William H. Rehnquist: We'll hear argument now in No. 02-1343, Engine Manufacturers Association and Western States Petroleum Association v. the South Coast Air Quality Management District. Mr. Phillips.
Carter G. Phillips: Thank you, Mr. Chief Justice, and may it please the Court: In 1967, Congress enacted section 209(a) of the Clean Air Act, which is reproduced in the petitioners' brief at page 1. That statute prohibits States and their localities from adopting or attempting even to enforce, quote, any standard relating to the control of emissions from new motor vehicles or new motor vehicle engines. In this case, a political subdivision of the State of California has adopted fleet rules that prohibit the purchase by certain fleets of various classes of...  of vehicles that are otherwise certified for purchase in the State of California and, indeed, have essentially precluded the purchase by those organizations of diesel-fueled vehicles in toto.
Sandra Day O'Connor: Mr. Phillips, this is a facial challenge?
Carter G. Phillips: Yes, Justice O'Connor, it is a facial challenge.
Sandra Day O'Connor: Claiming total preemption.
Carter G. Phillips: Yes, claiming total preemption.
Sandra Day O'Connor: What if we were to think that at least as applied to the district's own purchases of vehicles, that it could limit itself to what kinds of vehicles it wanted to purchase and therefore is valid at least in part?
Carter G. Phillips: Well, the...  there are two answers to that. One, the district doesn't need a statute in order to purchase its own vehicles. There is no basis for adopting a standard that controls that particular situation.
Sandra Day O'Connor: Well, but let's suppose it wants to establish a standard to apply now and in the future for itself and for any other jurisdiction, public jurisdiction, within its area?
Carter G. Phillips: Well, if it goes beyond...
Sandra Day O'Connor: If it's authorized to do that.
Carter G. Phillips: Well, if it goes beyond what it wants to purchase itself and imposes requirements on others, then it seems to me that's a standard that falls within the ambit of the preemption.
Anthony M. Kennedy: What if...  what if the State...  what if the State of California says that all of our officials, including the Governor, shall have a low emissions vehicle?
Carter G. Phillips: I think that...  that there is a serious question as to whether or not that would be preempted. I...  I don't think it's presented, obviously, by the particulars of this case. I mean, it still look...  sounds like a...
Anthony M. Kennedy: Well, but it seems...  it seems to me that...  that it is from...  from the standpoint of...  of governmentally owned and operated vehicles.
Carter G. Phillips: Well, I think the answer to the question at the end of the day, Justice Kennedy, would be that you would require a clearer statement from Congress than what you have in section 209(a) to interfere with the kind of purchasing decisions that localities are...  are making in contrast to this.
Antonin Scalia: Right, but...  but it seems to me not...  not an answer to Justice O'Connor's concern to say that it goes beyond the particulars of this case because when you make a facial challenge, you are going beyond the particulars of this case.
Carter G. Phillips: Well, I understand that, Justice Scalia. Well, there are two answers to that, one that I was trying to answer before which is I don't think that this provision actually covers that particular situation because you don't need this provision in order to have authority as a local jurisdiction to make purchases on your own as to what you're going to buy. That's not, I don't think, a standard within the meaning of the statute. But second of all, I also don't think that the...  it must be unconstitutional in all respects as the controlling standard of law in this particular context either. It is clear that there is a significant component of this...  of these fleet rules that is preempted, and perhaps all of them are preempted. But we were dismissed out at the earliest stages of these proceedings without an opportunity to demonstrate the metes and bounds of the regulations as they would particularly apply at this...  at...  at this particular juncture.
Stephen G. Breyer: No, but we may...
Anthony M. Kennedy: I'm still not sure...  sure where we are. It...  it seemed to me that the regulation talks about some private vehicles, trash hauling and airport shuttles, but it also talks about exclusively governmentally owned vehicles. And it seemed to me that the State can do whatever it has...  whatever standard it wants for its own vehicles.
Carter G. Phillips: Well, our...  our challenge is not intended, frankly, to interfere with the local jurisdiction's ability to purchase their own vehicles on their own behalf.
Stephen G. Breyer: Local jurisdictions. I mean, you know, what's that? Are you saying that it is a standard if the City of Los Angeles has a regulation through the city council that applies to the purchasing of every little local area? Or suppose the State of California has a general regulation respecting only governmental purchases. Are you saying right now that all those...  in other words, rules, regulations, standards, practices by the State of California or some part thereof...  that does nothing more than control purchasing by governmental units of that State is fine?
Antonin Scalia: They can do that.
Carter G. Phillips: Yes. That's what we're saying.
Anthony M. Kennedy: All right.
Carter G. Phillips: We don't...  we don't have any challenge to that.
Stephen G. Breyer: In that case we're now down to the possibility that we're talking about some garbage trucks, I think, and some airport vehicles because I think all the rest of it did just involve the State.
Carter G. Phillips: Well, it's difficult to know precisely what the metes and bounds of it is, but the portion of this that offends us and the portion that we think does not require a clearer statement, which is that which goes directly to non-governmental entities. If...  if you're talking about regulating the purchasing choices of pure governmental entities, then you expect Congress to speak with a...  with a clearer voice. But the purpose of these fleet rules is not simply to restrict the purchases by governmental entities. It is quite clear that the purpose of these fleet rules is to regulate the purchasing choices that are made with respect to a much broader scope of purchasing entities, including private entities, and it is that portion of the regulation, frankly, that we are challenging and challenging on its face.
Ruth Bader Ginsburg: Mr. Carter, if these regulations had been adopted by the State of California rather than a regional district as its 246, in...  in lieu of the Federal plan, would that have been permissible?
Carter G. Phillips: Assuming, Justice Ginsburg, that you...  that California took...  complied with all of the requirements of section 246, and there are specific requirements in order to get a...  in the...  in the State action plan that...  State implementation plan that need to be satisfied. But to be sure, the Congress clearly envisioned that for States with nonattainment problems, that they would be able to use fleet restrictions as a mechanism for promoting their overall emissions quality.
Ruth Bader Ginsburg: So your objection is to this on a regional basis. Statewide you say is permissible provided you follow...  I guess you need EPA approval?
Carter G. Phillips: Yes, providing you comply with the standards of section 246.
Ruth Bader Ginsburg: But...  so...  but the substance of it would be okay statewide. So...  so...
Carter G. Phillips: Well, I don't know if the precise terms of this...  of these rules would qualify under section 246 or not. Nobody has actually analyzed that point, but the truth is it's clear that you could have certain fleet rules implemented that are consistent with section 246. But realize, Justice Ginsburg, that what...  by saying all our concern is is that every...  every one of thousands of jurisdictions can impose purchase and sale requirements on vehicles...
David H. Souter: Well, it's not sale requirements. It's a purchase requirement.
Carter G. Phillips: Well, under the respondents' theory of this case which limits the term standards to production mandates imposed on manufacturers, then it seems to me that it clearly extends to all purchases and sales and whether it extends to fleets, it wouldn't...  it's not limited to fleets at all. Under the respondents' theory of this case, the field that has been preempted here really is limited to the manufacturers. And to allow every local jurisdiction to come in and bring forth additional requirements is to make a hash out of a scheme that was clearly designed to create a unitary market for the manufacture, sale, purchase, and licensing of new motor vehicles.
Anthony M. Kennedy: Well, if...  if one local jurisdiction affects other governmental jurisdictions, but the latter don't care, then it's just as if, as the hypothetical just posed, the State had the...  had...  had the rule. Is there sort of an ultra vires component to your argument that this...  that this district here is affecting what other governmental entities can do and that's the problem?
Carter G. Phillips: Well, this Court has long recognized that you can't analyze a preemption case solely on the basis of the single action by a single actor, that in fact you have to consider the possibility that all 50 States or, in this case, every local jurisdiction could follow suit. And remember, it's not just follow suit with respect to this kind of fleet rules under the respondents' theory of this case, which is that all purchase and sale restrictions...
