William H. Rehnquist: We'll hear argument now in No. 93-289, John H. Dalton v. Arlen Specter. General Days.
Drew S. Days, III: Mr. Chief Justice, and may it please the Court: On November 5th, 1990, the President signed into law the Defense Base Closure Act at issue in this litigation. The 1990 Act was the product of vigorous efforts on the part of both the Congress and the President to remove partisan and procedural obstacles that historically had made it nearly impossible to achieve a timely and orderly close of domestic military bases deemed unnecessary to the national security. The compromise arrived at by the legislative and executive branches with respect to this particular issue embodied several critical features. First, the President was to be held personally responsible for the decision. Secondly, there would be extensive congressional oversight and involvement. Third, there would be an independent commission established to make recommendations to the President, and there would be a single indivisible package made available to the President by the Commission. The entire process would be one that would be completed within a 6-month period. Central to this process was that it would remove concern for what was referred to as cherry-picking. That is a practice that contributed to the criticism of the pre-1990 base closure actions and impasses between the Congress and the President, where on a base closing list one particular base would be picked out and removed from that particular determination. Between April 15th and July 30th, 1991, as... insofar as this lawsuit is concerned, every party had completed what was required of that party under the 1990 Act. The Secretary of Defense had made his recommendation for base closures and realignments, and the Commission had held hearings on 82 closures or realignments. The President had approved the entire list and transmitted it to Congress, and Congress, having held hearings on that particular list, had declined to enact a Joint Resolution of Disapproval.
Sandra Day O'Connor: General Days, I would like to ask you what your position is as to the role of the President in this scheme? I guess the President has to either approve the entire list or reject the entire list. The President isn't authorized to pick and choose.
Drew S. Days, III: That's correct. That's central to the scheme.
Sandra Day O'Connor: All right. Does the President have any obligation to review the proceedings below for irregularity?
Drew S. Days, III: He does not. There's nothing--
Sandra Day O'Connor: Could the President do that? Could he decide that there were irregularities in the process and therefore he wouldn't approve?
Drew S. Days, III: --There is nothing in the statute that would prevent that. In fact, the President can reject the list that's submitted by the Commission and send it back to the Commission for further deliberations and a new list.
Sandra Day O'Connor: But in your view, not obligated to review procedurally.
Drew S. Days, III: No, he is not obligated under the terms of the statute.
Antonin Scalia: Is the Commission subject to the President's direction in any respect? Could he stop the Commission from behaving improperly in developing its recommendations if he wanted to?
Drew S. Days, III: There is nothing in the statute that reflects that power on the part of the President. Of course, the President appoints the Commission after consultation with both sides of the aisle in the Congress, but there is no direct supervision by the President of the activities of the Commission. The Congress, however, does have a very active role to play in this process. There are at least 10 points in the process where Congress has a role to play, starting with the appointment of the Commission itself, and moving through the point where Congress has the ability to enact a Joint Resolution of Disapproval. So that one would presume that... although it's not explicit in the statute, that Congress could make its views known during this entire process. And, indeed, I think the facts were that Congress did make its views known from time to time, leading up to this base closure decision.
Ruth Bader Ginsburg: General Days, the normal presumption is that legislation and its operation will be subject to judicial review. There's no express preclusion in this legislation. Can you summarize for us your argument of why the absence of judicial review is implicit in this scheme?
Drew S. Days, III: Yes, Justice Ginsburg. You're certainly right that the presumption exists in favor of judicial review, but I don't think the Court has ever held that that presumption and the use of the term "clear and convincing evidence" was designed to impose an evidentiary standard in the sense that we would be talking about if we were talking about parties and the shifting of burdens. But we think that even given that presumption of review, it is weaker in a situation such as this where military sensitivities are involved. When one is talking about, we must remember, a decision by the Secretary of Defense as to what are the military needs of the United States over a 6-year period, and then trying to work out a closure process that is consistent with that particular determination, and it is a decision ultimately by the President acting in, among other things, his capacity as commander in chief.
William H. Rehnquist: Well, might this be different, General Days, if some sort of individual rights in the traditional sense were involved, as they don't seem to be here?
Drew S. Days, III: Certainly, Chief Justice Rehnquist. The U.S. Reports reflect the fact that there have been occasions where this Court has exercised jurisdiction, or lower Federal courts have exercised jurisdiction where there was an identifiable right, either a common-law right or a constitutional right. But I think one searches in vain in this case to identify such a right. There is not a common-law right. And, indeed, the Third Circuit rejected the notion that there was a constitutional right presented by this case. There was an assertion in the complaint of a due process violation flowing out of some of the errors that the plaintiffs identify, the respondents identify, but the Third Circuit rejected that particular claim. And, as I understand it, respondents now are pressing their constitutional claim, their due process claim, before this Court.
David H. Souter: So you didn't put it this way, but basically you're saying this is just a pact, a kind of a modus vivendi between the two political branches.
