William H. Rehnquist: We'll hear argument now in No. 112 Original, Wyoming against Oklahoma. Mr. Leader, you may proceed whenever you are ready.
Neal Leader: Mr. Chief Justice, and maybe it please the Court: You are asked today, I believe, to establish a dangerous precedent, not a dangerous precedent in the area of Commerce Clause law, but a dangerous precedent in the area of your original jurisdiction, for today in this original action, Wyoming makes a Commerce Clause challenge to an Oklahoma law that requires coal-burning utilities in Oklahoma who sell to Oklahoma consumers to burn at least 10 percent coal. This challenge is brought, however, on the basis of an indirect taxing interest, an interest in collecting coal severance tax. The essence of Wyoming's claim is that Oklahoma's law results in the private Wyoming coal producers having a smaller share of Oklahoma's coal market. This reduction in market share, Wyoming argues, and I will argue later, but it does not prove, reduces Wyoming coal production, which in turn lowers severance tax. Oklahoma's position is that the exercise of original jurisdiction to adjudicate a Commerce Clause challenge based on an alleged indirect loss of tax revenue is (1) inappropriate, (2) not necessary, and it will very likely popularize a new trend which I will refer to as end-running, and I will discuss that new trend in a moment. As this Court has recognized, the exercise of original jurisdiction by this Court is a serious intrusion on society's interest in the Court's most deliberate and considerate performance of its paramount role as a supreme Federal appellate court, and original jurisdiction should only be assumed when justified by the strictest necessity. To permit a State to maintain a Commerce Clause challenge to protect an indirect tax interest is not strictly necessary and not appropriate because it invites mischief. It invites a new game, a game called end-running, where someone who is engaged in commerce and the commerce is taxed and they want to challenge another State's statute, but they don't want to have to come up through the district court and the appeals system, end-runs the traditional system by going to the Government and say, you taxed this, you bring an original action. And then we wind up with an appearance of State qua State saying, we are interested in our taxes--
John Paul Stevens: You suggest that the taxpayer is going to invite the State to impose the tax just so it can run this end run?
Neal Leader: --I am not, but--
Speaker: That's what I thought you said.
Neal Leader: --we are dealing with commerce, Your Honor, and almost everything that moves in commerce is at one place taxed, one place or another taxed by the State, and that is why it is so dangerous in this particular area.
Anthony M. Kennedy: Are you suggesting the State doesn't care that it loses tax revenue?
Neal Leader: I am saying the State certainly does care, but I am stating it is not necessary for the State to come here to get relief, and therefore, original jurisdiction shouldn't allow. Secondly, I am saying that the danger is that we have the appearance of State qua State, but we really have a State qua shill for the local industry.
William H. Rehnquist: Mr. Leader, what would be the perceived advantages from the point of view of the Commerce Clause plaintiff in going for original jurisdiction rather than in coming up through either the State or Federal court system?
Neal Leader: Having a final answer for the entire country, that... don't have to worry about being overturned so simply another time. Secondly, I assume it is proceeded as speedier, if you get here, and can start here, you become the Court or the forum of first choice. It saves time and money because you don't have all those layers of litigation. So there are several advantages here that would invite the danger.
Antonin Scalia: I don't understand how we come off... you mean whenever a State has a valid interest and a sufficient interest to confer standing, article 3 standing, we should still and all inquire case by case whether somehow that interest is what? Significant enough to justify the risk of end-running that you refer to? I mean, I can understand an argument that there is no State interest here or not the sufficiently direct interest that would confer standing, but that is not the argument you are making.
Neal Leader: That will be my second argument, Your Honor.
Antonin Scalia: I see.
Neal Leader: My first argument is, because of the dangers involved here, and because of the other forums that are available, the strictest necessity test simply is not met in this kind of case.
John Paul Stevens: May I just suggest this with respect to these dangers, the parade of horrors, let me say something, we are in a pretty good position to control those dangers. In other words, if we think there are an awful lot of these complaints being filed, we do not have to take the... allow the complaints to be filed.
Neal Leader: You may control them, but still your docket gets clogged up.
John Paul Stevens: Well, we would just deny a leave to file the bill of complaint.
Neal Leader: Even that takes time and other people get to--
John Paul Stevens: Well, that doesn't take an awful lot of time. [Laughter]
Neal Leader: --The use of original jurisdiction is not necessary here because first, the real party's interests, the Wyoming coal producers, have both Federal and State courts available to them, and truly, if this indirect tax interest is enough to justify the cost of litigation, the direct impact would motivate the actual movers in commerce similarly. Secondly, the State could have sued the State utility companies here in either State or Federal court and sought injunctive relief and declaratory judgment. The State is also not prohibited from encouraging the people who are actually affected from bringing suit. The State is not prohibited from helping the movers in commerce from bringing the action, or given the proper appropriation, not prohibited from funding it. In short, there are sufficient alternatives to have this issue resolved, and the strict necessity which you say is, was to guard your original jurisdiction has not been met here. We say the special master erred in finding that this was an appropriate case for original jurisdiction. Secondly, we say that the special master erred in finding that this indirect tax interest conferred sufficient standing. There is no Supreme Court case that we have been able to find that recognizes this indirect taxing interest as justifying standing. We would urge the Court to follow the teachings of the D.C. Circuit Court of Appeals case in Philadelphia v. Kleppe. In that case the State of Pennsylvania sued the Small Business Administration, challenging that agency's classification of a hurricane-damaged area as a Class B disaster. Pennsylvania claimed that its taxing revenue and economy were damaged by the mistake in classification. The court of appeals rejected this vicarious injury as the basis of standing, saying, impairment of State tax revenue should not, in general, be recognized as sufficient injury in fact to support State standing. And the court goes on and says, we need a direct link between the State statute and the collection of taxes, and then says, this would prevent State standing in cases like the present one where the diminution of tax receipts is largely an incidental result of the challenged activity. Now, even if on occasion this indirect taxing collection interest could justify standing, that interest has not been shown here. As this Court noted in Duke Power Company v. California Environmental Study Group, to show standing a plaintiff must (1) show direct and palpable injury to the plaintiff, and a fairly traceable causal connection between the claimed injury and the challenged conduct. Here, Wyoming has failed to prove those elements. And certainly--
William H. Rehnquist: What did it prove, Mr. Leader, in the way of lost revenue because of the existence of the Oklahoma statutes?
Neal Leader: --What it proved was, is that a share of the market has been denied to Wyoming producers. It introduced no evidence that demonstrated that the loss of that market share converted automatically into less production in Wyoming.
William H. Rehnquist: This is a severance tax, not a sales tax?
Neal Leader: This is a severance tax, not a sales tax. It is tax on the removal, for the privilege of removing it from the ground, whether there is a sale or not.
William H. Rehnquist: Did Wyoming introduce any statistics to show that there was less coal removed from the ground as a result of Oklahoma's statute--
Neal Leader: Quite the contrary. The evidence here, Your Honor, shows that since the act has gone into effect Wyoming has produced more coal and it continues to produce more coal year after year after year. In fact, the second year after this act, Oklahoma's act went into effect, there was more coal sold in Oklahoma. They simply have not shown there is a connection between this lost market share of the producers and their severance tax collection. They offer two pieces of evidence to attempt to show it. One is an affidavit of Richard Markel, who is the director of the Wyoming mining tax division. His affidavit just assumes that there is a direct one-to-one relationship. If you lose a sale of 1 ton of coal or you have a sale of Oklahoma coal in Oklahoma, that is an automatic loss of tax revenue and he just multiplies. But he is assuming what has never been proved. The second piece of evidence--
John Paul Stevens: --Yes, but why did they pass this statute?
Neal Leader: --Why did who pass the statute?
John Paul Stevens: The Oklahoma legislature? Didn't they assume that it would cause the utilities to buy Oklahoma coal they would otherwise buy from Wyoming?
Neal Leader: They assumed--
John Paul Stevens: Go ahead--
Neal Leader: --Sure. They passed it for a variety of reasons. It was to limit the utilities' reliance on this umbilical cord, this railroad that connects it to its source of energy, and to see that any cutoff in that energy would be--
John Paul Stevens: --Yes, but the method of doing that was to increase purchases of local coal--
Neal Leader: --That's right.
John Paul Stevens: --and decrease purchases of Wyoming coal.
Neal Leader: That's right.
John Paul Stevens: So can't we kind of presume that is what has happened?
Neal Leader: You can presume that Wyoming produces--
John Paul Stevens: To the extent that they bought Oklahoma coal, that that would be coal otherwise--
Neal Leader: --They have lost the market share in Oklahoma, and what you can't presume is that that loss of market share in Oklahoma means they had a bad year.
John Paul Stevens: --No, but they would have sold that coal to Oklahoma had Oklahoma's statute not required the purchase of the Oklahoma coal.
Neal Leader: What we don't know is what their production is like. Do they have manpower difficulties? Are they having a hard time meeting their present demands now? Are they selling out of stockpile? We do not know the relationship between this lost market share and what is produced in Wyoming. That is the missing link here. Even if... let me talk about the second piece of evidence, was that affidavit from Mr. Cartwright from Trident Oil Company. His affidavit merely says that he has a contract to sell coal with one of the utilities and he can meet that contract. He doesn't say how it affects his total production. He doesn't say how he meets it, to say if he is meeting it out of stockpiles. This evidence at best is vague and suggestive and clearly does not meet the standard in your original jurisdiction cases. You require the plaintiff to show their case by clear and convincing evidence. There is no clear and convincing evidence in this case showing a relationship between the lost market share in Oklahoma and the ultimate production of Wyoming coal producers. In fact, the evidence suggests that Wyoming coal producers keep producing more and more coal. Now as to Oklahoma's statute itself, Oklahoma freely admits that its statute does not, in the constitutional sense, treat all evenhandedly, and that in fact, that it does aid coal production in Oklahoma. Part of this difference is based upon the difference in the properties of coal in each State. As the uncontradicted, stipulated facts show, Oklahoma coal has a much higher BTU. It takes approximately 1-1/2 pounds of Wyoming coal to equal the burning power, the BTU power of Oklahoma coal. Oklahoma coal has a high sulfur content and Wyoming has a low sulfur content. The purpose of the statute was to aid utilities, reduce and limit its reliance on this coal production connected by a single railroad, now two railroads, and to see that if there is a shutoff of fuel, they have some protections against those dangers there.