William H. Rehnquist: Well, I...  I had not understood your argument to be based on any conception that this particular district would be treated differently than the State as a whole, but I...  I...  am I wrong in that?
Carter G. Phillips: Well, the State of California would have certain prerogatives, obviously, under the entire scheme that are different, but even if California had simply done what the district did here, which is to just announce a set of fleet rules, not made any effort to comply with 246, not made any effort to comply with section 209(b)...
William H. Rehnquist: Well, what...  what does...  what does 246 provide?
Carter G. Phillips: Section 246 provides that in certain nonattainment States, one of the options they have available in order to eliminate the overall...  or to...  to improve the overall ambient air quality is to adopt certain types of fleet rules. And the provision is very lengthy. It's very detailed about...  and you have to include that in your State implementation plan. What California did was it used the substitute route and adopted its LEV rules saying that those would be equally effective.
William H. Rehnquist: So it didn't comply in your view with 246.
Carter G. Phillips: Oh, it clearly didn't comply. I don't think there's any question that California has made no effort to satisfy the Clean Air Act with respect to this. But this Court...
David H. Souter: Your...  your argument, as I understand it, going back to your answer to Justice Ginsburg, is that although there is an avenue for the State, as it were, to get where...  where it might want to go on a...  on a fleet policy under 246, the district simply does not have that avenue open to it.
Carter G. Phillips: Yes, that's absolutely clear.
Sandra Day O'Connor: Yes.
Carter G. Phillips: And that's...  and that's part of the way this entire scheme operates.
Sandra Day O'Connor: But that gets me back to my question. If we disagree with you, to the extent we think some application of the district's fleet rules are not preempted, then how does that leave your challenge, which is a facial one?
Carter G. Phillips: Well, I...  I think the answer is that there are various components of the fleet rules, and I think unlike if you're...  if you're seeking pre-enforcement of a statute, where you'd have to find every application of it, the question is are there subcomponents of these rules that are properly challengeable and therefore properly enjoinable rather than being allowed to go in. I don't...  I don't understand...
Antonin Scalia: That eliminates the doctrine entirely, I mean, the doctrine that facial challenge has to show the statute is...  is invalid in all its applications. You could always say, well, we're not challenging all of its applications. We're...  we're just challenging this particular set of applications. I mean, that...  that...
Carter G. Phillips: Well, no, Justice Scalia, I think it's a little more complicated than that because what you're really talking about is a...  is a host of rules. And if you look at the appendix to the respondents' brief with all of the rules that are laid out there, there are literally dozens of rules. And in order to challenge the, quote, fleet rules in the sense of recognizing that there are clearly areas of those rules that intrude into preempted Federal activities, it doesn't seem to me that you have to challenge the entirety of the rules. You should be entitled to pick those rules that you're going after and a complaint and go forward. And that's...
Antonin Scalia: But...
Carter G. Phillips: that's what we've done. I understand if you have a simple unitary statute that you're challenging, the Salerno rule may suggest that the statute has to be unconstitutional in all its respects, but if you adopted a rule that if part A is good and part B is not good, you should be allowed to...  to challenge part B facially without worrying about part A.
David H. Souter: But I thought...  I thought this was the case in...  in which part A applies both to the district, as in Justice O'Connor's question, and to non-governmental entities so that it's not that A applies to...  to one kind of buyer and B to another. There's a...  there's a rule that applies to buyers. And Justice...  and correct me if I'm wrong. Justice O'Connor's question in effect says, if there is a substantial...  if there is an application of that rule that in a substantial number of cases at least would not be preempted, then isn't that the end of the facial challenge?
Carter G. Phillips: And my answer to you is I don't think that's the proper application of Salerno and I don't...  I mean, I recognize...
David H. Souter: I'm not applying Salerno. I'm...  I'm applying a substantial application rather than a one-instance kind of rule. And...  and your answer to that was, well, we don't have to challenge all rules. We could challenge A but not B.
David H. Souter: And my response is the rule that covers the governmental situation and the private situation is the same rule, and if that rule has a substantial number of constitutional applications or...  or non-preempted applications, doesn't that, in...  in effect, defeat the facial challenge?
Carter G. Phillips: Well, except for the fact that if...  if we don't get past the ruling of the court below at this stage, which is that none of this is preempted, that...  whether it's a facial challenge or a non-facial challenge, we're going to have rules that are out there that are being implemented at this stage and will be upheld as constitutional under the Ninth Circuit's ruling as the...  as the controlling rule of law, and we won't be in a position even to get at any portion of those rules that are clearly unconstitutional because they...
Stephen G. Breyer: You can, can you not...  I'm just trying to draw this back because it seems to me you're not challenging the public part. So if you're not challenging the public part, then...  I've looked at pages 7 and 8 of the SG's brief where he's listed these rules.
Carter G. Phillips: Right.
Stephen G. Breyer: And I take it what you're challenging is rule 1194 insofar as it applies to private operators.
Carter G. Phillips: Right.
Stephen G. Breyer: Rule 1193, the same, and rule 1186.1, the same, and nothing else.
Carter G. Phillips: I think that...
Stephen G. Breyer: In each of those rules, having looked at them, it does say at the beginning, these apply to public and private. So I take it it's those two words, and private, written in the text of those rules that you're challenging.
Carter G. Phillips: That...  that is our...  I mean, our primary concern. The...  the problem here is...
Stephen G. Breyer: Well, but that's what you're challenging, nothing else.
Carter G. Phillips: Right. Well, I mean, the question is whether or not...  I mean, I'm not sure that is precisely what we're challenging. It seems to me there is a difference between a public entity deciding on its own...
William H. Rehnquist: Yes.
Carter G. Phillips: that it will make a certain purchasing decision as a purchasing decision. There is a fundamentally different proposition when another entity demands that it must make a purchasing decision based on emissions control.
Stephen G. Breyer: What do you mean? Another public or private?
Carter G. Phillips: A public entity.
Stephen G. Breyer: Oh.
Carter G. Phillips: What I was saying is...  what...  what I meant to answer your question earlier, Justice Breyer, was to say if you're asking me can public entities make purchasing decisions free of the restrictions of the Clean Air Act, I think the answer is yes because I don't think Congress spoke to that. But if what you're saying is can a...  can one governmental entity demand that another governmental entity make a decision for purely environmental reasons and not as a...  as a contracting matter, no. That seems to me is still a standard...
Stephen G. Breyer: Well, now just let's think...
Carter G. Phillips: that controls emissions and is unconstitutional.
Stephen G. Breyer: of the complexity of State and central government in light of what you just said. You're saying that the State of California board A couldn't say all the...  I mean, I don't know where to go with this. Do you see...  do you see the problem?
Carter G. Phillips: No, but the...  the problem is much simpler than that, Justice Breyer, because there's a scheme in place where if you don't like the way the regulatory arrangements are worked out, you can take the issue to California and California can take it to the EPA. I mean, the whole purpose of this enterprise was to devise a unitary market and make it very simple. And there's nothing in the...  in the suggestion that...
Anthony M. Kennedy: the merits.
Stephen G. Breyer: My problem is to try to figure out what's being challenged.
Carter G. Phillips: Well, we're challenging the effort by the district to impose these kinds of requirements, these standards which control emissions.
Stephen G. Breyer: On its...
Anthony M. Kennedy: But if California...
Carter G. Phillips: On everyone.
Anthony M. Kennedy: if California accepts that as a matter of its domestic law, who are we to say otherwise?