Drew S. Days, III: That's correct, Justice Souter. This was the result of a very long period in which the Congress and the President, for a variety of reasons, found themselves unable to agree upon how base closures should be handled. In 1988 there was an act that pointed in the same direction as this 1990 Act, but it was for 1 year. This particular act incorporated many of those features that the Congress and the President felt had worked well, that had removed most of the avenues for political maneuvering and obstruction, procedural obstruction, which had really prevented the Government from doing what I think everyone recognized needed to be done, given the enormous costs that are incurred when an obsolete base is kept open year after year, and also when it's not needed for the protection of the United States. So we see this very much as an understanding between the President and the Congress as to how to do this most effectively, and I mentioned--
Ruth Bader Ginsburg: That's a different response than the one that you gave earlier, that judicial review is out of the ballpark because of national... because national security is involved because these are military bases. The answer that you're now giving to Justice Souter seems to be that this was a determination between the two branches, that this was a matter for them to determine, perhaps--
Drew S. Days, III: --Justice Ginsburg, I don't think my responses are inconsistent. I just wanted to respond to your point about the presumption, and I think the presumption is weaker under these circumstances. But I think the history and the structure and purpose of the Act also suggests that judicial review was not viewed by the Congress or anticipated by the Congress as an appropriate way to deal with whatever problems might have arisen under the Act.
Anthony M. Kennedy: --Can you conceive of any procedural irregularity so gross as to invalidate the Commission's findings?
Drew S. Days, III: Justice Kennedy, one pauses when posed a question like yours, but I think that given the structure of the Act and given the history and purpose, there would be no violation that would rise to the level of judicial review or trigger judicial review. This is a matter--
Anthony M. Kennedy: So if--
Drew S. Days, III: --That would be dealt with by the Congress.
Anthony M. Kennedy: --If the Commission issued a report in 1994, which it's not authorized to do.
Drew S. Days, III: That's correct.
Anthony M. Kennedy: And the President acted... transmitted the list, that would be a... and the Congress refused to act to upset that determination, those bases could be closed without interference from the courts?
Drew S. Days, III: That's correct, Justice Kennedy. This is, after all, a piece of legislation that has a sunset provision. It exists for only 5 or 6 years, and after that point certainly Congress, in due course, could revisit this issue. And as I indicated earlier, there are points during the process where Congress can make its interests and its concerns felt, and I don't think that it's appropriate to presume that the Commission or the President or the Secretary of Defense would be completely unaffected by those expressions of concern.
John Paul Stevens: Mr. Day, at what point in the process would you say that Congress would have the best opportunity to express its concern about procedural shortcomings that are at issue in this case?
Drew S. Days, III: It could do so at the point where it can vote out, enact a Joint Resolution of Disapproval.
John Paul Stevens: That would be the point at which you'd expect them to react, if at all?
Drew S. Days, III: That's correct. And in this case--
David H. Souter: Of course, Mr.--
Drew S. Days, III: --Yes.
David H. Souter: --Senator Specter says they don't have time to do that. His argument, as I understand it, is that if that's what you're banking on, there won't be any procedural review at all, because he says Congress basically cannot act in the time that the statute would allow it to act.
Drew S. Days, III: Justice Souter, I don't think that's correct. As I indicated, Congress has the ability to review what's going on in this process at many different points, and in this case it was possible for the Congress to hold hearings, to assign particular issues to committees and subcommittees for resolution. And we're not talking about something that arrives on the doorstep of the Congress completely unannounced.
Antonin Scalia: General Days, you could say that about any arbitrary or capricious executive action. You could always say if Congress doesn't like it, Congress could have enacted a Joint Resolution of Disapproval, which is the same as a piece of legislation. It has to pass both houses, right?
Drew S. Days, III: That's correct.
Antonin Scalia: And be signed by the President.
Drew S. Days, III: Yes.
Antonin Scalia: So why is this any different from any... any other instance of executive arbitrariness? Congress can overturn it by a law if it doesn't like it. I don't find that a very persuasive... it doesn't make me feel better about the arbitrariness in this case.
Drew S. Days, III: Yes.
Antonin Scalia: If there was any.
Drew S. Days, III: I understand that, Justice Scalia. But this is a situation that I think is not commonplace. It's not like a normal statutory scheme. It's one where Congress, as I indicated, is intimately involved from the beginning to the end. The President has to consult with Members of Congress before even appointing members of the Commission. The Secretary of Defense, as part of the budgetary process, has to submit the force structure plan, the criteria for closing.
Antonin Scalia: Well, he doesn't really have to. He's supposed to, but you've told us you can't imagine any... you know, any defect that would be bad enough to allow review. All you say is he's supposed to do it. Let's assume he doesn't do it.
Drew S. Days, III: Justice Scalia, I think this is a risk that Congress felt it was prepared to take, given the problems that the President and Congress had encountered in the past in dealing with the whole base closure issue. This particular problem of cherry-picking was one that had brought the President and Congress to impasse in many instances. And also there was this concern about the extent to which political considerations entered into the process; that some people got better treatment or some bases got better treatment than others.
William H. Rehnquist: General Days, in this statute where Congress may, if it disapproves, pass a joint resolution, would that Joint Resolution of Disapproval have to be signed by the President?
Drew S. Days, III: Yes, it would, it would have to accord with the presentment clause of the Constitution.
Ruth Bader Ginsburg: Does that go for everything now? I was just wondering about the Federal rules procedure, that get laid on the table of Congress and then they become effective. That wouldn't--
Drew S. Days, III: Justice Ginsburg, it's our understanding, and it was the contemplation of Congress, that this would go through the presentment process.
Ruth Bader Ginsburg: --And that everything--
Drew S. Days, III: And the charter would dictate that.
Ruth Bader Ginsburg: --That everything... that you could no longer have anything, you think, even the Federal rules procedure?
Drew S. Days, III: Well, I think that's a different scheme, Justice Ginsburg, but in this particular case we're talking about an enactment by the Congress, by the entire Congress.
Ruth Bader Ginsburg: I didn't want to distract you.