Antonin Scalia: How do we know that is the purpose, as opposed to--
Neal Leader: Sheer economic protectionism, right.
Antonin Scalia: --Yes, right, because that is what I would have guessed it was, if you didn't tell me. [Laughter]
Neal Leader: Your Honor, I think we determined that the purpose of the statute when you don't have legislative history for the act by looking at the statute and its effect. Clearly, the act has the effect that you talk about. It also has the effects that I talk about. I emphasize the effects that I think are more legitimate and I emphasize the effects that I think are least legitimate, but I think it is fair to presume that all those were intents of the legislature. But we are dealing here with an area where the State has in the past been given a great deal of deference. This Court has found that a State has a clear and substantial governmental interest in determining the need, the reliability, cost, and other related matters with respect to utility. I mean, after all, the State has an obligation to keep the lights on. Society has a great need for that, and here--
Antonin Scalia: I was really asking for something more specific. You are not relying upon some legislative history?
Neal Leader: --We do not have legislative history.
Antonin Scalia: And the title of it... the State does not even have it? I mean, the State does not keep it?
Neal Leader: We don't have a legislative committee--
Antonin Scalia: How enlightened. [Laughter] You have-- Not only that, but you are lucky.
Neal Leader: --In the utility area, the State franchises utilities. We make them monopolies. We set them up to do business for the people's good. We guarantee them a fair rate of return. We set their rates. We control and limit many of their business decisions. To a real... in a real sense, the State and utilities are partners for the good of the people. And I maintain that in this area, the State should be given more deference, as it is given deference when the State is a market participant. We are not quite a market participant here, but we are closer to that than a mere regulator. And I ask that this Court give the States greater deference in this area. Now, if the Court should decide not to give greater deference to us in this area, at least as to respect of the State-owned utility, the Grand River Dam Authority, that is a market participant and your market participation doctrine protects the State against the challenge. There is a severability argument here, and I think it is a red herring. If we were to test this statute clearly and only as to the Grand River Dam Authority, it would be constitutional. It could be applied. We are dealing with an application of a statute, not a severance here. It is clear in Oklahoma, and we use Oklahoma law to determine these areas, it is Oklahoma's statute... and a familiar rule of Oklahoma law is that an act of legislature, while invalid and inoperative as to one set of facts, may be constitutional and valid as to another and different set of facts. Additionally, Oklahoma's jurisprudence provides that where a statute on its face is applicable to several classes of persons or cases, the constitutionality of the statute as applied to one class may be upheld at the same time as its applicability to another class is stricken down as unconstitutional. When such a situation arises, the statute is only entirely void where it is clear that the legislature intended it to be. We don't have such a clear intention here. The Oklahoma legislature, in fact, has a severability clause attached to this act. In conclusion, let me note Chief Justice Fuller's comment in Louisiana v. Texas. In that case, in commenting on original jurisdiction, Chief Justice Fuller said, it is apparent that the jurisdiction is of so delicate and a grave a character that it was not contemplated that it would be exercised save when the necessity was absolute and the matter itself properly adjudicable. I urge this Court to adhere to Justice Fuller's teachings and dismiss this original action because it is not necessary. There are other forms available to have this issue answered, and secondly, because it is not a justiciable issue, Wyoming having failed to show standing. I thank the Court. I reserve the rest of my time for rebuttal.
William H. Rehnquist: Thank you, Mr. Leader. We will hear now from you, Ms. Guthrie.
Mary B. Guthrie: Thank you, Mr. Chief Justice, and may it please the Court: The Oklahoma statute which the State of Wyoming has challenged is a classic example of economic protectionism. The statute is discriminatory because it has disrupted the current coal market by forcing Oklahoma utilities to purchase Oklahoma coal rather than the Wyoming coal that they were purchasing until the statute was passed. We urge this Court to adopt the special master's recommendation that you find the Oklahoma statute unconstitutional under the Commerce Clause. The statute is invalid because it, on its face, discriminates against interstate commerce. It forces Oklahoma utilities that sell power to Oklahoma consumers to buy Oklahoma coal. This explicit discrimination is the most blatant kind of economic protectionism that this Court on many instances has invalidated.
William H. Rehnquist: Are you going to go into the question of standing at all, Ms. Guthrie?
Mary B. Guthrie: Yes, I will address that now, Mr. Chief Justice.
Antonin Scalia: At your convenience. How come you are not the coal company? I mean, why didn't the coal company bring this lawsuit?
Mary B. Guthrie: Well, I don't know--
Antonin Scalia: Is there some explanation for that? I mean, if they are losing money, one would think that they would be as interested in it as you are, unless you have 100 percent severance tax.
Mary B. Guthrie: --No, we don't. Our severance tax is 8-1/2 percent. The assumption would be that perhaps they have chosen for political purposes not to rock the boat. Perhaps coal companies make so much money anyway that it doesn't matter; however, the injury that the State of Wyoming has sustained to the tune of at least $500,000 a year is certainly a significant interest and injury as far as we are concerned.
William H. Rehnquist: How was the $500,000 a year proven, Ms. Guthrie?
Mary B. Guthrie: There was an affidavit prepared by a person from our tax division who looked at the amount of coal that had not been sold in Oklahoma and estimated how much that would be. That information was in no way rebutted by the State of Oklahoma.
William H. Rehnquist: Well, the burden of proof would be on the State of Wyoming, I suppose, on that issue because it's the plaintiff, and I suppose the special master could make a finding that Wyoming lost a certain amount of money. Did the special master make any finding like that?
Mary B. Guthrie: Yes. He referred to the loss of severance taxes and he determined that there were those direct injuries as a result of our loss of severance taxes because of the statute.
William H. Rehnquist: Did he make any finding as to dollar amount?
Mary B. Guthrie: I don't recall if he did or not. I think that he did make that finding.
William H. Rehnquist: It seems to me that your affidavit, while it would perhaps support a finding of loss, doesn't rule out the possibility that if the coal production in Wyoming didn't sell in Oklahoma, it might have found a market for elsewhere. The affidavit doesn't say that Wyoming lost tax revenues.
Mary B. Guthrie: The affidavit does say that the State of Wyoming lost $500,000 in tax revenues because of coal that had not been sold to Oklahoma utilities.
William H. Rehnquist: But that doesn't indicate that that same coal that would otherwise have been sold to Oklahoma might not have been sold elsewhere.
Mary B. Guthrie: That doesn't really affect the State of Wyoming sales. The question that you really have to look at is the injury to the State of Wyoming as a result of lack of Oklahoma sales, regardless of whether Wyoming sold coal in other places. It has lost the sale to the Oklahoma producers, Oklahoma utilities.
William H. Rehnquist: I am not saying that that is not a reasonable position, but it doesn't seem it is the only one. Supposing that Wyoming in 1988 took in $5 million in severance tax revenues. Then in 1989 it also takes in $5 million in severance tax revenues. In 1989, a certain amount of coal that was previously sold to Oklahoma isn't, but it is sold in Utah instead. How is Wyoming the loser?
Mary B. Guthrie: We have a stipulation that provides that until about 1986 virtually 100 percent of all the coal burned in Oklahoma came from Wyoming, and since that time, after the statute has been passed, the amount of coal that has been sold to Oklahoma has been reduced. There was a report that was prepared by two economic fuel specialists who said that but for the act, the State of Wyoming's coal producers would have still continued to sell virtually 100 percent of the coal to Oklahoma plants. So there are facts that would support the fact that this statute has changed the way that electric utilities in the State of Oklahoma make their fuel choices.
William H. Rehnquist: So even though... your theory is that even though Wyoming did not lose a penny, its severance tax revenues are as high as ever, if some of the severance taxes were imposed on coal sold in Utah as replacements for the sale that wasn't sold in Oklahoma, it can still bring this action?
Mary B. Guthrie: Our position is that because the act was passed, we can fairly trace an injury to the collection of severance taxes. The State of Wyoming has a great deal of coal capacity that is not sold every year. So we have, as producers and then as tax people, have experienced an injury as a result of this act. It's also possible, Mr. Chief Justice, that other States could then begin to enact these kinds of acts and then States like Wyoming would really begin to experience a tremendous injury as a result of this kind of discriminatory legislation.
Harry A. Blackmun: Ms. Guthrie, let me be sure about one fact; didn't Oklahoma move to dismiss the original action?
Mary B. Guthrie: This Court has viewed the standing issue, this is the third time the Court has viewed the standing issue. The first time they filed a motion... they filed a response to our motion for leave to file a complaint, and the Court ordered the State of Oklahoma to answer--
Harry A. Blackmun: So one could almost argue that the standing issue already has been decided up here.
Mary B. Guthrie: --I would argue that, but if I am getting questions from the Court, I wouldn't be so abrupt to make that kind of argument, but the standing issue... because then the motion to dismiss based on standing was denied. Then the whole issue was brought up again in front of Judge Tone, who had been selected as a special master, and he also made a determination that standing... that the State of Wyoming did have standing in this case because we had suffered an injury.