Carter G. Phillips: Well, because that's what the Clean Air Act is all about. California is free to do that if it complies with section 209(b) which says you can obtain a waiver. You can make these the Federal standards. I mean, there's no question that these fleet rules could have been adopted by the State of California and be approved by the EPA and be operating completely tomorrow if they want to go through that process. That's the specific process Congress had in mind, a process that the district has abandoned. And all we're suggesting is that's what they ought to do. Mr. Phillips, I don't want to intrude into your time, but I...  I hope you have time to comment on your adversary's argument that the word standards just refers to numerical figures and so forth and that you...  you have a...  it means the same thing when the government is...  Federal Government is implementing its own issues and it is in this provision. Do you...  do you have a response to that basic argument? So there...  there are two answers to that. One, section 202 is not limited to production mandates, those kinds of numerical standards, even...  even within 202. And second, the language that...  that Congress used about standards relating to the control of emissions is inherently broader than 202 in any event, and if you expected 209 and 202 to be read in para materia, you would have expected Congress to cross reference.
John Paul Stevens: Because they were enacted at different times, I think, the two sections.
Carter G. Phillips: They were enacted at different times.
Anthony M. Kennedy: Yes.
David H. Souter: What about the distinction between standard and requirement?
Carter G. Phillips: Well, the use of requirement in the second sentence is simply a recognition that there could be standardless requirements imposed by States requiring a certification or some other kind of documentation that don't have standards. So the first sentence deals with standards and the second one deals with standardless obstacles to implementation. If I could reserve the balance of my time.
William H. Rehnquist: Very well, Mr. Phillips. General Olson, we'll hear from you.
Theodore B. Olson: Mr. Chief Justice, and may it please the Court: The South Coast rules prohibit the purchase of certain motor vehicles and require the purchase of others based on explicit emission standards. Under respondents' reasoning, every other State and local government agency in the United States could adopt its own individual and unique blend of prohibited and permitted motor vehicles. But...
Antonin Scalia: General Olson, does...  does the Government take the position that petitioner has just taken, that these rules are invalid even insofar as they apply to governmental subdivisions in California?
Theodore B. Olson: I think the answer is...  is no, but let me explain, that to the extent that agencies of government, the State or subdivisions, are purchasing their own vehicles, we do not contend that that is unconstitutional. They can purchase...
Sandra Day O'Connor: No, no.
Antonin Scalia: I'm not talking about whether their doing of it is unconstitutional. Whether the State's...  whether the State's prescribing that they do it violates the statute.
Theodore B. Olson: Our...  our position...  I don't...  I'm not sure I know the answer to that because I don't know what authority this agency has with respect to requiring different units of...  of the government of the State of California to purchase or not purchase vehicles. And it hasn't...  it's not a subject that was briefed, if at all, extensively in the briefs. But the...  the force...  the force of the preemption provision here is that Congress determined that there should be a uniform standard with respect to controls on the emissions of motor vehicles. California was given an exception provided that certain requirements were met. This is in section 209(b) that these provisions be submitted to the EPA and approved under a process that's open and transparent and allows the national agency to make sure that there are uniform standards that can be met that also comply with the requirement that the national economy not be disrupted, so that there would be different...  by different standards in every little community of the United States. That's the thrust...
Ruth Bader Ginsburg: Has it happened, General Olson? One pier that you raise is if...  that...  if this district can have these fleet rules, so can every district in the country, and these...  these rules have been in operation now for some years. Have other districts in other States copied what this one has done?
Theodore B. Olson: Not that I know of. They've...  they've only been in existence since the year 2000. The...  the district was given the authority to adopt these rules in 1987, if I'm correct, did not adopt them until the year 2000. The arguments...  the principal arguments that are made by respondents that standards are production mandates finds no basis in the statute. The language of section 202 or section 209 is not so limited. The...  what...  what section 202 and 209 do, talk about emission levels or emission standards. And there should be no mistake about it. These fleet rules are directly related to emission standards. One of them, for example, rule 1194, uses the phrase, emission standards, 12 times and it requires all purchasers to be vehicles that meet certain emission standards, adopting by reference the State of California CARB rules. It picked out a subset, as the respondents put it, of one in column A, two in column B, no diesel. There must be some clean fuel. It's another...  it's a totally different package. And Palm Beach County or...  or Waco...  the City of Waco could do something exactly like what the respondents are contending because they say the controls with respect to emissions don't apply if they're purchasing requirements. EPA, in fact, enforces the standards that it adopts under section 202 pursuant to the provisions of 203 by restricting the sale or introduction into commerce of motor vehicles and under section 219, under certain circumstances, the purchasers of fleets, bus fleets. So the implementation of the limitations that...  that...  the standards that EPA adopts are through purchase restrictions or purchasing restrictions. They're not production mandates. It's my understanding and I'm informed that the EPA has never implemented the Clean Air Act with respect to production mandates. They say what can be sold or what can be purchased.
Sandra Day O'Connor: But...  but, Mr. Olson, why can't a local agency or community decide it's going to buy vehicles and will buy no diesel vehicles? And why is that the imposition of a standard?
Theodore B. Olson: Well, it is not...  we...  we are not contending, Justice O'Connor...  I want to make it very clear that local agencies, San Francisco or Los Angeles, can put for their own vehicles anything they want. This district...  I...  the...  the...
Sandra Day O'Connor: Well, does this district have the authority to so provide for its own purchases?
Theodore B. Olson: For its own purchases. If it...  I don't know whether it does or not. This is a quality control district. I don't know how many vehicles they have.
Sandra Day O'Connor: Does it have authority to...  to make that requirement for cities within its jurisdiction?
Theodore B. Olson: We don't think that it has the authority to require other governmental agencies based upon emission standards to do something.
William H. Rehnquist: Well, that's a matter of State law.
Theodore B. Olson: That is a matter of State law, and it's...  and...  and what we're talking about here is the requirement by particular agencies to pick out different types of motor vehicles that may or may not be sold.
Anthony M. Kennedy: Well, I suppose the separate States could do that for its own purchases.
Theodore B. Olson: For their own...  for their own purchases, Justice Kennedy.
Anthony M. Kennedy: All right.
William H. Rehnquist: they can't...
Anthony M. Kennedy: And could they also do that for all their governmental subdivisions? The State of Nebraska says that the State and all of its subdivisions will have some very strict standards...
Theodore B. Olson: I agree with the...  with the way that the Chief Justice put it, that that's their own purchasing decisions, and it's a matter of State law as to whether they can...  but that is not what this case is about. This case is about whether the South Coast district can impose those standards, including Federal Government vehicles, postal vehicles, FBI vehicles, private vehicles that go to the airports and so forth. And the justification that they say is that we can control the sale of motor vehicles willy-nilly by...  by controlling the purchase. By controlling the purchase, you control what can be sold and thus can what be manufactured. They are claiming an authority in southern California that they...  that they claim the EPA doesn't even have.
Antonin Scalia: Maybe, but most of what it covers is simply the...  the purchase by governmental units. If you acknowledge that the State can require its subdivisions to...  to purchase only certain kinds of vehicles, as you've just acknowledged, why can't the State create a district as here and allow that district to require...
Theodore B. Olson: Justice...
Antonin Scalia: subdivisions to purchase only...
Theodore B. Olson: From the standpoint of the United States Government, we're not contending that the State or an individual can choose whatever vehicle he or she or it wants to purchase. What we're contending is that the whole scheme of the EPA and the Clean Air Act and the...  and the preemption provisions prevent different agencies by using the...  the mechanism. The entire argument that respondents advanced here, by using the word...  by...  by prescribing what can be purchased, they can...  they can control what vehicles will exist and what vehicles will be run. It isn't limited. The authority that they're claiming isn't limited to their own vehicles. This same authority...  they would make the same arguments if the South Coast District said all persons or all persons that have more than one vehicle or all persons that live in a certain portion of southern California. The authority that they claim by using the word purchase, which is not in the statute, is not in the preemption provision, and is an authority that the...  the EPA specifically uses to a certain extent under section 219...