Drew S. Days, III: Well, no, it's certainly an interesting question.
John Paul Stevens: General Days.
Drew S. Days, III: Yes.
John Paul Stevens: Would you refresh my recollection on something? What is the status of the bases right now? Was the closing all been held up on all of them?
Drew S. Days, III: No, it has not. In fact, my understanding is that the closing of the Philadelphia shipyard is moving along. Right now the USS Kennedy is being overhauled at the shipyard. But in, I guess, July of '91 when this lawsuit was filed, there were 7,000 employees at the naval yard. There are now about 5,000, and the cease mission date is August 30th or September 30th, 1995.
John Paul Stevens: The court of appeals didn't stay... didn't enter any kind of a--
Drew S. Days, III: No, there is no stay in this particular case. And this, of course, points up a difficult problem with judicial review in this case, because all the bases either stand or fall together. The 1991 closure list included the naval shipyard. The 1993 closure process has been completed. The Commission has been disbanded, and that particular list was dependent upon the Philadelphia shipyards being closed and one would presume that the '95 process would also take that into consideration. It's not merely a question of dropping or adding one particular base. It's a... it's the case that all of the pieces to this puzzle have to fit together. And one... when one moves a piece out--
David H. Souter: --Well, they do... for the activity, the actions of the executive and the legislative branches, they don't, for purposes of judicial review, do they?
Drew S. Days, III: --No. The point I'm making--
David H. Souter: Oh, you're not... maybe I misunderstood you. You're not arguing that unless the Philadelphia closing goes forward in this case, the closing of every other base on the list is held up too as a result of judicial review?
Drew S. Days, III: --No, I'm... that is a problem because if the Secretary--
David H. Souter: That's not your argument, is it?
Drew S. Days, III: --Well, my argument, Justice Souter, is that when the Secretary of Defense determines that certain bases need to be closed, the Commission makes the recommendation and the President approves. The list stands or falls in its entirety.
David H. Souter: Oh, no, I understand that.
Drew S. Days, III: Yes.
David H. Souter: But my only point was you're not arguing that if this Court sustains judicial review and if the... an order is entered which will terminate the closure proceedings for Philadelphia, that that's going to affect the closure of every other base that was on the same list with Philadelphia.
Drew S. Days, III: Not necessarily, but they are interrelated. But I think that point is--
David H. Souter: But there's no... they're not subject to any challenge. I mean nobody's brought a suit.
Drew S. Days, III: --No one's brought a suit, but I think what this lawsuit reflects is one of potentially 82 lawsuits. In other words, with 82 bases being either closed or realigned, given the theory of the respondents and the theory of the court of appeals, there could have been 81 other lawsuits. Indeed, in Cohen v. Rice there was an effort in the State of Maine to prevent the closure of a base in that State.
William H. Rehnquist: Well, isn't it true also, General Days, that the Commission, in debating the 1993 closings, assumed that the Philadelphia yard was going to be closed, and in... perhaps relied on that in making its decisions as to 1993 closings?
Drew S. Days, III: That's precisely correct, Chief Justice Rehnquist.
John Paul Stevens: But I must confess, I'm... I must say I'm confused. I was under the impression that you had a package situation.
Drew S. Days, III: Yes.
John Paul Stevens: And certainly the President has to take it as a lump and the Congress has to. But you're saying in the case of judicial review, if there is judicial review it can be done on a base-by-base basis.
Drew S. Days, III: That's correct. That's what this case is really all about. They're trying to prevent the closure--
John Paul Stevens: So that nobody accepted--
Drew S. Days, III: --Of one of those pieces of the puzzle in the entire puzzle, and the question would be the impact of that particular determination in favor of the respondents upon the entire list or, indeed, subsequent list.
Anthony M. Kennedy: --Well, I might have thought your argument would have been that if we were to permit judicial review, that one possibility is that the district court would have to throw out the entire list in order to be consistent with the statutory scheme.
Drew S. Days, III: Well, throw out the--
Anthony M. Kennedy: Or resort to a si prius doctrine and just save the Philadelphia base.
Drew S. Days, III: --Well, it might require a court to throw out the '91 list, the '93 list, and direct the '95 Commission that it would have to carry out its responsibilities without any dependence on the Philadelphia Naval Shipyard being included in that closure process.
Anthony M. Kennedy: Well, if we can retreat just a minute from that parade of horribles, let's again assume that we find that there is judicial review.
Drew S. Days, III: Yes.
Anthony M. Kennedy: That the APA review applies. What should be the rule if the Commission violates its statutory mandate to hold a public hearing, and we've made this assumption? Can an aggrieved person immediately go to seek judicial review and a judicial order to open the hearings immediately after the Commission makes its determination to close them?
Drew S. Days, III: I would think not, Justice Kennedy. This is a situation where there is no immediate impact on anyone. It's moving toward the ultimate decision. But that would not be any direct impact--
Anthony M. Kennedy: Well, suppose you want to observe... suppose you want to observe the public hearing?
Drew S. Days, III: --Well, perhaps there would be a right to go into court to claim that the agency was withholding a right pursuant to the APA or pursuant to the statute, that individuals would be entitled to, but it certainly wouldn't be final agency action under the APA.
Antonin Scalia: Can I ask--
Drew S. Days, III: So it would be wrongly withheld action under the APA by the agency.
