primary purposes of all the AFDC programs. So, it was not true in 1961 and it's not true today that the programs provide duplicate assistance. Although as defendant points out, there was no higher federal matching rate in 1961 for these benefits. In fact, all the states immediately even though there was no higher federal matching rate, immediately began paying substantially higher benefits and this reflects the recognition by the states that what was meant here was a program to care for children who needed special remedial care, who needed more benefits. Now in 1967, when the matching rate was increased, what Congress said in providing those increased matching benefits was that the benefits were necessary because foster care was more costly than care in a child's home and also that it was responsive to the needs of the child and that's what's going on here. Congress established a new program to meet the needs of these children. These children who have been especially grown up in unsuitable environments and have been subject to abuse or neglect, it's a remedial program. This is not simply a program for children who don't happen to have a relative to live with. In fact, which is what defendant is arguing would suggest in fact of course most children who don't have relatives to live with aren't eligible for the Foster Care program. This was not a new comprehensive program to take care of children who didn't happen to have a relative to live with. What it was is a new program to take care of children who have been subject to abuse or neglect in their own homes. And it's a small program especially designed to meet the needs of children unfortunate enough to have grown up in those sorts of environments. In Illinois, for instance, there are over 500,000 children eligible for regular AFDC benefits but the entire AFDC Foster Care program includes only 4,000 children. So, we're talking about a small group of children here. Now, defendants placed great reliance on the statute and we think they are proper to place great reliance on the statute but they draw the wrong conclusions for. The statute very persuasively as the Solicitor points out supports the conclusion that the children here are eligible for Foster Care benefits. We discussed the statute at length in our brief but there are four points that merit emphasis here. First is the statutory definition of foster family home. Second is the specification that AFDC shall include foster care to an eligible child in the foster family home of any individual. Third is the provision within the statutory definition that foster family homes in which eligible children are placed may be approved as meeting licensing standards. This is a provision which is specifically applicable to homes, to states in which relative homes are not licensed. And fourth, in Section 402(a)(19)(f), a related provision of the Act which constitutes a specific congressional recognition of a relative home as a foster family home. First, the statutory definition of foster family home, defendant dismisses the significance of this because of the statutory definitions repetition of the defined term foster family home in the definition itself. I'm reading now from the last paragraph of Section 408. In fact, the repetition of the terms suggest a congressional weariness that any paraphrase of that term might be read to restrict the states' authority to place a child in the home which it might deemed most suitable and thus that the only restrictions on foster family homes are those the state places on the home itself in terms of the homes' suitability. But that aside, Mr. Justice White, you look a bit confused, I'm sorry okay. I'm sorry, I thought you'd ask a question. But the use of the defined term foster family home has no reason to stop reading the definition. The definition goes on to say that a foster family must at least be a home for children and it must be licensed or approved by the state. The purpose of the licensing or approval requirement was to assure that the homes in which eligible children were placed met state qualitative standards and it's state standards which must govern their suitability. In Illinois as in all states, caretakers of state foster children and their homes are required to and do meet the same qualitative standards as applied to homes caring for non-relative foster children. And these qualitative standards which I've reviewed summarily before mandate that the home meet specified safety and health standards and prescribe minimum safety requirements and the caretakers themselves must meet certain -- must pass inspection as to their health and their overall fitness to care for these children. In short, except for purposes of AFDC foster care eligibility, Illinois deems the related caretakers here to be foster parents just in the same manners as it does to unrelated caretakers. Defendants continued cate -- grouped the related caretakers here with the relatives under the regular AFDC program. But in fact, the relatives here and the homes here just aren't any relatives and they aren't any homes. These are relatives and homes which have been especially approved by the state under state law to be suitable for the care of children who have been abused and neglected in their own homes and then taken from those homes and made state wards. So, the grouping that defendants try to effectuate is belied by its own law and its own practice and policy. Mr. Chief Justice Burger, in this context, in the context of this statutory definition of foster family home which is the determinative term in the case. In that context, the state's argument really rests upon a proposition that Congress meant to simply exclude them, exclude relative homes from the meaning of foster family homes in the first instance but as in response to Mr. Chief Justice Burger's question, counsel concede that that, in fact, the ordinary use of the word may often carry with it and usually does carry with it as we discussed at length in our brief the meaning of relative care. As a matter of fact, in this Court's previous opinion in this case, it used the term related foster care and related foster parents, related foster home without any apparent ease or strain associated with that term. That's the common ordinary meaning of the term and that's the meaning which Congress attributed to it in the foster care statute. Second point in the statute which I emphasize is Section 408(b) which refers to the AFDC, term AFDC shall notwithstanding Section 606(b) of this title include also foster care in behalf of the child described in the foster family home of any individual and the term of any individual explicates the term foster family home. It demonstrates what's otherwise clear from the legislative history and from the logic of the statute, that Congress meant to include any individual the state might deem to be a suitable caretaker for its foster children as AFDC foster parents. What individuals might be AFDC foster parents, Section 408(b) when read with the statutory definition says that any individuals may be so long as the state deems them suitable under its licensing standards which Illinois does for relatives. Finally, there is the -- or third there is the approval provision in Section 4 -- in the last paragraph of Section 408 which provides that a foster family home maybe either licensed or approved as meeting licensing standards. Legislative history does not indicate specifically why this approval of procedure was included -- alternate approval procedure was included in the statute. But we do know that in 1961, as today, several states exclude relative homes from licensing in the first instance and in that light, it's most logical to read that insertion of the approval procedure as Congress' effort, Congress' mandate that children placed in such homes, that those homes meet the same standards as were applied to homes which were licensed under state law. In this context, the approval requirement emergence with Congress' means of insuring that the children placed in those homes, in their relative homes would receive the same benefit as children placed in homes which weren't licensed. But there obviously would have been no reason for Congress to include that alternative provision unless it intended that children place in relative homes would be eligible for the Foster Care program. Fourth point in the statute, which I have emphasized, we do discuss others in our brief but the four points in this statute would emphasize this Section 402(a)(19)(f) which we discussed at length in our brief and I wont review that in detail here but that does constitute a specific congressional recognition of a relative home as a foster family home.