Ruth Bader Ginsburg: General Olson, you mentioned that there are Federal vehicles involved, postal vehicles, but you also are stressing purchase. Suppose the Federal Government buys its vehicles that it's going to operate in California in Nevada. These rules wouldn't apply. So the...  the United States is not inhibited in any way in its purchases, is it?
Theodore B. Olson: Well, A, I think that is an inhibition. B, I think the respondents will say that these...  these purchasing requirements are imposed upon fleet owners that...  that requires them to make purchases of certain vehicles. So I think the premise of your question is not correct. If southern California or if the State of California wishes to impose fleet requirements, there is a mechanism. It's a logical, consistent, transparent, open mechanism under...  that was thoughtfully put out by Congress. The whole mechanism is thoughtfully calibrated by Congress to allow the EPA to make judgments. Does this make sense from a national standpoint? Will this make sense from other States' standpoints? Is it...  will it impose a dislocation on the marketplace for motor vehicles? The twin objectives of the Clean Air Act are, one, to produce cleaner air, but two, to do it in a way that does not disrupt the national economy and the marketing of motor vehicles, which is an important part of the economy of this Nation.
Antonin Scalia: Just so I have it clear, because it...  this is very important to me. It's your position that the State may require municipalities only to buy certain kinds of cars.
Theodore B. Olson: To the extent that...  yes. I'm...  because I don't know the answer to the State law question that the Chief Justice alluded to. Assuming that the State of California was one and the same and decided that it owned or had the authority under State law to purchase those vehicles, the answer would be yes.
William H. Rehnquist: Thank you, General Olson. Mr. Waxman, we'll hear from you.
Seth P. Waxman: Mr. Chief Justice, and may it please the Court: The question in this case is whether section 209(a) of the Clean Air Act, which is reproduced at page 36a of our brief, preempts very modest fleet purchase rules which apply only to vehicles that are already commercially available, that is, that cannot have an effect on manufacture...  cannot require manufacturers to produce or sell anything, and which were adopted by a unique airshed in which 90 percent of all toxic air pollution derives from motor vehicles. And the answer to that question is no because the text and the context of the Clean Air Act, title II of the Clean Air Act that deals with motor vehicles, show that Congress intended the word standard in section 209 to be used in the same way that it is used in section 202 and, indeed, throughout the entirety of title II...  title II. It's used 100 times, I'm told by an amicus, in section 202 alone, and every single time that it is used there, it is used to refer to an obligation placed on manufacturers, that the vehicles they produce and sell meet specified emissions characteristics. No one contends that that definition, the way the word is used in section 202, covers the rules in this case. Now, express preemption...  it requires discerning Congress' intent. It's not an exercise in definitional possibilities, this Court has reminded us many times. Now, you can read every brief from our opponents. Every different brief offers up some other definition, and their briefs in related cases have done the same. And we've heard no definition this morning. They look to the dictionary definition of standard or criteria or test, and they're reproduced in their briefs. But they...  they concede that there is no dictionary definition that they offer that coincides with the rule that they seek because they concede that Congress did not intend to cover incentive programs or tax programs even though, like purchase rules, they operate through the market on manufacturers and not directly on manufacturers.
Stephen G. Breyer: Suppose that California passes a law and says no one can sell a diesel bus in California.
Seth P. Waxman: Well...
Stephen G. Breyer: Clearly you'd have to go get permission if you want a rule like that. Right?
Seth P. Waxman: A...  a rule that...
Stephen G. Breyer: The rule is exactly what I said: no one can sell a diesel bus in California
Seth P. Waxman: A...  one could...  I believe that a good argument could be made that that rule is preempted because it conflicts with the overall purposes of the Clean Air Act. But...
Anthony M. Kennedy: Yes.
William H. Rehnquist: I mean, you'd have to go to EPA.
Seth P. Waxman: But, Justice Breyer, please let me finish.
Anthony M. Kennedy: Yes.
Seth P. Waxman: This is a very important point. The challenge here is that these rules are expressly preempted...  it's in the question presented in the petitioners' brief...  expressly preempted by the first sentence of section 209(a), and it is expressly preempted because these are standards. And our submission is...
Stephen G. Breyer: I'm...  for purposes of my question, I'm rejecting that argument. I'm trying to figure out what is the correct way of dealing with the statute.
Seth P. Waxman: Yes, and...
Stephen G. Breyer: And where I was going, if you want to see, I'll show you because then you...  it...  it seems to me clearly you'd have to ask question...  nobody can sell a diesel bus in California. You have to get permission from EPA. Second, they change it. No one can buy a diesel bus. All right? It's the same. Third, they say no governmental unit can buy a diesel bus, but it turns out that the only buses anyone has ever bought or sold in California are diesel units. And it's at that third point that's bothering me because it seems to me whether it's preempted or not turns upon the effects. Have you, in effect, required the manufacturer to change its assembly line or not? And I don't know where to go with that. That's what I'm posing.
Seth P. Waxman: Here is my...  here is my first effort at an answer. The word standard, as it is used in 202 and in the other provisions of title II that deal with different types of standards, the standards with respect to fuel, standards with respect to buses, standards...  standards in section 243 that deal with the Federal clean fuel purchase program, are all obligations that are placed directly on manufacturers. The Congress and the EPA recognized when section 246 was enacted, which is the Federal fleet purchase program...
John Paul Stevens: Mr. Waxman, can I interrupt you just a moment? You say there are obligations that are placed on the...  which is also true. But the word standard as used in the statute over and over again refers to things that are express in terms of so many units per mile and so many...  so forth and so on. The term standard, it seems to me, refers to the...  the numerical definitions rather than to how they're enforced or implied.
Seth P. Waxman: Well...
John Paul Stevens: I think it may well be they're...  and...  and we don't have to worry about the enforced or implied in the terms that a statute because all it has to be that...  the only prohibition is against anything relating to a standard.
Seth P. Waxman: No, it's...
John Paul Stevens: And if the standard is limited to the numerical term...  I don't find in the text of the...  of any part of the statute here your...  your point about enforcement against. That's...  that's what...  what is done with the standard. It's not what the standard itself is.
Seth P. Waxman: Justice...
Antonin Scalia: I have the same problem, if I could second it. It seems to me the fact that you use standard 99 times in discussing manufacturing standards doesn't mean that when you use it a 100th time to refer to some other aspect of the whole thing, it must refer to manufacturing. It just doesn't follow.
Seth P. Waxman: I'll try...  I'll be efficient and try and answer two questions at once then. First of all, 209 doesn't refer...  doesn't prohibit anything relating to a standard. It prohibits standards relating to motor vehicle emissions just as section 202 in the very first sentence authorizes the Federal Government to promulgate standards applicable to the emission of motor vehicles. Now, standards, as the word is used in 202 and throughout title II, refers to emission characteristics or the obligation of manufacturers to sell and produce cars. If you look at section 202(g) or 202(h) and 202(i), for example, those are instances of subsections where it is used not just to refer to the emissions characteristics themselves, but also the obligation on manufacturers and sellers. And in fact, if you look at section 203 of the act, which is called Prohibited Acts...  it's the enforcement provisions...  it is directed at manufacturers and sellers.
John Paul Stevens: I agree with you completely that the statute imposes these obligations on the manufacturers to comply with the standards. But the word standard is...  is a different concept from the obligation to comply with the standard.
Seth P. Waxman: Well, I think the...  the word standard...  I'll...  I'll say this one more time and then retreat to another...  another argument. The word standard, as it is used, for example, in 202(g), is used both to refer to the emissions characteristics, numerical or otherwise, and an obligation placed on manufacturers and sellers to do something about that. And the...  let me...  let me give you my second line of argument here...
Anthony M. Kennedy: Excuse me.
Antonin Scalia: Now you say it's not just manufacturers. It's manufacturers and sellers. I thought it was just manufacturers.