Antonin Scalia: --General Days, I frankly don't see why your case is any stronger than a case in which the same scheme were set up but it did not say at the end that when the President approves it, he sends it, transmits it to the Hill, and the Hill has 45 days to overturn it. Suppose it didn't say that? Suppose it just said the President shall make the decision. He has to take it or leave it when it's submitted to him, and his decision shall not be effective for 45 days... that's all it says, shall not be effective for 45 days. In fact, that's the same result, right? Congress can... could only be able to overturn it by joint resolution.
Drew S. Days, III: That's correct.
Antonin Scalia: So what do you gain from the fact that this is a scheme in which he formally had to place it before Congress? I don't see how that makes your case for nonreviewability any stronger.
Drew S. Days, III: Well, we think this case is controlled by this Court's decision in Franklin v. Massachusetts, that what we have here, apart from the fact that the President wasn't named as a defendant, is basically an effort to get courts to review presidential action. This is a situation where the Secretary of Defense and the Commission agencies make nonbinding recommendations to the President and then the President has the discretion to decide what he's going to do under those circumstances. As the Third Circuit said, the President can make his decision for any reason at all. This is discretion that is not bound by the terms of the statute. Although the argument has been made by the respondents that this is somehow different from Franklin, we've never viewed Franklin as a decision about artful pleading, but rather about the respect for the integrity of the presidential process or presidential action. And so we think given this Court's decision in Franklin v. Massachusetts, this case falls very nicely into that particular framework, and therefore it is important that the President is involved. This is a situation where he has more discretion than I think this Court recognized in Franklin in making the decision. So if anything, this is a stronger case for deference by the judiciary to Presidential action.
Antonin Scalia: I agree it's important that the President is involved. I'm not sure it's at all important that Congress is involved. That is to say that what the President does is not simply issue a regulation, the bases shall close, period, effective 45 days from now.
Drew S. Days, III: Yes.
Antonin Scalia: I'm not sure there's any difference between that and this scheme where it says not just 45 days from now, but within those 45 days I'm leaving it on the floor of Congress.
Drew S. Days, III: Yes. Well, I think, Justice Scalia, the involvement of Congress really goes to the point that I was making earlier, that even if you disagree with our argument and find that there was final action under the APA and therefore reviewability, the Act itself does not, we submit, contemplate judicial review. And one of the reasons for that is the involvement of Congress, the need for expedition, the fact that in this legislation Congress recognized that the NEPA process was one that had been used for a variety of reasons to delay the process, and therefore NEPA was completely taken out of the statute.
Ruth Bader Ginsburg: But why doesn't that cut the other way, General Days, that they noticed that NEPA could slow things down, so they made an exception for it, but they didn't make an across-the-board exception?
Drew S. Days, III: Justice Ginsburg, I think that the NEPA exception doesn't go so much to the question of judicial review. In other words, I don't see it as an argument that what Congress intended to do was take NEPA out but allow other types of procedural challenges to be reviewed by the courts, but rather as a determination that NEPA imposes certain procedural requirements on agencies that, apart from judicial review, can be used to slow down, delay the process that Congress wanted to be handled in an expeditious fashion. And it was really those procedural concerns, not so much judicial review, that was on the mind of Congress, we would submit.
David H. Souter: Is it your position with respect to the significance of the express provision for congressional disapproval that it's sort of affirmative evidence that Congress would engage in a review, and hence affirmative evidence, one more bit of evidence for you that that's where the review was to take place and not somewhere else?
Drew S. Days, III: Yes, Justice Souter, I think that, in sum, this case is really about an effort on the part of the respondents to substitute judicial cherry-picking for legislative and executive cherry-picking, which was a major concern of both Congress and the President when they enacted the 1990 legislation. I'd like to reserve the balance of my time.
William H. Rehnquist: Very well, General Days. Senator Specter, we'll hear from you.
Arlen Specter: Mr. Chief Justice, and may it please the Court: Our contention that there is judicial review turns on alternative legal theories, first under common law principles and second under statutory review under the Administrative Procedure Act. It is not determinative under the decisions of this Court that there be individual rights involved. The Panama Refining case, the American Airlines v. the Civil Aeronautics Board, and going back to Flying Fish, has established the solid principle that where there is a violation of the doctrine of separation of powers where the congressional requirements are not met by the executive, then the action by the executive, the Base Closing Commission, is null and void. The principle of judicial review and the importance is not one that has to be emphasized in this Court--
John Paul Stevens: Senator Specter, let me just, if I may, interrupt you. When you say null and void, do you mean that if there is a concern about the particular... the Philadelphia base and procedural shortcomings as to that one base, the remedy that the Court would grant would be null and void of the entire package?
Arlen Specter: --No, Mr. Justice Stevens, it would not be. There is no showing that the elimination of the Philadelphia base would have any effect on any other bases at all.
John Paul Stevens: Well, then let me ask you, just to be sure I understand the position, you do agree, do you not, that if the President were... found there were procedural shortcomings as to Philadelphia and no other base, he would not have the authority to say I will close everything except the Philadelphia base?
Arlen Specter: Justice Stevens, he could have sent the list back and raised an issue, but it's a practical impossibility in 10 days to take a look at 72 bases. In the 1991 and 1993 closures and realignments, 310 bases have been involved and only 3 cases have been brought. But when you come to the question of remedy, I want to emphasize this point, that it may be that declaratory relief would be sufficient if the district court says that there has been a violation of the Act and that the failure to have a fair process--
John Paul Stevens: No, but the point I want to be sure I understand your position on, Senator, is that if I understand you correctly, the Congress could not say because of the procedural violations involving Philadelphia, we will approve the entire package except Philadelphia. They might say we're very unhappy about that, but we think the interest in all the closures outweighs it and we're going to approve the package.