Antonin Scalia: So he didn't think we had decided it, anyway.
Mary B. Guthrie: Well, he probably thought you had decided, but he wanted to decide it again.
Antonin Scalia: He just wanted to decide it again?
Mary B. Guthrie: Yes. He did an awfully good job. [Laughter]
Antonin Scalia: Ms. Guthrie, I have a problem. I guess it is a little... it is even more fundamental. You have been asked about the proof of the damages. Let's assume... let's assume that it could be proven in this case that there would have been more sales. Would that necessarily establish standing? I mean, standing requires not only that there be an injury... at least our prudential rules require both an injury and a direct injury. I mean, I think, haven't we adopted standing rules that are similar to the rule that we adopted in the antitrust field in Illinois Brick, which prevents a secondary injury from a secondary purchaser whose price has been inflated by a Sherman Act conspiracy from recovering triple damages? Isn't it the same thing here? I have never heard of a State suing for loss of taxes before. I mean, what is... an ordinary contract case where somebody is guilty of a breach of contract, an enormous amount of money, a great big contract, do you think the State could sue for the loss of sales tax revenue from that breach of contract?
Mary B. Guthrie: No, the State couldn't in that instance, but that is certainly not the kind of--
Speaker: Why?
Mary B. Guthrie: --case that is presented here, because we are directly collecting taxes as a result of the sale of coal. The cases to which Mr. Leader refers are cases that are this injury to the general kind of taxing power of a State. Maybe a State will in fact have to assess more taxes to pay for some kind of service that they weren't able to provide before--
Antonin Scalia: We are not talking about a sales tax. It is very clear that had this contract been performed, the sale would have occurred, the State would have gotten X dollars from the sale, and there is a breach of the contract and it seems to me, I doubt very much whether the State would have any cause of action for that, as a person harmed by that breach of contract, have any standing to complain about it.
Mary B. Guthrie: --Well, we must look at this, though, in the context of the Commerce Clause and also the fact that this is legislation has harmed one State to the benefit of another State's residents.
Antonin Scalia: We usually leave it to the people immediately affected, in this case, the coal company, and you said these statutes could be passed in a lot of States. I suppose they could, but I don't imagine the coal companies would sit idly by while that was happening. It's not as though we wouldn't have an opportunity to remedy the matter.
Mary B. Guthrie: Well, you referred to the prudential kind of limitations that the Court has undertaken to sift out the cases it doesn't want to hear, and you certainly have developed a great number of rules that deal with standing of original actions. And I would say that this is the kind of case that requires an original action being taken. You have had a serious claim. We certainly are challenging the fact that the statute has violated the Commerce Clause. It's not a trivial matter at all. There is this direct injury. Now, the State of Oklahoma says it is not direct, but they have certainly never shown you through any kind of... or there was no evidence that this injury that we suffered was not direct. It is just his saying that it's not direct and I guess it is my saying that it is direct. It certainly is direct so far as the State of Wyoming is concerned because of the way that we use that money and that we do impose that tax. But there are several different prudential rules that you have adopted, and I would suggest that virtually all of the qualities that you say you look for in an original action are similar to this one. In Maryland v. Louisiana, this Court accepted original jurisdiction and it was also a Commerce Clause challenge. I think also in another case, Pennsylvania v. West Virginia. So I think the implication of the Commerce Clause additionally adds another feature that you might not have seen in some of the other cases that--
Antonin Scalia: The import of my question doesn't go to whether we should take the original action or not, it goes to whether we should think there is standing in the Federal courts anywhere, not just here, so I agree with you to that extent.
Mary B. Guthrie: --Once this Court has determined that the State of Wyoming does have standing, you must determine that the statute is invalid because it's invalid on its face. It's also invalid in its purpose. Examination of a resolution that was passed by the State of Oklahoma in 1985, a year before this statute was passed, will show you the kinds of things that were motivating legislators from Oklahoma. They referred to the fact over $300 million had gone out of State because ratepayers were paying for Wyoming coal, and $9 million had been assessed in Wyoming severance taxes. They said that the purpose of encouraging utilities to use Oklahoma coal would be to enhance the economy. Again, the classic sort of example of the kinds of things that this Court has disapproved of because it is a discriminatory purpose. There was only one purpose for this statute to be passed, and that was to encourage the use of Oklahoma coal. The State of Oklahoma provided no evidence in this proceeding through affidavits or even in the statement of material facts to the special master that would in any way show that there was any kind of purpose besides some kind of discriminatory economic purpose. There is a very definite protectionist effect, also, of the law. The result means that there will be a sale of less coal to the State of Wyoming. We acquired the services of an economist who came up with several different ideas about why Oklahoma coal was being used, and the whole conclusion that they all reached was that it was only because of the interference of the statute. The State of Wyoming asks this Court to declare the Oklahoma statute unconstitutional as an example of simple economic protectionism and to apply your virtually per se rule of invalidity that you have encountered whenever you find a facially discriminatory statute. We also respectfully submit that the Court does accept standing in this case. You have already, as Justice Blackmun has pointed out, you have already looked at this question twice or three times. Therefore, we request that you do affirm the special master's report.
William H. Rehnquist: You are not questioning the special master's treatment of the Grand River Dam Authority?
Mary B. Guthrie: That was part of our... we took the exception to the special master's report and it was not so much the treatment of the Grand River Dam Authority, it was his holding that that statute could be severed. We feel that the statute, as it was written, really, once the invalid portions are removed, could not be validated. The statute reads, all entities that sell electrical power to consumers in Oklahoma must buy Oklahoma coal. Once you get rid of that invalid portion there is nothing left in the statute.
Byron R. White: You think that is necessarily so?
Mary B. Guthrie: That's the--
Byron R. White: I take it, you opposed, you didn't think the special master should have suggested your resolving severability in the State court.
Mary B. Guthrie: --That was true as well, Justice White.
Byron R. White: And I take it you, then, think it would be wholly improper for us to certify a question to the Oklahoma supreme court as to the severability of this statute?
Mary B. Guthrie: That was the argument that we made. The idea being that it's really not... it's a demeaning sort of thing to take a State, one State into another State's court. So from that aspect it would be more appropriate for--
Byron R. White: We wouldn't be... a certification wouldn't be taking a State into a State court. We would certify the question and then the court would just give us the answer.
Mary B. Guthrie: --Bring it back to you. Well, I would suggest that Oklahoma judges, like Oklahoma legislators, are elected, and perhaps we might not have the same kind of impartiality that we would have here.
John Paul Stevens: I don't understand that argument, because how should the question be decided, then? First of all, let me ask one preliminary question. Does Oklahoma have a certification statute, do you know?
Mary B. Guthrie: I have no idea.
John Paul Stevens: I see. Well, I was puzzled about your saying you couldn't go in another jurisdiction. In Nevada v. Hall, California had to go to Nevada or vice versa, I don't remember which one it was.
Mary B. Guthrie: But there were some kind of definite... there had been an accident. I think it was a Nevada State employee who was injured in California.
John Paul Stevens: Yes, but there is a dispute between the State and someone else. I don't know why... I don't understand.
Mary B. Guthrie: And certainly if this Court chooses to certify the case, I am sure--
John Paul Stevens: We have ruled... if we followed the master's recommendation with respect to the invalidity insofar as the statute applies to the three private utilities, what can you lose by having the matter go to the State supreme court?
Mary B. Guthrie: --Certainly, I would much prefer that you affirm the master's holding that the statute is unconstitutional as it relates to the three private utilities and not worry so much about the GRDA.
John Paul Stevens: It seems to me that you are waiving your severability argument.
Mary B. Guthrie: I am not waiving it, but I am not very artfully expressing it, I guess. It is obviously not as big a concern to the State of Wyoming as these other questions are, but I think if you look at the general rule of severability, you would find that the special master did not precisely apply those severability principles.
John Paul Stevens: No, but the Oklahoma attorney general is here representing to us that as a matter of Oklahoma law, this is the result that was appropriate as I understand him, assuming that the merits--
Mary B. Guthrie: That is his representation, yes. Thank you.
William H. Rehnquist: --Very well, Ms. Guthrie. Mr. Leader, you have 11 minutes remaining.
Neal Leader: Your Honor, I will waive rebuttal.
William H. Rehnquist: Very well. The case is submitted.
Speaker: The Honorable Court is now adjourned until tommorow at ten o'clock.


William H. Rehnquist: We'll hear argument next in Number 94-9088, Meirl Gilbert Neal v. The United States. Mr. Bergerson, you may proceed.
Donald T. Bergerson: Thank you. Mr. Chief Justice, and may it please the Court: In 1984, after 10 years of careful study, Congress responded to growing criticism of Federal criminal justice systems by creating the United States Sentencing Commission. The task of the commission was to eliminate unpredictable, unequal, and unfair sentences which had marred Federal criminal law for decades. To achieve this goal, the commission was vested with broad factfinding resources, staffed with jurists and leading experts in the sentencing field, and structured to interact symbiotically with the courts and other branches of Government so as to evolve predictable and proportionate sentencing practices throughout the Federal courts. This case offers this Court an opportunity to define the role of the commission in such a way as to fulfill the express intentions of the Congress which created it. Meirl Neal was convicted of trafficking in LSD in 1989. Section 841(b) of title 21 requires a mandatory 10-year penalty for trafficking in 10 or more grams of a mixture of LSD. At the time Mr. Neal was sentenced, neither the sentencing guideline nor the code contained a definition of the term, mixture. In this case, and under the rule later announced by this Court in Chapman v. United States, the relevant mixture was held to consist of the blotter paper onto which the LSD was placed for purposes of sale and distribution. Under this definition, Mr. Neal received a sentence of 16 years imprisonment. Four years after Mr. Neal was sentenced, the Sentencing Commission conducted hearings on whether the sentencing practice used in his case could be reconciled with section 841. The hearing was required under the commission's 1984 enabling legislation which chartered it and made numerous reference to its absolute and abiding duty to eliminate unwarranted sentencing disparities in Federal criminal cases. Congress equipped the commission with numerous tools to achieve this result.