Seth P. Waxman: Well, there are provisions in section 203, which is the Prohibited Acts, that it...  it is imposed on the people who make cars and requires them or limits them in what those people can make.
Antonin Scalia: I mean, it...  it's hard enough to say that the word standards on its own is automatically limited to manufacturers, but it's doubly hard to say it is limited not to just to manufacturers, but to manufacturers and sellers, but not to manufacturers, sellers, and purchasers.
Seth P. Waxman: It...  it is...  Justice Scalia, there is a provision in section 203 of the act, the Prohibited Acts, that deals with the instance in which a manufacturer, for example, produces cars overseas and then tries to sell noncompliant cars through a distributor or some other entity. Those people are covered. But when Congress considered in 1990 its own fleet purchase rules, we're talking here about very limited fleet purchase rules that...  talking about my rules...  have a commercial availability exception. They do not...  they cannot be read to require manufacturers to make anything they don't make or sellers to sell anything they don't sell.
William H. Rehnquist: Yes, but as soon as there's...  as soon as there's one commercial vehicle available, that's going to have effect on the manufacturing.
Seth P. Waxman: Well, there may be...  the...  the vehicle has to be...  the rules make quite clear that the vehicles have to be available and able to be used by that user in the locality, the fuel...
William H. Rehnquist: And you...  and you have to get...  apply for an exemption which the petitioner says is very difficult to get.
Seth P. Waxman: There...  the petitioner does not say it's very difficult to get, and that footnote 7 on page 8 of their brief is truly the 13th chime of the clock in their argument. The...  if we had to establish a factual record in this case...  and there is none...  I am told by my client that these exemptions are sought for some of these rules never because the vehicles are...  are readily available, for example, with respect to street sweepers, and on other vehicles, they are readily given. If somebody...
Antonin Scalia: What's...  what's that 13th chime? I lost you. I thought you said...
Speaker: [Laughter]
Seth P. Waxman: The 13th chime of the clock is...
Antonin Scalia: Yes, I know. I know what it is. Where is it? At page...
Seth P. Waxman: It's on page 8, footnote 7 of their reply brief.
Antonin Scalia: The reply, all right.
Seth P. Waxman: They say that, oh, well, about commercial availability, it's just not true. The district that promulgated these rules said it only applies when it's commercially available. The State that enacted a provision that authorized these rules has filed a brief in this case saying it applies only when it's commercially available. No one in this case or any other case has ever argued that that commercial availability exemption doesn't exist until footnote 7 of their reply brief, and it is simply wrong. But my point generally about the...  the meaning of the word standard in the Federal act, title II, is in 1990 Congress enacted its own fleet purchasing rules, and they are codified in...
William H. Rehnquist: When you say its own, you mean fleets that were going to serve Congress?
Seth P. Waxman: No, no. Congress put into...  amended the Clean Air Act to require certain States that have nonattainment areas to include within their State implementation plans either a fleet...  a set of fleet purchase rules or some alternative that they would propose that would be equally efficacious in cleaning the air.
Sandra Day O'Connor: Just to be clear on your position, do you think that California as a State could enact a law saying that no purchaser of a motor vehicle in California can purchase a gasoline-powered vehicle?
Seth P. Waxman: I...
Sandra Day O'Connor: Is that...  is that preempted or not?
Seth P. Waxman: It is not expressly preempted by section 209(a). It would be subject to conflict preemption principles, as this Court went through in Geier v. American Honda, if it could be shown that...
Sandra Day O'Connor: Well, by any theory. Is that preempted or not in your view?
Seth P. Waxman: I think...  I think it may well be preempted by...  under conflict preemption principles, not express preemption, if it could be shown that this is really a sales or production...  this is really an obligation that is masquerading as a purchase requirement. That would be the analysis...
Stephen G. Breyer: Nobody can buy a gasoline-powered vehicle in California would require the manufacturers totally to dramatically change the kinds of vehicles they produce.
Seth P. Waxman: To be sure...
Stephen G. Breyer: So why wouldn't it fall right within the word standard relating to the control of emissions for motor vehicles?
Seth P. Waxman: Because standards, as I said...
Stephen G. Breyer: That isn't a standard? What it says is...
Seth P. Waxman: Yes.
Stephen G. Breyer: It's not a standard?
Seth P. Waxman: That is correct.
Antonin Scalia: Because?
Seth P. Waxman: A standard is...  is a requirement that is imposed on manufacturers and that distinction is drawn throughout title II...
Antonin Scalia: Well, it is a...  what...  what do you do with 209(b) which says...  it...  it authorizes EPA to waive application of 209(a) in the case of, quote, any State which has adopted standards, other than crank case emission standards, for the control of emissions from new motor vehicles or new motor vehicle engines? Now, most of the States do not have automobile manufacturers located within the States. How could they possibly impose a requirement on automobile manufacturers? It is obviously referring to State standards that deal with the operators of...  of cars...  you have to go in and...  and have your...  your emissions checked...  or the...  or the purchases of cars.
Seth P. Waxman: Justice Scalia, it's...  I actually think that 209(b) is important proof for our premise that section 209(a), the word standard, has to be read...  it has to be read to be used in the same way as section 202. And clearly the way that...  when I...  when we talk about production mandates, I...  it's...  it's actually the Congress in section 249(h) used the word production or sales mandates. The EPA in its rules and in its letter that was submitted under a primary jurisdiction referral to the First Circuit talks about production requirements. It's shorthand. But I readily agree that when 209(b) or 209(a) or 202 apply...  when I'm talking about production mandates, I'm talking about an obligation that's placed on the manufacturers about what they produce and can sell. It's one and the same. There was a presumption that they would try and sell what they produced and they would produce the things that they want to sell. The point is that in...  when Congress enacted the Federal fleet purchase program, it drew a...  the same distinction that is shot through title II between standards, which has a very limited meaning, and requirements. It's a distinction that exists in section 116 of the act, which is on page 3a of our appendix, that preserves State authorities. And what Congress said and what the EPA said and what Senator Levin, who was very ably representing the interests of Detroit in 1990, said is these fleet purchase rules, because they are directed at purchasers may very well have a tremendous impact on manufacturers. They may cause a race to the top. But they are different than production standards, production mandates, or requirements placed directly on manufacturers.
Antonin Scalia: I...  I don't understand your response to my question. My question is...  you just said again, that standards always refer to manufacturing standards. But in 209(b), they clearly do not refer to manufacturing standards. Any State which has adopted standards for the control of emissions from new motor vehicles or new motor vehicle engines. Those standards are...  are just not applied to the manufacturer. Most States don't have manufacturers that they can control.
Seth P. Waxman: Justice...
Antonin Scalia: Those standards are imposed at the purchase...  or at the operations stage.
Seth P. Waxman: They are imposed on the people who make the cars when they sell them. That's because, Justice Scalia...
David H. Souter: Why don't you just say they are imposed upon the sellers? And that's the way they get imposed upon the manufacturers.
Seth P. Waxman: I...  I wish that I could have said it that concisely, but that's the point that I'm making.
Antonin Scalia: They're not imposed upon the users?
Seth P. Waxman: They are...
Antonin Scalia: Virginia cannot impose them upon the users of cars in Virginia?
Seth P. Waxman: My submission to the Court, Your Honor, is that standards, as the term is used throughout title II, refers to the supply side of motor vehicles, the people who make them and the people who sell them, and that when Congress wanted to make a rule that dealt with purchasers, which applies only indirectly against manufacturers, it used the word requirement. And that's because...
Antonin Scalia: So that this provision in 209(b) does not authorize a State to conduct emissions tests of old vehicles that have already been sold. It has nothing to do with manufacturers, nothing to do with sellers at this point. It has to do with whether the user is keeping the emissions system in...  in proper operation. You say that is not covered by 209(b) because 209(b) does...  does not say requirements. It says standards.