Arlen Specter: --The Congress could not say the Philadelphia base is excluded. And the Congress faced this issue directly, Justice Stevens, as set forth at page 44 of our brief where the Congress passed a Sense of the Congress Resolution saying that their rejection of the resolution of disapproval did not say anything about compliance with the Act. It is another way of saying what Senator Dixon, the chairman of the subcommittee, said at the time of the hearing on the resolution of disapproval, that he could not take up the question of whether the congressional mandates were followed, and under the decisions of this Court that is a particularly and peculiarly judicial function.
John Paul Stevens: Senator, if Congress-- --But, let me just finish... let me just finish the one thing, and that'll be... I'll leave you alone. But you do agree, then, that neither Congress nor the President could take separate action on a base-by-base basis, but the courts could?
Arlen Specter: Correct, Justice Stevens.
John Paul Stevens: Okay.
Arlen Specter: It is a particularly, peculiarly judicial function, and when you say that there may be an interference with all the other bases, that's a question for the court on a remedy.
Antonin Scalia: Senator, I don't agree with that. Congress can do anything by a joint resolution. If Congress passes a joint resolution, which to be effective has to be signed by the President, it has passed a new statute which would supersede this whole statute anyway. Congress... I agree with you that the President couldn't single out the Philadelphia base, but Congress could by joint resolution.
Arlen Specter: Justice Scalia, Congress, as the lawmaker, may do that.
Antonin Scalia: Anything at all.
Arlen Specter: But within the confines of the Base Closure Act, that was not contemplated. And the--
Antonin Scalia: It wasn't contemplated, but the Base Closure Act calls for a joint resolution and Congress can do anything it wants by a joint resolution so long as it's constitutional?
Arlen Specter: --Well, not the joint resolution, Justice Scalia, which is called for by the Act. The joint resolution which is called for by the Act, the Joint Resolution of Disapproval, calls for rejecting the whole thing or leaving the whole thing in place. But where you have a question as to whether the congressional standards were followed, Senator Dixon at the hearing said... it's in the record... we can't take this up; that's a matter for the courts. And then there was a congressional determination that the rejection of the resolution of disapproval did not bear on whether the provisions of the Act were complied with because the Congress could not do that. It--
William H. Rehnquist: Well, I think the procedures that Congress would go through for a joint resolution under this Act might be quite different and a good deal speedier than introducing a brand new piece of legislation and having it go through committee.
Arlen Specter: --Chief Justice Rehnquist, that's precisely the point, that the resolution of disapproval contemplated under the Act said all or nothing. There could be another resolution introduced, or a bill introduced to deal with the Philadelphia Navy Yard, but that's a total impracticality because Congress passed this Act saying that this is the sole way that you deal with base closures. But when Congress passed the Act... and this is the fundamental of the case... there were specific provisions set out. There had to be a structure force plan. There had to be criteria. There had to be full disclosure to the General Accounting Office, the arm of Congress.
Speaker: Senator--
Arlen Specter: And this was added in the 1990 Act because there was so much concern that the Defense Department would act in an unfair way.
Anthony M. Kennedy: --If the President concluded that some of these conditions that you have just described had not been followed by the Commission, did he have the duty to reject the list?
Arlen Specter: No, Justice Kennedy, he did not, because he's looking at the total picture. And we offered to prove at trial--
Anthony M. Kennedy: So if you were his legal counsel and these defects had been disclosed to him during the short period of time in which he could either reject or approve the list, you would have said that he had the legal right to submit the list to the Congress, to go ahead with it?
Arlen Specter: --I would have advised him to send the whole list back, but where there's a defect as to one base that's up to the courts, because there is a showing that this is not a garden-variety matter of procedural error, as asserted by the Government.
Anthony M. Kennedy: But he... but would you further advise him that he did, in his discretion, have the authority to transmit the list to the Congress?
Arlen Specter: I would advise him that he had very little discretion. He could take it all or he could leave it all, but on this record he ought to submit the whole list to the Congress because he's dealing with 72 bases.
Anthony M. Kennedy: Not what he ought to do... that he ought to submit the whole list to the Congress?
Arlen Specter: That that's what he should do. That would be my advice to him, because I would say to him, Mr. President, you cannot have a determination as to the failure of the Navy to supply the information to the GAO. You can't call in two admirals who sent reports that the yard should be kept open which were fraudulently concealed from the GAO and the Congress, you can't call in the admiral and have him testify that he was instructed by the Navy, which is an obstruction of justice not to testify before--
Anthony M. Kennedy: Well, then you're saying he acted within his discretion.
Arlen Specter: --I'm saying that he acted within his authority. I would disagree, respectfully, about discretion, because I think he had virtually none, but I am saying that he is not equipped to make that kind of a determination, which is judicial.
Sandra Day O'Connor: But, Senator Specter, he did... did he have an obligation under the statute to review whether procedures were properly employed by the Commission?
Arlen Specter: Justice O'Connor, he did not have any such obligation, which is the same answer that General Days gave you.
Sandra Day O'Connor: So you agree with that. And the President did have two options. He could send it on with his approval to the Congress, or he could reject it and send it back to the Commission.
Arlen Specter: Correct. He could send it back to the Commission once or he could reject it totally, or he could just let it sit and not act on it, and there would be no base closings. But when he has a 72 and a total of 310 in 2 years, he cannot engage in the fact-finding to see if these allegations are true. And for the purpose of a motion to dismiss, they are all accepted as true, and we have already had the hearing before the district court.