Warren E. Burger: Probably not relevant but suppose a child was placed in one of the institutions. The institution was run by the grandmother of the child, what would that enter into? As distinguished from a private home of the grandmother, it's an institution where they got 40 or 50 children or a 150 that happens to be run by the grandmother of the particular child.
Robert E. Lehrer: Well, the state is given authority under its licensing standards to approve certain classifications of individuals as suitable caretakers or not. A state might well decide and precisely right Mr. Chief Justice Burger, it's precisely not the question presented in this case. A state might decide that for purposes of institutional care, it might not be appropriate to have a grandmother or any relative care for that child in that setting because she might show favoritism, maybe against the child or maybe for the child. The question is not presented in this case about whether a state might deem relatives to be not suitable caretakers. Illinois does deem relatives to be suitable caretakers. Hope that has answered the question but Section 402(a)(19)(f) which we discussed at length in our brief, you first specifically to continuing either protective payments or foster care payments to a child in the home, in a home of a relative who refuses to cooperate in the win program. It didn't mean to suggest in the brief that the state might not make other alternative dispositions with respect to a child in a home of a non-cooperating relative but that provision does limit the states' remedial action to a dependent child to either continuing foster care in a home of relative or it's going to continue AFDC outside the home to a -- limiting it to foster care which must mean that it must be continued in any home in which the child is placed and that does constitute a specific congressional recognition of a relative home as a foster family home. Finally, HEW's administrative interpretation of the statute unequivocally supports the conclusion that the children here are eligible for federal Foster Care benefits. We have not emphasized it here because it emphasizes itself. It is the interpretation by an agency which is charged with enforcing the foster care statute and indeed was at least cooperated in proposing and establishing the Foster Care program in the first instance. Moreover, this interpretation has been a matter of public record and prominently so for over four years --
William H. Rehnquist: How many years are left between the enactment of the statute and a promulgation of the regulation?
Robert E. Lehrer: Fourteen years and I think the reason why there was a lapse, why there was not an articulated policy prior to ‘74 though the Solicitor notes the operative policy. It was in fact in effect prior to ‘74. The reason why it is, it supports, again, the conclusion that the children here are eligible it's precisely because the fact of whether children were placed in relative homes or non-relative homes is really irrelevant to the Foster Care program in the sense that the states are given, the placement authority. Congress in the foster care statute delegated the states the right to make that placement which it deemed to be in the best interest of the child. So, the Federal Government wasn't reviewing these individual placement decisions. This is not like the ordinary situations where it sometimes comes up in AFDC cases wherein the state plan one must specify that you're not providing benefits to children, let's say, between 18 and 21. There was no necessity or need for the states to make that specification, so there would have been no HEW review to those kinds of decisions and it only came to light I think when following two District Court decisions, Federal District Court decisions in early 1971 which brought this fact that a few states were not considering children placed in related care to be eligible. And at that point, HEW fairly promptly issued an instruction mandating what the proper interpretation of the Act and its own regulations was. In conclusion, Section 408 in common sense, common sense in terms of what Congress must have intended in light of the primary purposes of the AFDC program and in light of the traditional suitability of relative care in our society which the state policy here frustrates and deters. The statute itself, in common sense, point decisively towards that reading of Section 408 making the children here eligible for foster care and decisively against the conclusion, the Congress meant to discourage the care of neglected or abused children by their relatives and deny them the higher benefits and specialized social services which were necessary to remedy the abuse and neglect to which they have been subject. The Department of Health Education and Welfare says that, that reading of the statute making the children here eligible is the correct reading. It is the correct reading and it is for that reason that the Court of Appeals decision should be affirmed. Thank you.
Warren E. Burger: Do you have anything further counsel?
Paul J. Bargiel: I would like to make one brief comment for rebuttal.
Warren E. Burger: All right. Very well.
Paul J. Bargiel: I would simply like to reaffirm that our position that unrelated persons are not eligible for foster care. It is based upon the plain meaning of the language employed by Congress in the statute. Eligibility is defined in terms of a dependent child or families with dependent children, not in terms of foster care. Foster care is the thing that a dependent child or an eligible family or eligible for and that's the thing that the plaintiffs overlooked. I would like to point out one, if I may, one thing that the plaintiff's reading of this statute could result in which Congress obviously never intended. Section 606 which provides a specification of certain relatives includes as a relative specified relative, a mother or a father, that is a child can be living with his mother or father or certain other relative and be eligible for basic AFDC assistance. If a brother or a sister can be a foster parent under Section 408 then there is no reason that a mother or a father cannot be a foster parent if they otherwise meet the eligibility criteria because they are also one of the specified relatives contained in Section 606 which Section 608 is written notwithstanding or in spite of. So, I would suggest to the Court that the plaintiff's construction of this statute would result in at least that foolish result and I would again respectfully request that the Court reverse the determination of the Seventh Circuit Court of Appeals.
Warren E. Burger: Thank you gentlemen. The case is submitted.