Anthony M. Kennedy: No.
Stephen G. Breyer: It's not...
Seth P. Waxman: Both 209(a)...
John Paul Stevens: covered by 209(b) because 209(b) is a limitation on (a) and (a) only talks about new vehicles. So you could get around this whole thing if California adopted a rule that said any vehicle 6 years...  6 months old has to meet certain standards. The whole statute wouldn't apply.
Seth P. Waxman: Look, section...  subsection (d) of 209 applies to vehicles that are not new. 209(a) and 209(b) apply to new vehicles. What...  209(b) is the presumptive waiver for California alone of the preemption provision in 209(a). I...  I don't want to be pedantic, but let's...  we...  we started talking about 1965 and 1967, and I think it's tremendously revealing, in terms of the purposes, what Congress intended by standard in 209, to understand that in 1963 Congress enacted the first version of the Clean Air Act. And it basically didn't authorize the Federal Government to do anything other than help States do their part in cleaning up the air. That didn't work very well, and in 1965 Congress enacted the provision that is now 202 that says we are going to take from the realm of a traditional State authority this much for the Federal Government. They can and will set standards applicable to motor vehicle emissions. Now, for the intervening 2 years, the manufacturers came to Congress and said this doesn't make things better, it makes things worse because there are a number of States that are promulgating their own mandates on how we build engines and what kind of equipment we have. And in footnote 7 of our brief, we cite a report by HEW that categorizes what each State was doing. It's a 1976 report. And what they were doing was not putting requirements on purchasers. They were saying to manufacturers, if you want to sell a car in our State, it's got to have a whiz-bang or a doodad, or it has to meet the following characteristics. And the manufacturers said, we can only engineer and manufacture to one standard. So in 1967, Congress responded to that by enacting what is now section 209, and it compromised. It said, well, we're not going to make you manufacture and engineer only to one standard. We're going to make an exception for California, which was there before the Federal Government was there. But other than California, which is subsection (b), no State can do what it is that the EPA is doing in section 202. And there are a number of rules of statutory interpretation, leaving aside the presumption against preemption in this area of historic police...  State police power, that require you to read for an express preemption point, not a general, broad conflict preemption argument that is not advanced here, that the word standard is to be read as narrowly as reasonable to preserve as much for the States as possible.
Stephen G. Breyer: Is...
Seth P. Waxman: And it has to be...  it's only coherent if it means that the States are precluded from doing what EPA was mandated to do, which is to tell manufacturers, if you've got a vehicle over 6,000 pounds, it can't emit more than X, Y, and Z grams per mile. What the manufacturers cared about was that they not have to make what is...  was subsequently called a third car. They didn't want to have to build different cars and engines for different parts of the country. And that's why a rule that is directed only at purchasers and has built within it an exception for anything that is not commercially available or can't be used for the purpose that the user wants to use it for is not a standard.
Stephen G. Breyer: All right.
David H. Souter: Maybe that's...
Seth P. Waxman: It's a difficult question that...
Stephen G. Breyer: Justice Breyer.
Seth P. Waxman: I'm sorry.
Stephen G. Breyer: I want you to finish what you're doing, but I want at some point to get back to this effectiveness...  the effect thing. I don't want to cut you off.
Seth P. Waxman: Well...
Stephen G. Breyer: Maybe I'll...  do it in the order you want.
Seth P. Waxman: I'm here to answer questions, and I apologize.
Stephen G. Breyer: Do it in the order you want and you can just that I've just been off base, and I'll put out the three propositions that...  that I'm thinking. Now, you'll see it in a second. I'm thinking, one, this case isn't a big deal because all California has to do is go ask EPA and EPA is almost bound to approve whatever they want. Two, that you can't do it on language, that you have to figure out the purpose. The purpose is to stop the manufacturers from having to make different cars, and therefore, why don't you, in these circumstances, look to the effect? And...  and if in fact the effect is that they're going to have to make some different cars, it's no good. But all the examples you give in your brief, all those things are fine. They don't...  they don't involve this and...  and they're not commands. You have to go the command and have an effect. This is a command. And I don't think it does have an effect, nor do you, but they think it might.
Seth P. Waxman: I think it's...
Antonin Scalia: Well, so try it out.
Stephen G. Breyer: That...  that's...  that's the kind of thing that's going through my mind.
Seth P. Waxman: I...
Stephen G. Breyer: And now you've sort of said, no, no, you're way off base, and I want to know why I'm way off base.
Seth P. Waxman: Justice Breyer, you are not way off base. [Laughter] You're slightly off base, but not way off.
Antonin Scalia: There, there, Justice Breyer.
Seth P. Waxman: You've raised...  you've raised three points, and I'll try and address them in turn. They're...  the...  they're...  what they're saying is, look, there's no big deal because...  because this airshed, one of 33 in California, could take the concerns of its citizens...  even though it's mandated by the State to promulgate these rules, it could go to the bureaucracy in Sacramento and try and get that bureaucracy to include in its list of what it sends to the centralized command and control bureaucracy in Washington permission to enact rules that scientific studies show cause 9,000 premature deaths in the district a year. Now, it's true, but it would not avail, that is, particulate emissions from motor...  toxic emissions from motor vehicles and diesel vehicles. Now, what about Houston? Houston...  right now the South Coast is the only extreme nonattainment zone in the country, but Houston has been knocking at the door for several years. The...  the waiver provision that they're referring to in 209(b) would not avail Houston. It wouldn't avail Phoenix which has its own unique airshed problems with particulate emissions. And therefore, our submission is if it's a standard, yes. If you say this is a standard, we will go to the State of California and say please sponsor this rule and please ask the EPA to give permission for us to be able to impose these fleet purchasing rules.
William H. Rehnquist: The district could not apply directly to EPA. It would have to go through Sacramento?
Seth P. Waxman: I believe so. There is a provision in the California Health and Safety Code that says that the California Air Resources Board is the relevant State agency for purposes of 209(b). But more generally, if the...  the point here is do you determine what Congress' purpose is by the effect. That's fine.
Stephen G. Breyer: It's not determined what Congress' purpose is by the effect. You have things that you're talking about, standards telling the...  the manufacturers what to do, and then you have close-to things, things not quite that, but close to that, selling, purchasing. So there, where it's a command in this slightly different form, we look to see whether it really has the effect that the statute is aimed at preventing. And if so, go to the EPA and ask them. If not, don't.
Seth P. Waxman: No. If...  if it is a command to manufacturers with respect to emissions characteristics of the vehicles they make, it is a standard, as that term is used throughout title II. If it is directed at purchasers and, as Senator Levin and the EPA explained in 1990, only affect manufacturers and sellers through the marketplace, even though it may have a substantial effect, it is no different than the many incentives and differential tax programs that they say aren't covered. Look, California...
David H. Souter: Mr. Waxman, I think...  maybe I'm wrong, but I think the effect that Justice Breyer is thinking about is the effect of...  of being forced to manufacture the third car.
Seth P. Waxman: Yes, indeed.
Sandra Day O'Connor: Yes.
Seth P. Waxman: And...  and these...
David H. Souter: And...  and I thought your answer to that was because you don't have to buy anything that is not commercially available, that nixes the third car effect argument, and therefore there isn't preemption.
Seth P. Waxman: That is absolutely correct.
Stephen G. Breyer: No, but that's completely wrong in principle for the reason that the rules don't talk about commercial availability but in averages.
Seth P. Waxman: No.
Stephen G. Breyer: So, in fact, if they're only supposed to make three ZEV's...  see, they're only supposed to make three ZEV's. ZEV is commercially available. But you could have a rule say buy only ZEV's and that would be a major change in the EPA rule.
Seth P. Waxman: With respect, Justice Breyer...
Anthony M. Kennedy: Yes.