Ruth Bader Ginsburg: Senator Specter, may I... you've been very clear, I think, on two points. You said there is to be no cherry-picking by the President under this measure, and no cherry-picking by Congress, but there is by the courts. And my question to you is this; suppose Congress, concerned about this picking-off problem, wanted to say and the courts too cannot zero in on the Philadelphia base, on the Rice base, on any base, could that... could Congress have done that, would it have been constitutional, or is your argument fundamentally that the courts must always be able to engage in the cherry-picking business in this kind of a legislative setup?
Arlen Specter: Justice Ginsburg, not cherry-picking, but the courts must always be able to review the congressional delegation of authority to see if it is followed by the executive. That's the fundamental rule of Panama Refining.
Ruth Bader Ginsburg: But let me withdraw the word cherry-picking, because I don't want to make anything in the pejorative sense. You have been very clear that it's an all or nothing deal for the legislature, as it is for the executive, but you say it's never an all or nothing deal for the courts, and it is never because this legislation didn't preclude that, or even if Congress had said, and, courts, you too have no business looking at bases one by one? Suppose Congress had said that, would that have been unconstitutional in your view?
Arlen Specter: It would not be unconstitutional to say the courts could not make individual selections, but that is not the case. We are not engaged in cherry-picking, as General Days has said, by the court. The court is asked to send the matter back to the Commission. The court does not have the competency to decide whether the base should be kept open or not. The court has the unique competency to decide whether the mandates of the statute have been followed on full disclosure to the GAO and on a hearing. That is what courts do. But it would go back to the Base Closing Commission, and they may win on the merits. But that is a very critical distinction here, Justice Ginsburg, and may it please the entire Court, we are not asking that the yard be kept open. We are asking that we have a fair day in court. We are asking, in light of the fundamental purpose of the courts under Marbury v. Madison on judicial review, that the clear precedents of this court be followed under American Airlines--
David H. Souter: But, Senator, may I interrupt you? It seems to me that what you're saying is the most the court can do is to declare that with respect to this one base there was a procedural irregularity, maybe a very serious one, then send it back somehow into the executive process and say you figure out what to do. And yet the essence of the executive process was that it would proceed on a given timetable on an all, take it or leave it, basis. And I don't see how that relief is consistent with the scheme of the statute.
Arlen Specter: --Justice Souter, it is consistent because the Base Closing Commission will be sitting again in 1995.
David H. Souter: With an entirely different package in front of it.
Arlen Specter: Not really--
David H. Souter: In effect, you're saying the court can say add a new item to this year's package, change the next--
Arlen Specter: --No, I'm saying the court has the authority under decisions and under the Administrative Procedure Act to say to the Commission where you flout the direction of Congress and make the law a nullity, because Congress said that you have to turn over the information to the congressional arm, the Comptroller General, the General Accounting office, and where you have to have hearings and you don't do that, do it right. And if you do--
David H. Souter: --Well, do it right, but the time for doing it right is passed. And your remedy, in effect, as I understand it, involves a court ordering the Commission to consider a different mix from the mix that the Commission otherwise would derive?
Arlen Specter: --Justice Souter, there is ample time for the Commission to act in 1995, because it still is in existence. The Navy yard is not scheduled to be closed until 1996.
David H. Souter: Well, it may have time, but I don't think that goes to my question. But let me ask you a different question, which I thought you might get close to in answering Justice Ginsburg's. Assuming that the court finds that with respect to the Philadelphia shipyard there was a significant procedural irregularity. We've got judicial review, that's the conclusion... whatever relief the court gives, whether it were... and you're not asking for it... you tell me if it were to order the closure to... process to be halted, or whether it's some kind of a remand procedure which you've described, why doesn't the scheme of the Act require the court to take the package all or nothing, so that if there's something wrong with Philadelphia, there's something wrong infecting the entire political mix which it was the object of the statute to require both Congress and the President to act on as a package?
Arlen Specter: Because--
David H. Souter: So if Philadelphia's tainted, why don't we say that the relief is going to affect all of the others?
Arlen Specter: --Because the court ought to act on the most restricted basis possible, as the--
David H. Souter: Well, the Act... the court also ought to act consistent with the intent of Congress, and the intent of Congress to regard a package as a package is pretty clear, isn't it?
Arlen Specter: --Not with respect to judicial action. It is clear with respect to presidential action or congressional action, but not at all as to judicial action. Justice Souter, when you postulate these concerns and these problems on remedy, I grant you that there are some concerns which we have to address, and I think we have... can do it consistent with plaintiff's position. But the other side of it is that you're saying to the Navy if you let this go through, you can conceal reports. Congress says full disclosure goes to the General Accounting Office.
David H. Souter: No. The other side of it is basically that the... that this is essentially a political pact between two branches of the Government and the Congress can decide what to do about it if there is a procedural irregularity. That's the alternative.
Arlen Specter: The two branches of Congress, Justice Souter, may not make a political pact in derogation of the Constitution. This Court in Franklin reaffirmed Panama Refining, which said when Congress tried to give general legislative authority to the President without appropriate standards it was unconstitutional.
Anthony M. Kennedy: But, Senator--
Arlen Specter: The Congress and the President may not make a pact which is unconstitutional. That's why we have Marbury v. Madison and this Court.