Sandra Day O'Connor: Mr. Bergerson--
Donald T. Bergerson: Yes.
Sandra Day O'Connor: --if all we had before us were the facts in this case and this Court's Chapman interpretation of the statute, would we consider the weight of the blotter paper?
Donald T. Bergerson: If all... Justice O'Connor, if all the Court had before it were simply Mr. Neal coming up and asking the Court simply to reconsider Chapman in the absence of commission action--
Sandra Day O'Connor: Right.
Donald T. Bergerson: --Would you reconsider? No.
Sandra Day O'Connor: Well, you didn't... are you asking that we now overturn Chapman to reach the result, or are you arguing that you can leave Chapman where it is but the sentencing guidelines changes means the statute should be interpreted differently?
Donald T. Bergerson: First of all, I am--
Sandra Day O'Connor: It's not clear to me.
Donald T. Bergerson: --Okay. I'm arguing the latter, but I also believe a modification of the former is the appropriate statement of my principle in this case.
William H. Rehnquist: Well-- --Modification of the former, to what--
Donald T. Bergerson: Of the former proposition, which is revisiting Chapman. There is no stare decisis problem in this--
Sandra Day O'Connor: --But do you think that the commission has power to redefine statutory terms that this Court has already defined?
Donald T. Bergerson: --I think that the commission has--
Sandra Day O'Connor: And that we should defer to that?
Donald T. Bergerson: --I believe that this Court should defer to the--
Sandra Day O'Connor: Is the answer yes?
Donald T. Bergerson: --The answer is yes, Justice O'Connor. I believe that this Court should look to the act of Congress in 1984 which vested the commission with the duty and the power to interpret terms and penalty statutes so as to establish--
William H. Rehnquist: And you think that vested the Sentencing Commission with the authority to define a term of the... a statutory term differently than this Court defined it?
Donald T. Bergerson: --I don't believe that the Sentencing--
William H. Rehnquist: Can't you answer the question yes or no?
Donald T. Bergerson: --No, I do not believe that the Sentencing Commission has the power to define a statute in a way different from the way this Court--
William H. Rehnquist: When we have already defined the meaning of a statutory term in Chapman.
Donald T. Bergerson: --This Court in Chapman held that in answer to the question of whether to include blotter paper in the weighing of LSD, in answer to the specific question, does mixture or substance refer to pure LSD, this Court held that one must include the blotter paper because Congress adopted a market-oriented approach for purposes of sentencing under 841. The commission has, after thorough exploration, factfinding and hearings, reinterpreted the term mixture in light of the realities of the market.
William H. Rehnquist: Contrary to what this Court interpreted it as in Chapman?
Donald T. Bergerson: Your Honor, words like--
William H. Rehnquist: Well, but can you answer yes or no? You're describing the commission's interpretation of the term mixture, and I'm asking, is that contrary to the way this Court defined it in Chapman. Now, certainly you can explain, but you can answer it yes or no.
Donald T. Bergerson: --No. It is an expansion. This is a second generation case. This Court in Chapman held that mixture or substance containing LSD requires that the paper be weighed in terms of sentencing, because the meaning of the statute was to punish drugs as they are sold in the market.
Ruth Bader Ginsburg: What was the judgment that the Court... was it a judgment that the Court affirmed? The Court affirmed the Seventh Circuit, wasn't it, in Chapman?
Donald T. Bergerson: In both cases the Court affirmed the Seventh Circuit.
Ruth Bader Ginsburg: Yes, and what was the judgment? Was it set according to just some weight to the blotter paper, or full weight?
Donald T. Bergerson: There was language in Chapman which was not necessary to the resolution or solution of the case which said that all the blotter paper should be weighed.
Ruth Bader Ginsburg: Wasn't this a question of a conviction and a sentence that had been entered in Chapman?
Donald T. Bergerson: Yes.
Ruth Bader Ginsburg: And if the position that you are now taking, that all the Court said was that you give some weight, not necessarily full weight, to the blotter paper, then wouldn't the judgment have to have been vacated so that it could be modified to reflect something less than full weight?
Donald T. Bergerson: No. In Chapman, the issue before the Court was whether the phrase, mixture or substance, referred to pure LSD. The commission had not yet spoken to the issue, nor had any other agency, nor had Congress spoken, and the term had no fixed common law meaning. Accordingly, the Court was obligated to use the plain meaning of the word. What we are arguing in this case is that the plain meaning of the word has changed in light of the commission's thorough factual exploration into what that plain meaning--
Ruth Bader Ginsburg: And the meaning couldn't be plain. If the meaning was plain, it wouldn't have changed.
Donald T. Bergerson: --Well, but the meaning can change in the context of the statute, because the statute refers to the drug market.
William H. Rehnquist: Well--
Donald T. Bergerson: And that's what the commission studied, was the drug market.
William H. Rehnquist: --Well, what if in a totally different context this Court had said we take the plain meaning of the word employee, in a case that Justice Breyer wrote for the Court a few weeks ago, and then a great convention of lexicographers came along and said, well, we really want to get to the bottom of this thing, and we now think that employee means something different, could the next party come along and say, well, this case should be modified because you are wrong in deciding what employee meant?
Donald T. Bergerson: No, because there is no congressionally delegated convention of lexicographers tasked with precisely the task that you've outlined in your hypothetical.
Antonin Scalia: But Congress could do that. That's the only thing lacking, really, right? Congress can have this Court second-guessed all the time. All it has to do is designate a particular convention of lexicographers, just as here it designated a certain aggregation of judges and scholars who could be commissioners.
Donald T. Bergerson: If Congress designated a convention of lexicographers with the same thoroughness as it did--
Antonin Scalia: Right.
Donald T. Bergerson: --the Sentencing Commission, then the answer would be yes.
Antonin Scalia: Gee, I feel a lot less important than I did before. [Laughter] Well, that's contrary to some of our decided cases, isn't it, that another body could in effect overrule our decisions? In fact, it's contrary to that case back in 1790, the pension case.
Donald T. Bergerson: Your Honor, this is not a case of stare decisis, and those cases all deal with stare decisis, and it's not a case of stare decisis for two reasons. First, the language in Chapman which is problematic here, the language which talks about weighing all the blotter paper, was not necessary for the resolution of the Chapman case because the question presented in Chapman was simply answered by saying that the mixture includes blotter paper.
David H. Souter: Did the length of the sentence in Chapman depend on the actual weight, including the weight of the blotter paper?
Donald T. Bergerson: What was at issue in Chapman--
David H. Souter: Yes or no.
Donald T. Bergerson: --The length of the sentence under the statute did. The guideline sentence in Chapman was not directly challenged. It was simply tracking along with the mandatory--
David H. Souter: So that the answer is yes, the sentence depended on the actual weight of the mixture or substance.
Donald T. Bergerson: --The sentence in Chapman--
David H. Souter: Well--
Donald T. Bergerson: --given the two alternatives--
David H. Souter: --the answer is yes, isn't it?
Donald T. Bergerson: --Yes. The answer is yes, Justice Souter. The sentence did depend on the weight of the blotter paper entirely because no other alternative was presented. Either one had to give Mr. Chapman a sentence--
David H. Souter: Well then, that was the holding of the case. Whether another argument or another alternative might have been presented is beside the point. That's what the case held. The entire weight will be considered and the sentence will be set accordingly. Right?
Donald T. Bergerson: --Right at the time, but now the term, mixture or substance, has been revisited by the Sentencing Commission which was tasked with the task of--
David H. Souter: Which means, on your view, the Sentencing Commission can, in fact, modify the holding of the case.
Donald T. Bergerson: --That is not my position, Justice Souter. My position is that the Sentencing Commission can, given the delegation that Congress has given to it, explore reality by means of the hearings that Congress has tasked it to do under section--
David H. Souter: And when reality has been explored, what is left of the holding in Chapman?
Donald T. Bergerson: --What is left of the holding in Chapman is the essentials of section 841, to wit that there is a market-oriented approach to drug sentencing, that the--
David H. Souter: But not the rule that the actual weight will be considered. That's gone.
Donald T. Bergerson: --That would be--
David H. Souter: That has yielded to reality.
Donald T. Bergerson: --That has yielded--
David H. Souter: Right?
Donald T. Bergerson: --to the new plain meaning--
David H. Souter: Yes.
Donald T. Bergerson: --of the term, and the reason that it yields to the new plain meaning of the term is because mixture or substance, as defined as gross weight blotter paper, with no input from the Sentencing Commission's expert study of the issue, is inconsistent with section 841(b) as framed by Congress.
David H. Souter: I'm not sure that it matters, but when we're talking about reality, is it correct to say, as I think the Government has pointed out, that the putative weight adopted by the commission is approximately 1/20th of the characteristic average weight?
Donald T. Bergerson: It is in fact.
Antonin Scalia: Mr. Bergerson, not only do I have some doubt whether we have to follow the Sentencing Commission, I have some doubt whether the Sentencing Commission doesn't have to follow us. Is there any way in which the Government can challenge the Sentencing Commission guidelines as in effect creating a skewed system in which you get a 10-year minimum on the basis of our holding, and then everything from there is computed on a very different basis? Apparently the commission thought that was okay, but it seems to me a crazy system. Is there any way in which what the commission says is challengeable as not being in accordance with the statutory law?