Seth P. Waxman: Here you are completely off base. [Laughter] The rules each...  I'm not talking about CARB's statewide standards, but the rules challenged here have an exception for anytime somebody can show that the vehicle they want is either not commercially available or can't be used. Look at page 50a of the joint appendix. The rules are all in the joint appendix. That happens to be the rule that deals with the one that my book opened up to. It's buses. And it says on page 50 of the joint appendix that this...  an exception...  an exemption to these fleet purchase rules where no alternative-fuel engine and chassis configuration is available commercially or could be used. And so this is the situation that...  our submission is that these things can't possibly have...  impose a mandate on manufacturers. And in fact, look...  we...  we discuss in our brief a little bit that California has a program where it provides, I think, a 75 or 90 percent rebate to school districts if they buy buses that are fueled by alternative-fuel vehicles. Now, is that going to have an effect on the kinds of buses that school districts buy? Of course. And is it going to have a big effect on manufacturers? Sure. And therefore, when we're talking about something that is mandatory, as opposed to something that is voluntary, they...  on page 7 of their reply brief, they make a distinction between voluntary standards and mandatory standards. From the relevant perspective, that is the perspective of the manufacturer, they are the same, as Senator Levin and the EPA explained. They operate on the manufacturers through the market. Now, to be sure, there...  you can come up and I think Justice O'Connor came up with the extreme example of no one in our State can buy a diesel vehicle. And what I'm saying is that one could argue and one might make a very good argument that if it is a mandate that's imposed on manufacturers or sellers that is masquerading as a purchase rule, where it really has that effect, you may find that substance will prevail over form, or you may find...  I think it would be more appropriate...  that this simply conflicts with the fundamental objective of the Clean Air Act under the Hines v. Davidovitz test. But that's not the challenge that was brought here, and that's...
David H. Souter: It would be conflict preemption, not express preemption.
Seth P. Waxman: Conflict preemption and not express preemption. And that will...  that analysis and that mode of analysis will allow the courts to deal with this parade of horribles that has never come true and may never come true if the political branches don't. But if you look at the history of what was going on in 1965 or 1967...  this is Congress' purpose...  no one was talking about...  no manufacturers were concerned about purchase rules. They were concerned about having to engineer and manufacture a third vehicle.
Anthony M. Kennedy: But if you need...  if you need conflict preemption to answer such a basic hypothetical as that put by Justice O'Connor, the statute doesn't mean very much.
Seth P. Waxman: Oh, I think...  no, no, no. With...  with respect, this...  this statute shut down cold, Justice Kennedy, precisely what was going on in 1967.
William H. Rehnquist: Thank you, Mr. Waxman.
Seth P. Waxman: Thank you, Your Honor.
William H. Rehnquist: Mr. Phillips, you have 2 minutes remaining.
Carter G. Phillips: Thank you, Mr. Chief Justice. Let me start with Justice O'Connor's hypothetical. We are told in language that I think a 6-year-old would have a hard time understanding that a flat ban on all gasoline-fueled engines in the State of California is not a standard relating to the control of emissions from new motor vehicles or new motor vehicle engines. Justice Kennedy is absolutely right. It has rendered the scope of preemption. There is no field of preemption. There is not even a divot of dirt of preemption that is created under that interpretation. It's not consistent with the language of the word standard. Standard means more than what manufacturers do. It's not simply how it gets enforced. It's broader, and Justice Stevens is clearly correct in that regard. The one provision that seems to have gotten lost in the...  in all of this, which I think is terribly important, is section 177 which states that State...  and this is at the...  the respondents' brief's appendix at 4a...  4a. The States are not authorized to prohibit or limit directly or indirectly the manufacture or sale of a new motor vehicle or motor vehicle engine that is certified in California. That is precisely what is being done here, is that vehicles that are certified in California are prohibited by a subagency. The State can't even do this, which is why I submit the answer to your question, Justice Scalia, is the State wouldn't have the authority to place the kind of restriction on its own subentities without running afoul of section 177. And the only way California could get approval for that would be to go to the EPA in the way that Justice Breyer has already described.
Ruth Bader Ginsburg: Mr. Carter, Mr. Waxman said in his brief that the position he's taking is the position that EPA takes, and EPA is not with us this morning.
Carter G. Phillips: Oh, I believe EPA is very much with us this morning because the Solicitor General speaks for the United States, and EPA is clearly a part of the United States Government. And...  and the EPA has made it absolutely clear, Justice Ginsburg...
Ruth Bader Ginsburg: So you...  you say that's just wrong when...
Carter G. Phillips: Oh, absolutely that's just wrong. There is no...  there is no way...  I have seen nothing to justify departing from what the Government's brief says.
William H. Rehnquist: Thank you, Mr. Phillips. The case is submitted.


Warren E. Burger: We’ll hear arguments next in United States against Kahn, number 1328. Mr. Frey.
Mr. Andrew L. Frey: Mr. Chief Justice and may it please the Court. This case is here on writ of certiorari to review a judgment of a divided panel of the United States Court of Appeals for the Seventh Circuit, suppressing certain telephone conversations which were recorded during the course of a Court authorized wire interception of respondents’ telephone pursuit to Title III of the Omnibus Crime Control and Safe Streets Act of 1968. After a thorough investigation, the results of which are detailed in an affidavit that was submitted in support of the wire interception application and that’s set forth at pages 9 through 20 of the appendix, federal law enforcement agencies developed probable cause to believe that Irving Kahn and an associate, one Jacobs were involved in conducting illegal gambling enterprises in violation of Illinois and a federal law. This information included detail statements of three reliable informants which were checked and verified in various ways, including examinations of telephone records. Since it was concluded that sufficient evidence to prove the offense and to illuminate its full nature and extent, including the identity of any confederates, could not be procured by conventional investigative techniques, an application was made to Judge Campbell of the District Court from the Northern District of Illinois, for an order authorizing interception of wire communications on the Kahn and Jacobs’ home telephones. This order was issued by Judge Campbell on March 20, 1970. In the order, he made the following findings, this is at page 21 of the appendix. He found first that there is probable cause to believe that Irving Kahn, Jake Jacobs, and others as yet unknown have committed and are committing offenses involving the use of interstate telephone communication facilities to the transmission of bets and betting offenses. He secondly found that there was probable cause to believe that particular wire communications of Irving Kahn, Jake Jacobs, and unknown others concerning these offenses will be obtained through the interception authorization for which is applied for. He found that normal investigative procedures reasonably appeared unlikely to succeed. Finally, he found that there was probable cause to believe that the telephones in the Kahn household have been and are being used by Irving Kahn and others as yet unknown in connection with the commission of the above described offenses. Therefore, he issued an order which authorized the Federal Bureau of Investigation to intercept wire communications of Irving Kahn and others as yet unknown concerning the above described offenses to and from the Kahn household telephones. Now, he provided that such interception would not automatically terminate with the first conversation that was intercepted, but that it shall continue and this is on page 23 of the appendix, until communications are intercepted which revealed the manner in which Irving Kahn, Jake Jacobs and others as yet unknown participate in the illegal use of interstate telephone facilities for the transmission of bets and betting information in an aid of racketeering enterprise, and which revealed the identities of there confederates, their places of operation and the nature of the conspiracy involved therein. Judge Campbell authorized this interception to continue for a period of 15 days. He directed as a statute requires that efforts be made to minimize the interception of conversations not relating to the offenses under investigation and he provided for five-day status reports by the attorney applying for the order. Now, pursuant to this authorization, conversations over the Kahn household telephones were intercepted for five days beginning on the evening of March 20th. The results are spelled out in the interim status report at page 26 of the appendix. They included on Saturday, March 21st, the first full day of the interception 50 telephone calls approximately involving the placing of bets amounting to about $15,000.00. They involved conversations between Irving Kahn in Arizona and Minnie Kahn at the Kahn home in Chicago in which gambling activities and losses where discussed. These conversations provided the interstate component of the charge under 18 U.S.C. 1952. They involved also in that the same day, conversations between Mrs. Kahn and unknown gambling figures advising of the number of bets placed the amounts of these bets, the identities of the betters. Two days later on --
Potter Stewart: The conversations, the interstate conversations between Mr. Kahn and Mrs. Kahn were -- these are related to wagering?