Anthony M. Kennedy: --But, Senator, that's what confuses me about the answer to the question I asked you earlier. The President has an obligation to obey the law and the Constitution, and yet you postulated that the President, with full knowledge of a procedural irregularity, could submit this list to the Congress. I should have thought if your case is one in which you are vindicating the rule of law, the President had absolute obligation under the hypothesis we put to refuse to transmit a list that was improperly composed.
Arlen Specter: Justice Kennedy--
Anthony M. Kennedy: I just don't see how you can answer the way you did consistently with your whole theory of the case.
Arlen Specter: --Well, I think it is consistent for this reason. The President has a list with 72 bases and he has an allegation that there is a failure to comply with the statute on one list, and he knows there's a judicial system and he knows that in the conference report the Congress said that there shall not be judicial review under a number of items, selection criteria, force review. But the Congress did not say no judicial review on the issue of a hearing and full disclosure, and the President knows that in Abbot's Laboratories and in Bowen v. Michigan Doctors, that this Court--
John Paul Stevens: No, but, Senator, those were cases that go to the question of whether the statute authorized judicial review, and as I understand your position, even if the statute said, notwithstanding procedural violations, the courts may not review anything, you're saying that statute would be unconstitutional?
Arlen Specter: --I'm saying it would be unconstitutional if it precludes judicial review, if it violates separation of powers, and that is Panama Refining.
John Paul Stevens: See, Abbot Laboratories and those cases just are questions of whether the statute authorized judicial review.
Arlen Specter: Well, I'm on to the second branch. I'm trying to cover my argument as to the alternative theory.
Ruth Bader Ginsburg: Senator Specter, in all the cases that you've given as examples, those were examples where the executive should not have acted. That's the theory of it. But you said something that... in response to Justice Kennedy's question that really concerned me, because it was always my understanding that the Constitution is the highest law for every official in the land, and Congress has an obligation not to approve anything that it believes is inconsistent with the Constitution. The President has an obligation not to go forward with any measure that the President believes is unconstitutional. It isn't a question that while these officers... the Constitution is in the trust of the Court alone, these officers don't have to worry about that because the Constitution is the Court's concern. I'm sure that you really didn't mean to say that, but that's what came across to me in your answer to Justice Kennedy's question.
Arlen Specter: Justice Ginsburg, the question of review of what the Commission did is not one the President can undertake. He cannot undertake it because he is not qualified to do it, and he only has 10 days and he has 72 bases. The question of review as to whether there is compliance with the Constitution is one which this Court has acted on. And while it is true that the Congress has the responsibility to uphold the Constitution, and so does the President, we are not equipped, as Senator Dixon said, on the resolution of disapproval to take up these questions. The President was asked to review this matter and he said I can't get involved in that. And we made an offer to prove that. And under--
Antonin Scalia: The President doesn't have to use the same criteria that the Commission used. He could disapprove it for any reason, couldn't he? I mean it's a brand new judgment when it gets to him.
Arlen Specter: --Justice Scalia.
Antonin Scalia: He could just say, I like Philadelphia and I'm not going to close the Philadelphia Navy Yard, no matter what. He could say that if he wants.
Arlen Specter: Not realistically, Justice Scalia, because the consequence of that would be to reject the entire list.
Antonin Scalia: Well--
Arlen Specter: You see, the Court--
Antonin Scalia: --But he could do that if he wants, can't he?
Arlen Specter: --Yes. Well, yes.
Antonin Scalia: Not realistically, but legally, I mean.
Arlen Specter: But that's a price he's not prepared to pay. There was an arrangement here for the Congress and the President to distance themselves from this political hot potato, and they arrived at an arrangement where to have a fair process, a word which was not mentioned by General Days, not mentioned in his brief, and it's the introductory purpose of the Act, a fair process. And how do you get a fair process with a political hot potato like this one where the President doesn't want to have to do something politically unpopular and the Congress doesn't want to have to do--
Antonin Scalia: Well, we don't read laws that way. I mean, the fact is that the President had an independent judgment, that whatever the Commission came up with did not govern, and even the criteria it used did not govern. It was entirely the President's call to approve this, and if he didn't want to, to say I don't like it. I don't care how you did it. Maybe you did it right, maybe you did it wrong, I don't like it.
Arlen Specter: --Justice Scalia, he did not know that when he issued approval. The Commission handed him a list on June 30th of 1991 and he made an approval on July 10th--
John Paul Stevens: Well, Senator, as I understand your--
Arlen Specter: --10 days later.
John Paul Stevens: --Response to Justice Ginsburg, even if he knew the statute had not been followed and therefore, under your theory, the Constitution had been violated, he would properly have said I've got to approve this package. I think that's what you've said to us.
Arlen Specter: I believe that the practical reality... and I gave you a candid answer to that question... is that the President cannot reject 72 bases because someone is saying to him that the mandate hasn't been followed as to the Philadelphia Navy Yard. Because he's not equipped to do that. That's a judicial function. The President is not equipped to do that.
John Paul Stevens: Well, but you're saying even he were equipped and he had unimpeachable evidence of what you consider to be a plain constitutional violation, you're saying, well, he doesn't have to follow the Constitution, that's for the courts--
Arlen Specter: No, he has to follow the Constitution. But when Justice Kennedy asked me the question about what the President should do, there is a legal duty and there is a realistic process which he can follow, and he would say the same thing that Senator Dixon said, and that is to leave it to the courts. We have an administrative process in our country.
Anthony M. Kennedy: --Well, he can't knowingly prosecute somebody that he believes is absolutely innocent, can he? Those are for the courts.