Donald T. Bergerson: Not under the delegation that's been given to the commission, Justice Scalia, to establish sentencing guidelines. The Government concedes and we agree that it--
Antonin Scalia: No matter how irrational those sentencing guidelines are? That is, you have a 10-year minimum based on our holding, and then they use a totally different basis for deciding the increments of punishment above 10 years, which seems to me quite irrational.
Donald T. Bergerson: --However, the totally different basis is entirely in keeping with the language of the statute because it punishes LSD in a--
Antonin Scalia: Theirs is and ours is, but you have the two of them working, and you say the commission's ought to prevail over ours. If I think that ours ought to prevail over the commission's, I wonder... but you say there's no way to set the commission right. Well, the Government can always go to Congress and ask that it not approve the Sentencing Commission's recommendations, can't it, the way it did with this crack cocaine thing?
Donald T. Bergerson: --That's correct, Mr. Chief Justice, and the Government can go to Congress and ask Congress to change the Sentencing Reform Act for 1984.
Antonin Scalia: Congress doesn't change things just because they're illogical. [Laughter] I mean, that's... Congress doesn't care about that sort of thing.
Donald T. Bergerson: Nonetheless.
Antonin Scalia: I mean, we do. [Laughter]
Donald T. Bergerson: Congress has given to the Sentencing Commission the power to do what it did and reserve for itself the power to do what the Chief Justice is suggesting.
Stephen G. Breyer: Did it exercise that power, assuming it had it? I mean, what's stopping me in this at the moment is it says, nonetheless this approach does not override the applicability of mixture or substance for the purpose of applying any mandatory minimum sentence, and then it cites Chapman, and then it cites 5G1.1(b), and in 5G1.1(b) it says, when a statutory minimum sentence is greater than the maximum guideline, apply the statutory minimum. Now, I know you could find some ambiguity in that, but it's hard to find more than ambiguity, and what it sounds as if they're saying is, we're changing it for purposes of the guideline, but the mandatory minimum in the statute of course trumps the guideline, and there's nothing here that suggests we're changing that in any way. That... I mean, that's what I'm concerned about from your point of view.
Donald T. Bergerson: I would respectfully disagree with that interpretation. Of course the statute trumps the guideline, and of course the commission is powerless to rewrite the statute. However, what I read the commission as saying in that passage is two things. First of all, it is proclaiming that the guideline is consistent with the statute. It does not override the statute for purposes of setting a mandatory minimum. Second, in light of the history, as I've outlined in my reply brief, of this amendment, the commission is simply proclaiming the process by which it reached its result.
Stephen G. Breyer: But if I were on the commission and were doing this thing, which is pretty radical, trying to change a case of the Supreme Court, interpreting a statute of Congress, which I can't remember an instance where the commission would try to do that, wouldn't the commission at least tell people what they were trying to do and explain it, rather than putting a sentence in the guideline that implies to an ordinary reading the contrary?
Donald T. Bergerson: Well, the sentence is in the commentary to the guideline, and to the degree that it's inconsistent with the guideline it's not binding on this Court under this Court's Stinson decision, but my submission would be that the guideline is plain enough and the delegation to the commission to do what it did is plain enough that the commission need not have said anything, and simply proclaiming that it is trying to be consistent with section 841 and this Court's reasoning in Chapman is nothing more than the commission's own statement of its own limitations.
Stephen G. Breyer: There's another question that you may have. I'm going to ask them the same question, but this is the great mystery here, which is a vacuum to me, and I'd like to try to find out about it. I, of course, think that these things make more sense than people sometimes think-- [Laughter] --and one of the efforts here and in Congress is, they don't make these numbers up. What they do is, they go to experts, particularly DEA, and they say to DEA, what should we do here to get our intent, so there was at some point some representation from DEA to Congress that would have told them how technically to write a statute that's going to achieve a particular objective. But the particular objective was to put big guys and big deal gangs in jail for 5 years or 10 years, 5 years medium, and less than 5 years, itty-bitty, all right. Now, what is the definition of this? Did Congress have in mind that a fairly big-sized expert, or drug guy, or LSD guy was a person with 125 doses, or a person that was trying to sell 2,500? Now, that's a huge difference, and somebody on the staff there would have found out from DEA and there would have been pamphlets, and there would have been writings about whether the dangerous people were 125-dose people, or 2,500-dose people. So you've looked into this. I haven't been able to find anything.
Donald T. Bergerson: In the Chapman dissent there is a footnote, footnote 12, which indicates that if you strip away the paper, then the doses become equivalent for all the drugs listed in section 841(b). That led the arguers in Chapman to believe that it was likely that Congress simply did not take into account the paper, but that issue has been decided. What we're saying now is that the DEA had equal input into the commission's definition, and that the commission's definition was done with reference to all the provisions of the statute.
Stephen G. Breyer: Yes, but this is quite later. At the time that this statute was passed, the DEA was going and telling the commission and Congress about the same thing as to how to write it, and so what I'm trying to figure out is, there must be a manual or something somewhere that refers us to whether it's 125 doses that looks... defines a fairly big guy, or 2,500 doses. That's the key to this, and what is it?
Donald T. Bergerson: The DEA's pre-1986 and post 1986 statements all weigh LSD in terms of pure LSD. That's the reference to which they make--
Stephen G. Breyer: It doesn't matter how you weigh it. What matters is whether you're trying to put the 125-dose guy in jail for 5 years, or whether you're trying to put the 2,500-dose guy in jail for 5 years. You can have any kind of weighing system you want, do it in a thousand different ways, but what's the objective?
Donald T. Bergerson: --In answer to Your Honor's question, the DEA did not provide input to Congress on the question that Your Honor has asked. The DEA provided data to Congress on the precise weight of pure LSD. However, if one looks at the statute and construes it as a whole in accordance with the jurisprudence of this Court, it is clear that Congress intended to punish these drugs in pari materia. The relevant language of the statute is not simply mixture or substance, but all the other references, to 10 years, different doses, different quantities, absolute quantities of drugs that yield roughly equivalent doses, and one assumes that the commission was correct in interpreting the statute to mean that what Congress wanted was to go and have LSD punished at roughly the same level as the other drugs.
Ruth Bader Ginsburg: Mr. Bergerson--
Donald T. Bergerson: Yes.
Ruth Bader Ginsburg: --are you making at least as a fallback argument the suggestion that the Court has ruled one way in Chapman, it should be enlightened but not bound by what the Sentencing Commission has done, and therefore reconsider and modify Chapman? Instead of trying to make two inconsistent things consistent, which seems to be the thrust of your argument up to now, to say the Sentencing Commission thought about this, the Court ought to reconsider?
Donald T. Bergerson: That is one position, Your Honor. I would clarify it to say the Sentencing Commission did not merely think about it but studied the market to such a degree as to give the words used in the statute a new plain meaning in the real world and therefore this Court--
Ruth Bader Ginsburg: I find it powerfully hard to take the term plain meaning, which should mean the word means something plain, and then say because there was an expert commission that gave this a lot of study, then the plain meaning, the meaning that people, ordinary people would understand, changes.
Donald T. Bergerson: --Yes, Your Honor. I will point out, however, that the commission studied the drug market to which the statute directly pertains according to the legislative history of the statute and according to the finding of this Court in Chapman and, studying that drug market, came up with the definition it has here.
Antonin Scalia: We couldn't possibly have interpreted the statute to mean anything resembling what the commission says it's going to use for purposes of sentencing, could we? How could you possibly get that out of the language of the statute?
Donald T. Bergerson: On the record presented to you in Chapman, you could not, Your Honor, because Chapman involved no comment from the Sentencing Commission, having undertaken expert study.
Antonin Scalia: Even with a comment or without a comment, we can't read, you know, the word mixture to mean, you know, so many doses. That's just... that's legislating, it's not interpreting a text at all.
Donald T. Bergerson: Your Honor, we submit that it is not legislating. We submit that what the commission did was study the weights of drug mixtures in the actual--
Antonin Scalia: How would you have us interpret the language in Chapman? What is it you think we should have said in Chapman the relevant language means?
Donald T. Bergerson: --What we would submit is that--
Antonin Scalia: The language in question is what, mixture?
Donald T. Bergerson: --Well, the language in question is the statute as a whole, but turning to mixture in the context of the statute--
Antonin Scalia: Mm-hmm.
Donald T. Bergerson: --I would submit that a mixture or substance containing LSD means that quantum of LSD which yield sentences consistent with the obvious intent of Congress to regulate street drugs in like quantities with like mandatory penalties in the form they're sold on the market.
William H. Rehnquist: You deduce that just from the language, a mixture or substance containing a detectable amount of LSD?
Donald T. Bergerson: I deduce that from the market-oriented approach of the statute--
William H. Rehnquist: Well, but--
Donald T. Bergerson: --which is where this Court achieved its deduction in Chapman as well.
William H. Rehnquist: --That the Court described Congress' approach as a market-oriented one, that may be helpful in deciding what a word means, but it doesn't enable one to simply apply the language that Congress has used and say well, anything market-oriented will do.
Donald T. Bergerson: What Congress intended to do, Your Honor, was to--
William H. Rehnquist: Well, we know best what Congress intended to do from the language it chose, and it chose the language, a mixture or substance containing a detectable amount of LSD.