Mr. Andrew L. Frey: Related to wagering.
Potter Stewart: Was one a better and the other the bookmaker or what?
Mr. Andrew L. Frey: You mean Mr. and Mrs. Kahn?
Potter Stewart: Yes. For what?
Mr. Andrew L. Frey: They were related to the conduct of the -- what turned out to be the Kahn family gambling enterprise. And I’ve -- I don’t know if I'm in a position to disclose here the actual content of the conversations beyond what's in the record.
Potter Stewart: And the record shows what? What's the content?
Mr. Andrew L. Frey: The records shows --
Potter Stewart: Just relating to wagering? Is that all it says?
Mr. Andrew L. Frey: That it was relating to wagering. I think if there was some problem, whether these were sufficient to establish the jurisdiction along with the --
Potter Stewart: -- or were simply related to wagering. It’s not -- the record doesn’t show that the -- there was an offense committed during these conversations.
Mr. Andrew L. Frey: Well, it is an offense to use --
Potter Stewart: [Voice Overlap] that wagering interstate?
Mr. Andrew L. Frey: Well, it isn’t. It is an offense to -- under 1084 which they were not charged under to transmit wagering information over interstate law and such as the latest Las Vegas line on a game or something like that. It is an offense under 1952 which the Kahns were charged under to use any facility in interstate commerce with the intent to and then one of the things as otherwise promote manage, establish, carry on or facilitate the promotion, management, establishment, or carrying on of any unlawful activity which is defined as gambling.
Potter Stewart: Well, and does the record show that these conversations purely came within that statutory language?
Mr. Andrew L. Frey: Well, there has been no challenge to date that these conversations didn’t come. I assume that a motion could be made to dismiss the indictment at some subsequent point. But then --
Potter Stewart: We are not at that stage.
Mr. Andrew L. Frey: We are not that stage now.
Potter Stewart: I see.
Harry A. Blackmun: Mr. Frey, were there conversations between Mrs. Kahn and the, I think you referred them as gambling figures, were those intrastate? Does the record show?
Mr. Andrew L. Frey: As far as I know those were intrastate.
Harry A. Blackmun: Alright.
Mr. Andrew L. Frey: Now, when Mr. Kahn returned from Arizona to Chicago on Monday, he had further conversations with known gambling figures regarding the results of the weekend's wagering activities. In view of the success of the interception and achieving the purposes for which it was sought, it was discontinued after five days rather than to continuing for the 15 days for which Judge Campbell had authorized it. With the evidence thus, procured Irving and Minnie Kahn were both indicted for violation of 18 U.S.C. 1952. They moved to suppress the evidence procured by the wire interception and the District Court granted the suppression motion. First of all, as to conversations between Irving and Minnie on marital privilege grounds; secondly, as to all conversations of Minnie because the interception was not authorized by Judge Campbell’s order in the view of the District Court; thirdly, as to all conversations in which Irving did not participate on the same grounds. On the Government’s appeal, the Court of Appeals reverse on the marital privilege holding but it affirmed the suppression of all conversations of Minnie Kahn on the ground that she was not a person unknown within the meaning of Judge Campbell’s order. In so doing the Court construed the statutory requirement for identification of a person if known in the application and in the order to require the naming of any known user of the phone whose complicity in the offense might have been discoverable by careful investigation. It found that the Government had not prove that Minnie Kahn was not such a person. This evidentiary finding by the Court of Appeals was made without any record having been developed on the subject and indeed I suggest that the affidavit of the FBI agent, at top page 11 of the appendix, indicates that the belief of the investigating officials at the time was that if Irving Kahn was not there, the bets would be routed through Jake Jacobs. So, there are some question about the correctness of the Court of Appeals conclusion on this regard. The Court of Appeals also construed Judge Campbell’s order to authorize only the interception of conversations of the Irving Kahn, in other words, he had to participate in all the conversations and the other party had to be a person unknown. It considered this construction of the statute in order to comport with a policy of protecting individual privacy and to avoid making interception authorizations a virtual general warrant as it put it, Judge Stevens dissented. Now, we submit the Minnie Kahn was a person unknown within the meaning of both the statute and the order. And that the interception of her conversations regarding the illegal gambling enterprise was lawful and proper and produced evidence fully usable in the criminal prosecutions. In order to remove any possible confusion, I’d like to begin by indicating what this case does not involve. It does not involve the general facial constitutionality of Title III, the wire interception provisions of the Omnibus Crime Control Act. These by the way have been uniformly upheld by the lower courts were challenged with the exception of one subsequently reversed District Court’s opinion in Philadelphia. Secondly, it does not involve any finding that the Government in fact knew that Minnie Kahn was involved in the illegal enterprise and that she was in fact a target of this Government investigation, but the Government failed to name her in the application. No such finding was involved.
Potter Stewart: But I -- I think I missed that, would you repeat that?
Mr. Andrew L. Frey: Yes, there is no finding in this case, there is no contention to this point that the Government actually knew Minnie Kahn to be involved in this gambling enterprise and for reasons that the escape me as far as motive, declined to name her in the application for the wire interception. It is not like the situation that you spoke of in Coolidge where they knew perfectly well they are going to intercept criminal conversations of hers and didn’t name her in the authorization.
Byron R. White: But you suggested, the Government had probable cause to know that two people A and B were using a phone for illegal activities, and they got a warrant for A to intercept A’s conversations. They could not intercept B’s conversations except those with A, is that what you are suggesting?
Mr. Andrew L. Frey: Well, I'm not suggesting that. If a case arose where that was a problem, I would be prepared to argue that the -- although, I think that is analogous to the position that the plain view of discussion of Coolidge which was joined then by four Justices took. That is, if the Government knew and had as a target A and B, and it only named A, and it didn’t name B, although B was a target of the investigation and they have probable cause.
Byron R. White: Do the Government in these cases just doesn’t get authorizations as to listen to conversations on a phone? Just because it knows that phone is being used for illegal purposes doesn’t mean it can listen to all the conversations on that phone?
Mr. Andrew L. Frey: Oh, absolutely it can. If it has a court order authorizing it to intercept conversations over that phone, if it’s met the probable cause requirements of the statute. It doesn’t have to name a soul if it doesn’t know anyone.
Byron R. White: Well, if it doesn’t, what difference does it make if it does?
Mr. Andrew L. Frey: Well, that’s an interesting question and I might --
Byron R. White: But that’s involved in this case.
Mr. Andrew L. Frey: Well, [Voice Overlap] no I don’t believe it is involved in this case Justice White because here, there was not a situation where the Government knew that Minnie Kahn was involved.
Byron R. White: Well, I know but even if it did?
Mr. Andrew L. Frey: Well, it would be our contention that even if the Government did, it could still at least intercept Irving’s conversation with her.
Potter Stewart: But you might have a more difficult case that’s all you’re saying, isn’t it?
Mr. Andrew L. Frey: It might be a more difficult case, although I would be prepared to argue that the interceptions was involved --
Potter Stewart: But you don’t need to argue it here, that’s your only point.
Mr. Andrew L. Frey: I don’t need to Justice Stewart. Now, finally there is no allegation that there was failure to minimize here. That is, there is no claim made to date that the Government improperly listened to innocent conversations. We are talking here about the interception of conversations about a criminal enterprise. I’d like first to dispose of Judge Campbell’s order.
Warren E. Burger: We’ll resume at that point at 10 o’clock.
Mr. Andrew L. Frey: Thank you.