Donald T. Bergerson: --That's correct, but what Congress intended to do with that language was to plug it into the remainder of the statute, and the remainder of the statute provides like penalties for different amounts of drugs which, if interpreted in the manner done by the commission, yields results consistent within the statute with other drugs--
Antonin Scalia: I understand... all I want to know is what you think we should have said. Just tell me how the opinion would have read in Chapman had you written it, in light of, you know, later developments at the commission.
Donald T. Bergerson: --Your Honor, this is an evolutionary process. The commission hadn't spoken at the time of Chapman, although in Chapman this Court looked to the commission for guidance on the issue. Had the commission--
Antonin Scalia: You're not listening to my question. I just want to know what you think Chapman should have... suppose we were rewriting Chapman today. What should it say? Mixture or substance means what?
Donald T. Bergerson: --Chapman posed a different issue. Reconsidering the issue of what mixture or substance means in light of the reality found by the commission in its exploration, mixture or substance means what it says in amendment 488. It means.4 milligrams per dosage unit of LSD, so as to cohere the statute amongst itself--
Antonin Scalia: Wow.
Donald T. Bergerson: --and to cure penalties with other penalties for like drugs.
Antonin Scalia: You think a court can interpret mixture or substance to mean.4 milligram dosage of LSD?
Donald T. Bergerson: Not in a vacuum, Your Honor, but Congress established the Sentencing Commission to do precisely what it did here.
William H. Rehnquist: But it didn't establish the Sentencing Commission to amend the provisions of the Criminal Code.
Donald T. Bergerson: Nor did it.
William H. Rehnquist: The Criminal Code remains what it is.
Donald T. Bergerson: Absolutely, and that's why the Sentencing Commission proclaimed that its findings were consistent with Chapman and with the statute. The commission didn't amend the Criminal Code. It kept mandatory minimum sentencing in the form that it was intended by Congress to be.
William H. Rehnquist: But if the Criminal Code is not amended, then you still have the language to deal with, mixture or substance, and to say, well, now we see that mixture or substance means.04 grams of something when the statute doesn't say anything like that, is just a tremendous leap.
Donald T. Bergerson: It has always been in the tradition of this Court's jurisprudence to defer to expert agencies in defining the realities of the--
William H. Rehnquist: Well, you mean we must defer to the Sentencing Commission in defining the terms of the Criminal Code? I thought we defined those.
Donald T. Bergerson: --No. The Sentencing Commission did not define the terms in the Criminal Code.
William H. Rehnquist: But you're saying it did.
Donald T. Bergerson: I'm saying that the Sentencing Commission has come up with an interpretation of mixture or substance as it exists in the real drug markets. That, in turn, references back to the Criminal Code.
William H. Rehnquist: That sounds all very well, but just what exactly does it do? The Criminal Code says one thing. It was enacted by Congress, and it uses some words. The Sentencing Commission now meets and says that for guidelines purposes this means.04 something, and then we simply go back and say, well, now we see that the term mixture or substance as Congress... means.04?
Donald T. Bergerson: Your Honor, the Sentencing Commission did not define the words mixture or substance.
William H. Rehnquist: You simply don't answer the questions, Mr. Bergerson. Are you through?
Donald T. Bergerson: My answer is that the Sentencing Commission did not do what... it did not define the terms in the statute. It gave an explanation of those terms in the drug market as it was chartered by Congress to study the drug market, and it is to the commission that courts must look in terms of seeing what those words mean in the drug market Congress sought to regulate under section 841. I would reserve the balance of my time.
William H. Rehnquist: Very well. Mr. Wolfson, we'll hear from you.
Paul R. Q. Wolfson: Mr. Chief Justice, and may it please the Court: In Chapman v. United States this Court held that the actual weight of the entire carrier medium must be used to determine whether the defendant is subject to the mandatory minimum sentencing statute for trafficking in LSD, and the question in this case is whether that rule was changed by the Sentencing Commission's new LSD guideline, which does not use the actual weight of the drug and the carrier, but instead uses a constructive weight for each dose of LSD and calibrates the defendant's sentence essentially to doses of LSD.
Antonin Scalia: Can they do that? Can they just ignore our interpretation of what the statute means in determining what the penalties are going to be under the statute?
Paul R. Q. Wolfson: Not for the purpose of determining what the penalties mean, are under the statute, no. The Sentencing Commission does not have the authority to construe terms in the mandatory minimum sentencing statute.
Antonin Scalia: It seems to me we're in a very strange position here, where the minimum is determined, now determined on the basis of one theory and the length of time in prison, unless the minimum interferes, is being determined on a totally different theory. Doesn't the commission, in drawing up its proposals, have to adhere to the meaning of the law as we've determined it?
Paul R. Q. Wolfson: Justice Scalia, we don't argue that... leaving aside how the minimum applies, the Sentencing Commission does retain authority except for that point. In other words, for sentences that fall below the 1-gram threshold, the Sentencing Commission has its plenary authority, and--
Antonin Scalia: It's not plenary. I mean, it's not arbitrary either. There's no such thing as an arbitrary decision by the commission?
Paul R. Q. Wolfson: --There is such a thing as an arbitrary decision by the commission if it were inconsistent with the Sentencing Reform Act of 1984, but we're not taking the position--
Antonin Scalia: But not... inconsistency with the criminal law whose penalties they're prescribing doesn't count. There's--
Paul R. Q. Wolfson: --Well, for sentences that are less than 1 gram, the penalty statute doesn't apply, so it doesn't... the statute only applies for 1 gram or more, or 10 grams or more. It's a two-step threshold.
Antonin Scalia: --I understand, but once the minimum applies, you agree that the minimum bears no relationship to the rest of the sentencing scheme.
Paul R. Q. Wolfson: Once the minimum applies... well, this Court construed... construed Chapman, construed the minimum statute in Chapman, and the Sentencing Commission cannot... the Sentencing Commission does not have the authority to determine when the statute comes into play, but other than that--
Antonin Scalia: Other than that--
Paul R. Q. Wolfson: --Other than that, yes--
Antonin Scalia: --It doesn't have to construct the sentences based upon the meaning of the criminal law as this Court has interpreted the criminal law?
Paul R. Q. Wolfson: --Congress did not require the Sentencing Commission to use the mixture or substance approach with respect to its own guidelines. Now, it did that... it did that at the time that Chapman was decided by this Court.
Antonin Scalia: I mean, Congress didn't say that explicitly, but with other agencies we certainly can say that a particular rule made by the agency produces such an illogical result that it's arbitrary, and therefore... is there any way the commission's decision on these matters can be reversed as being arbitrary, as being contrary to law, or whatever it says is law automatically?
Paul R. Q. Wolfson: If it's inconsistent with the fundamental statute, which is the Sentencing Reform Act, then a guideline could be invalid, but it cannot be--
Antonin Scalia: That's the only thing it can contradict--
Paul R. Q. Wolfson: --It cannot be challenged... it cannot be challenged on the basis that it is... on this basis that it's inconsistent with the mandatory minimum statute, and--
Ruth Bader Ginsburg: --But it could if it worked against-- --The defendant. --the defendant.
Paul R. Q. Wolfson: --If it were... yes. If it were wholly arbitrary enough to deny the defendant due process, but I... that simply is not the case... that is not the case here.
Antonin Scalia: Well then, if that's the law... you're saying whatever the commission does is the law, then I assume that the defendant who gets hit with a mandatory minimum in a scheme that's totally different from the scheme that the commission is using for the rest of the statute, he has that claim. It seems to me either the guidelines or our interpretation of Chapman denies... it puts somebody in a very weird position. Somebody must have a claim here, and you're saying you can't challenge what the commission does.
Paul R. Q. Wolfson: What the commission did within its own bounds, the guideline is certainly valid, and it has the effect of considerably lowering the sentences for LSD trafficking both below the 1-gram threshold and between... between the 1 and 10-gram threshold it brings most of them down to 5 years, and then above the 10-gram threshold it brings many sentences down. Now, within the confines of its authority, we believe that the guideline is valid, but the commission does not have the authority to determine or to redetermine, because it would require a reexamination of this Court's decision in Chapman, when those statutes are triggered, and Congress did not delegate to the commission the authority to determine when the mandatory minimum sentencing statute applies. And even if it were otherwise, the... our position is there's no way that you can... that the commission... the commission's new LSD guideline, the approach that it takes to sentences for trafficking in LSD is not consistent with the Court's definitive construction of the statute in Chapman. In Chapman, the Court construed the terms that were in the statute, mixture or substance, and it used traditional tools of statutory interpretation to arrive at its construction. It looked at the ordinary meaning of the words that were in the statute. It invoked the canon of interpretation that every word in the statute has to be given effect wherever possible, and as a result it concluded that so long as it contains a detectable amount, the entire mixture or substance is to be weighed when determining whether a defendant is subject to those statutory penalties. Now, the new guideline really is not consistent with that approach. The two approaches are not the same at all, because the new guideline--
Antonin Scalia: You'd think that the more mixture you got, the more punishment you'd get, and what the commissioner has said is, no, that's not true, even though we have said the statute is based on what the mixture weighs.
Paul R. Q. Wolfson: --That is correct. The statute is based on--
Antonin Scalia: The commissioner said the punishment isn't going to be based on what the mixture weighs.
Paul R. Q. Wolfson: --I guess--
Stephen G. Breyer: The... I mean, you answer it as you wish. I would have thought there are lots of statutes that govern the commission, and sometimes it's not possible to be literally consistent with the policy underlying each of them, but that's primarily a judgment for the commission, isn't it, and if it decided here that this was too tough, the mandatory minimum, because of policies involving in other statutes, maybe it has the statutory authority to do that, and then leave the statute in place, because, of course, it can't trump a statute. I mean, if that's... what I'm sort of interested in here, though, is... look, does the commission have some authority to interpret a statute in the following sense. You have a piece of blotter paper. There isn't chemical binding between every molecule on the blotter paper. Suppose they throw LSD into the Atlantic Ocean. You don't weigh the entire Atlantic Ocean, so there must be some... some technical matter where the commission might, because of its knowledge, let us know how much of the binding that takes place in a matter of degree is that portion of the paper that should count, because they would go talk to the technical experts on that. Now, I guess in that sense the commission, while it couldn't legally bind the courts, could tell the courts some information that might be relevant to them in deciding how much to weigh, how much of this piece of blotter paper is actually part of the mixture or substance connected with the LSD. It could do that, couldn't it?
Paul R. Q. Wolfson: --Justice Breyer, I... the commission's information could be useful to the court, but the task at the end of the day is a pure one of statutory interpretation.
Stephen G. Breyer: Oh, but... yes.
Paul R. Q. Wolfson: Is this... in the indication... in an unusual situation where there is doubt as to whether something is a mixture or substance, that fundamentally is a question of--
Stephen G. Breyer: It's not so unusual. I take it that the molecules of the LSD thrown into the Atlantic Ocean might be dispersed among yards and yards or miles and miles of water, and so there will have to be a point where people will talk about the concentration of the LSD interspersed with the other molecules that bring it within the range, mixture or substance, and when it makes that kind of a decision, shouldn't the courts and the commission also take into account the policy that underlies this statute, namely, how big a guy Congress wants to put in jail for 5 years.
Paul R. Q. Wolfson: --The courts take into account the objective the Congress was seeking to accomplish when it enacted the statute when it gives content to the terms, and whether it considers whether a result in a particular case is demonstrably at odds with what Congress intended, and comment by the commission can be useful to the court. It can help the court understand whether it is reasonable to conclude that something was or was not an intent that Congress intended, but it is not deference in the sense that this Court conventionally uses that term as a presumptively binding interpretation of a statute in the absence of a showing that it is unreasonable.
Stephen G. Breyer: So I agree with that, but then that... this is my... what I'm trying to lead up to basically is the Government must have in its file somewhere the information that Congress had in its mind, whether staff or Congressmen, at the time this statute was passed, and did Congress believe that they were putting in prison for 5 years people who distributed 125 doses of LSD, or did they think they were putting in prison for 5 years people who distributed 2,500 doses of LSD? They could have read it in pamphlets, they could have talked to LSD people, maybe it's in hearings, maybe it was in memos, what's the answer to that question?
Paul R. Q. Wolfson: Justice Breyer, I have to say I do not know of the pamphlet that you are looking for. I will say that in the legislative history to the Anti-Drug Abuse Act of 1986, there is a comment that the 5-year penalty is intended for the people who keep the street market going. The 10-year is intended for the people higher up the chain, the 5-year in general is for the people who keep the street market going, the people who fill the vials, who pass out the baggies, that sort of thing. I do not think that it is implausible that 120, even 125 doses of LSD could answer to that description. That's a... that is certainly somebody who is keeping the street market going, and that is... Congress could definitely conclude that that was somebody who would warrant 5 years.
John Paul Stevens: But does 125-dose test apply to other drugs in the same way?
Paul R. Q. Wolfson: Justice Stevens, I have to acknowledge that the doses for LSD that bring into play the 5 and 10-year penalties are less than... are lesser, fewer, rather, than they are for other drugs, but of course, that was before the Court in Chapman--
John Paul Stevens: That was the argument the Court rejected in Chapman.
Paul R. Q. Wolfson: --That was before the Court in Chapman, and essentially I think the petitioner is left with urging the same arguments and asking the Court to reconsider Chapman.
Ruth Bader Ginsburg: In the light... in that light of reconsideration, would the 4....4 solution that the commission has come to, would that have been a permissible interpretation of the statute for the Court? Let's assume that the guideline interpretation came first. The Seventh Circuit had dealt with the Chapman issue, but this Court had not. Enlightened by the guideline, would it have been impermissible interpretation of the mixture or substance statute?
Paul R. Q. Wolfson: No. Justice Ginsburg, I do not think that it is... even if the question were still open in Chapman, or if the Court were reconsidering the matter, this is not a permissible interpretation of the statute because the only reasonable reading of the statute I think is an actual... the actual weight of an actual mixture or substance. The statute says 1 gram or more of a mixture or substance. It does not refer to hypothetical abstract or constructive weight, constructive--
John Paul Stevens: May I give you... I hope it's not too hypothetical. Supposing that you have a blotter on which you normally drop a spot of ink, and you can have a blotter that's about 4 inches long, and you see the spot of ink on it. A lot of the blotter is white, and then there's a dark blue... you can also have a blotter such as we have here, about 3 feet by 5 feet, same drop of ink on it. Would it be permissible to say that the mixture or substance merely includes the discolored portion of the blotter, because the rest of it isn't mixed with the ink at all?
Paul R. Q. Wolfson: --I think there are situations in which, because mixture means a situation in which the molecules are interspersed or distributed--
John Paul Stevens: Correct.
Paul R. Q. Wolfson: --among another, and that's how the Court interpreted mixture in Chapman. There could be very extreme situations in which an infinitesimal amount of a substance is mixed, but that's certainly not this case--
John Paul Stevens: No, it's a clearly detectable amount in order to qualify, and you can see... with an ink blotter, it's easy. You can see how far it is. But supposing it's LSD, and you'd have a huge blotter on the one hand and a tiny blotter on the other. Do you think it's irrational to treat them the same, even though the amount of the mixture, the geographical scope of the mixture is precisely the same?
Paul R. Q. Wolfson: --I think there are situations where you could exclude the 99 percent of unmixed blotter paper, but that is not, I must emphasize, what the commission was doing, and I have to say I think it is... I do not think it is correct to say that the commission was really defining or considering what is a mixture, or what is a mixture or substance. I don't think that is really what the commission was doing. It's true that they used the... they kept in place the drug quantity table for purposes of convenience, and they used language referring to mixture or substance except as otherwise provided, but really what they were doing was putting... setting aside, departing from a system of sentencing based on the weight of the substance and relying, and adopting a scheme based on sentencing calibrated to the number of doses distributed. Now, it's true that for purposes of convenience they assigned to each dose a particular weight, and that I think was just so they wouldn't have to write a new drug quantity table solely for LSD, because they had in place this useful system. But I think it's wrong even to say that the Sentencing Commission was reconsidering what is a mixture, they really were just adopting a new--
John Paul Stevens: Just saying how much of the mixture shall we count.
Paul R. Q. Wolfson: --No, I... not how much of any actual mixture. They were... in other words, they weren't saying, take a piece of blotter paper and arrive at some reasonable judgment of how much is soaked with LSD. They didn't even do that, and that--
John Paul Stevens: Really what they tried to do is take this market approach to it, but they still left this substance still much more heavily punished in terms of number of doses, even under the commission's formula.
Paul R. Q. Wolfson: --Well, the commission believed that it was bringing the penalties roughly in line with other substances, including PCP, making it punished slightly less than PCP because it believed that ought to be the case, but--
Antonin Scalia: Well, that depends on whether you think the statute was punishing the sale of mixtures or substances or whether it was punishing the sale of hits--
Paul R. Q. Wolfson: --Well, the statute was--
Antonin Scalia: --and the statute says mixture or substance, and that's how we interpreted it, and I don't know why the commission can conclude that really Congress was looking at... you know, it's like the prohibition law that somehow it's... as far as I was aware, it applied to whether the liquor was 40 proof or 100 proof. It didn't matter.
Paul R. Q. Wolfson: --That is correct, and that was the original approach under the 1970 Controlled Substances Act, that substances were punished. It was any mixture or substance containing whatever--
Antonin Scalia: Well, any mixture, and that's how we interpreted subsection 5 here, and I don't know where the commission gets off interpreting it differently for purposes of deciding what the incremental penalties are. Our holding clearly is that section 5, as it says, applies to mixture or substance, and then the commission comes in with a sentencing scheme that uses a totally different criteria quite inconsistent with our holding in Chapman.
Paul R. Q. Wolfson: --Justice Scalia, I don't think that the commission was purporting to say when did the statute apply. They were drawing up their own system, but they... I do not think... there's been a lot of discussion about what does the background commentary mean, where it says this approach does not override the applicability of mixture or substance, see Chapman and 5G1.1(b). I think what that indicates is the commission recognized that Chapman and the binding force of section 841 were controlling. It could not overturn that, and 5G1.1(b) clearly indicates that where there is a conflict between the statute and the guideline sentencing range, the statute controls in every case. However, when you read what the commission did, they were not deciding when did the 5-year and when did the 10-year mandatory minimum sentence come into play. They were setting... and so I don't think you even get past the threshold, which is, they were not purporting to overrule Chapman or decide when the statute applies. They were setting up their own--
Antonin Scalia: That may well be, Mr. Wolfson, but I have the distinct impression that if any other agency that I know of interpreted a statute this way, that the minimum applies to the mixture or substance, but the incremental penalty does not apply to the mixture or substance but to the number of grams in the mixture or substance, we would say, you can't have it both ways.
Paul R. Q. Wolfson: --Well, of course--
Antonin Scalia: The statute simply is... you must be consistent. This is irrational. It is arbitrary and capricious, and therefore the rule you've adopted is invalid. Now--
Paul R. Q. Wolfson: --Well, of course, had there been no Sentencing Commission at all, had this just been left to the discretion of the district judges, as it was before... of course, there wasn't any mandatory minimum sentence, but had there just been mandatory minimum statutes and pure discretion of the district judges, the district judges could have sentenced all offenders who came within the reach of the statute at the low end--
Antonin Scalia: --There would have been nothing inconsistent with any law, however. And why concede that it's irrational, because after all, the commission operates under a mandate, which is to make sense of a crazy quilt of criminal punishment sentences statutes which create a crazy quilt of policies that one cannot live up to each policy in every area that the statute doesn't cover, right? That's their basic mandate.
Paul R. Q. Wolfson: --I certainly--
Stephen G. Breyer: So in fact there is no way to follow the mandatory minimum drug penalties into areas where they don't... I mean, all right. Anyway, we--
Paul R. Q. Wolfson: --I certainly don't believe that there was an irrational result, and the petitioner had--
Ruth Bader Ginsburg: --Mr. Wolfson, is this discussion academic to the extent that there's nobody qualified to challenge what the commission has done for the purpose of computing the guideline sentence? That is, you could have said to Congress, don't let this one go through because we disagree with it, but you are not equipped now, you have no way of asking this Court, and you're not asking this Court to change the commission's interpretation.
Paul R. Q. Wolfson: --We are certainly not asking this Court to hold that the guidelines are invalid, the guideline sentencing range are invalid, even after--
Stephen G. Breyer: And that's what this... what I... the interesting problem to me, which I don't have the answer to, is this is a statute that if you take it literally it seems as irrational as any that we've come across, because it seems as if somebody threw LSD into the Atlantic Ocean, you would weigh the entire Atlantic Ocean, and so what is it... what way is there to interpret this statute that does not produce in some instance absurd results? How do you define mixture and substance to avoid that very odd result?
Paul R. Q. Wolfson: --Well, first, this is clearly not a case where... a case like that.
Antonin Scalia: If he sells the Atlantic Ocean you'd get him, wouldn't you, for the minimum? [Laughter]
Paul R. Q. Wolfson: I--
Antonin Scalia: Would you get him for the minimum or not?
Paul R. Q. Wolfson: --I would have to--
Antonin Scalia: You would pursue for the minimum, would you not?
Paul R. Q. Wolfson: --But I would expect to be rebuffed.
Antonin Scalia: Worried about that happening? [Laughter]
Paul R. Q. Wolfson: I don't think... I think that Congress can certainly write a statute for the majority of the cases, and that's what Congress has done here.
Antonin Scalia: Mr. Wolfson, my line of inquiry is not academic. I seriously do not know whether I can go along with the Government if I think that the result of going along with the Government is endorsing a system that has such incompatible sentences. It is irrational, to my mind, and you are telling me that there is nothing that the Government can do about the guidelines, is that right, so that my only choice is to reinterpret the statute.
Paul R. Q. Wolfson: No, the Government has... in other cases, the Government... there are cases currently going on in the Federal system where the Government is challenging the validity of a guideline, not as inconsistent with... not as inconsistent with a separate penalty statute--
Antonin Scalia: Yes.
Paul R. Q. Wolfson: --that the Sentencing Commission does not have authority to construe, but as inconsistent with provisions of the Sentencing Reform Act.
Antonin Scalia: But it is the Government's position that the guidelines can be as inconsistent as you like with the substantive criminal statutes, including minimums. Is that the Government's position?
Paul R. Q. Wolfson: If they are inconsistent in the sense... if they are inconsistent in the sense that they interfere with the ability of the minimums to apply, obviously not, but if they are within the Sentencing Commission's own sphere, own domain, as is the case with less than 1 gram here, that that... the Sentencing Commission is not--
Antonin Scalia: Why can they not be unlawful because they are incompatible with the substantive criminal statute?
Paul R. Q. Wolfson: --Because the Sentencing Commission is not under a statutory obligation to bring those guidelines into conformity with the... with 841(b) for offenses that don't meet the threshold for that statute to apply. The Sentencing Commission is following its general authority under--
Antonin Scalia: Well, then you have a problem with me. If they don't have to follow us, maybe we should revise our law to follow them, because otherwise the system in place seems to me quite irrational.
Paul R. Q. Wolfson: --Well, now, Justice Scalia, let me point out that, of course, Congress could have decriminalized LSD altogether under 1 gram. There could be no penalty, and... or Congress could have said, for 1 gram or less, we simply don't think it's a matter of Federal concern, and we'll leave it up to the States to punish. Now, there would be nothing--
Antonin Scalia: Congress could be irrational. They are entitled to be irrational. Agencies cannot. We have doctrines about arbitrary and capricious agency action.
Paul R. Q. Wolfson: --Well, on its own terms, of course, there's... what the Sentencing Commission has done, the scheme that they have set up is not arbitrary. It's appropriate to base... we would agree that it would be appropriate to base a sentencing scheme on doses of LSD, but it's not arbitrary and capricious, but neither is it contrary to law, because it does not run up against any limit on the Sentencing Commission's authority to set--
William H. Rehnquist: Nothing in the submission of this case raises any question about the rationality of the guidelines, does it? The petitioner was sentenced under the provisions of Chapman.
Paul R. Q. Wolfson: --That is correct.
William H. Rehnquist: He said he should have been sentenced under the guidelines and the district court refused to do so, and the court of appeals upheld it.
Paul R. Q. Wolfson: That is correct, so--
Ruth Bader Ginsburg: Well, the guidelines did have an impact to this extent. He ended up with less--
Paul R. Q. Wolfson: --Yes.
Ruth Bader Ginsburg: --than he did when the commission was interpreting the guideline in sync with the way this Court has interpreted the statute.
Paul R. Q. Wolfson: Yes, and we agreed--
Ruth Bader Ginsburg: There was a lot of months difference, wasn't there?
Paul R. Q. Wolfson: --Yes. It was I think almost 5 years, 5 or 6 years difference in his sentence, and we agreed to that extent, that he was entitled to a reduction in his sentence down to 120 months.
Antonin Scalia: Mr.-- --He points to somebody else who has sold a whole lot more of grams of the substance, and this other person who's sold a whole lot more still only gets 10 years.
Paul R. Q. Wolfson: Well, of course, Congress could have adopted a determinate sentence approach as well. This again was before the Court in Chapman, and had Congress said, if you sell 10 grams or more of a mixture or substance for LSD, you get 10 years, no... you know, no... nothing higher, nothing lower. That's a... it's a completely determinate sentence. That would be rational, and that was a system in sentencing that was common in this country until a generation or so ago.
Sandra Day O'Connor: Mr. Wolfson, if the Government did think that what the guidelines... what the Sentencing Commission did in adopting a particular guideline was irrational in light of the statutory language and the scheme that's in place, exactly what is it that the Government can do to challenge it? You can tell Congress when they're looking at the guidelines that you don't think it should be allowed to go into effect?
Paul R. Q. Wolfson: Two things. Certainly during the 180-day period we could go to Congress and ask Congress--
Sandra Day O'Connor: And failing that, if that is not done, you just were asleep at the switch over there in looking at it, what later could you do?
Paul R. Q. Wolfson: --In another... in a case involving a different issue, we... the Attorney General has instructed the U.S. attorneys to oppose application of a guideline in particular cases and to appeal sentences if they're based on the guidelines, because in that case we believe they're inconsistent with the Sentencing Reform Act.
Sandra Day O'Connor: With the statute, and therefore irrational and arbitrary and invalid.
Paul R. Q. Wolfson: I would say contrary to law, is how I would describe it.
Anthony M. Kennedy: And then if you prevail in that, what happens if the guideline is simply obliterated? I mean, what's left?
Paul R. Q. Wolfson: Well, in that case--
Anthony M. Kennedy: In this other case you're--
Paul R. Q. Wolfson: --Right. In another case we... it's our position that there's a statute that requires... it requires the Sentencing Commission to base guidelines on a... the highest available sentence under a statute, and the question is whether that... if I have it correctly, whether that involves... the calculation has to be made with--
Anthony M. Kennedy: --Then sentencing--
Paul R. Q. Wolfson: --counting prior convictions or not.
Anthony M. Kennedy: --And sentencing is just held in abeyance until there's some new guideline.
Paul R. Q. Wolfson: In that case we think there's only one possible interpretation of the statute.
Anthony M. Kennedy: I see.
Paul R. Q. Wolfson: In sum, as earlier, we argued that the Chapman rule remains the controlling interpretation of section 841, and we would request the judgment of the court of appeals be affirmed.
William H. Rehnquist: Thank you, Mr. Wolfson. Mr. Bergerson, you have 4 minutes remaining.
Donald T. Bergerson: Thank you. Congress created the Sentencing Commission with the idea of reconciling and eliminating precisely the irrationalities we have now been talking about for an hour, and which we've been talking about since the Chapman case. The place is to inform the courts of the realities of criminal sentencing, and that's why this case is before this Court now. The commission recognized in this case by a factual finding of great quality and depth that the sentencing in LSD cases was irrational and not consistent with the statute as it interpreted as a whole, but more than that, it defined the reality of what mixture or substance containing LSD means in accordance with the market realities of 841. It didn't purport to overrule this Court, and it said it wasn't doing so, but it did give a new plain meaning to the word. This Court recognized that the commission had precisely this place in the scheme of things. What we're asking the Court to do is to allow the commission to do here what the commission does all the time, which is to establish binding guidelines for sentencing in criminal cases. Our position is that.4 milligrams of LSD is a mixture or substance containing LSD within the meaning of section 841(b) in light of the realities, and that under this Court's jurisprudence, deference should be paid to what the commission has done. If there are no further questions, we would submit.
William H. Rehnquist: Thank you, Mr. Bergerson. The case is submitted.
Speaker: The honorable court is now adjourned until tomorrow at ten o'clock.