Arlen Specter: Well--
Anthony M. Kennedy: Surely that can't be your position, Senator.
Arlen Specter: --Well, that is not my position, that a prosecutor or a President should prosecute someone who is innocent, but that's about what we have here when you have a yard closed and you have a congressional mandate ignored and you have fraudulent concealment of evidence, and you have obstruction of justice. It's a lot like what this Court said in Franklin where there's a robbery of the representation rights of the people and you have a process which is not followed and you have a lot of theoretical considerations as to what the President can or can't do, but realistically he cannot act on allegations, the court can't act on allegations, the court can only act on proof. But if you don't give us a day in court, if you don't permit us to come in and show these matters, the President wouldn't give us an opportunity to do that, the Congress wouldn't hear it... I asked Senator Dixon specifically, but he reserved it. He said our rejection of the resolution of disapproval does not foreclose you from the courts. We're not passing on the procedural requirements.
William H. Rehnquist: Senator Specter, I think your reliance on Panama Refining may be rather strained. In that case the law... on page 4, that the Court says if the citizens is to be punished for the crime of violating a legislative order or an executive order, the due process requires it shall appear that the order is within the authority of the officer. That's where the... you're going after the citizen to punish him. Here you don't have any question of that sort of an individual right, so I think the claim that Panama Refining supports judicial review here is very difficult to make out.
Arlen Specter: Chief Justice Rehnquist, I respectfully disagree with you categorically. The decision in Panama Refining was on the basis of the entire statutory scheme, not just on the basis of how it affected an individual. And this Court said, at page 432 of 293 U.S. Reports that where there is delegation which exceeds congressional authority, Congress cannot give lawmaking power to the President. There have to be standards established, and if--
William H. Rehnquist: But that's on the very same page that the language I just read to you is. It's in the context of the Government proceeding against an individual and the individual says the order you're charging me with violating wasn't authorized.
Arlen Specter: --Mr. Chief Justice, the statute... the case invalidates the delegation on much broader grounds. It invalidates the delegation on all of the presidential authority to impact on the transportation of petroleum products, far beyond that individual case.
Antonin Scalia: At the instance of someone who was sought to be prosecuted for transporting the hot oil, wasn't--
Arlen Specter: Justice Scalia, that is one aspect, but it was much broader. The actions was... the statute was invalidated on much broader grounds.
Antonin Scalia: --Sure, but you still got to find somebody who has had a right violated. I mean, there are a lot of... a lot of violations of separation of powers, a lot of things that can be done wrong which we judges have no power to reach unless somebody has been harmed in right.
Arlen Specter: Justice Scalia--
Antonin Scalia: And I don't see where that is here.
Arlen Specter: --The right violated and the standing to bring this suit has not been challenged by the Government. And under the standards which you articulated in your opinion in Franklin, we have met that standard of showing that a right has been violated. And I would urge the Court--
John Paul Stevens: Well, but, Senator, it is true that it's a statutory right that they would say is violated. I don't think they agree with your submission that the violation of statutory procedures always also violates the Constitution, which I think is part of your submission.
Arlen Specter: --It rises to the level of a violation of separation of powers when the executive branch disregards the standards. In Panama there were no standards set, and in the American Airlines case where Judge Burger, later Chief Justice, picked up the issue about invalid authority, invalid administrative authority, handing an order to a President which was invalid; the President had a nullity before him. So that the cases under the common law decisions... and Flying Fish is another one... going back to 1804, a consistent line to say that where the authority is not exercised by the executive, and in this case the Base Closing Commission in conformity with the standards, which it certainly was not, that there is a violation of separation of powers. I've not had an opportunity to deal to any extent with the Administrative Procedures Act, which was the gravamen of the review here under Franklin. And I would urge this Court not to expand the doctrine of Franklin. This case is fundamentally different from Franklin because in Franklin the President had the authority to revise the Census data, had supervisory authority to modify it and amended it, which the President cannot do here. And that was a 5 to 4 decision. And to permit administrative agencies in our society to operate without judicial review on the distinction of what is final administrative agency action, where here the Base Commission decision had a direct impact on the parties involved and was final. And I would offer you a syllogism, that where the veto power of the Congress does not defeat finality of administrative action, and the Government concedes that because the Congress is excluded from the Administrative Procedure Act, but the congressional veto does not take us out from under the APA, not should the virtually identical--
William H. Rehnquist: Thank you, Senator Specter.
Arlen Specter: --Congressional authority.
William H. Rehnquist: Your time has expired. General Days, you have 4 minutes remaining.
Drew S. Days, III: Mr. Chief Justice and the Court, Senator Specter refers to a fair process, but I think it's important to emphasize that what Congress had in mind was a fair process that would result in a timely closure of bases, so it's the relationship between fairness and timeliness. And I think the fairness in the Act comes from several sources. One, it's fair to Congress because it involves Congress in an intimate way. The President is on the line, which means that he's not a person who can hide behind the decisions that are made. There's an independent commission, as I said earlier. But there's also a concern for communities. The Act itself has a provision that deals with the problems of transition once decisions are made with respect to closing. Getting back to the question of whether the statute authorizes judicial review, we think the fast-track procedure indicates an absence of judicial review expectations. The 45 days given to Congress, the 2 hour debate, there is an opportunity for any Member of the Congress to bring to a vote a Joint Resolution of Disapproval. But we think that what the statute reflects is the decision to give to the President and the Congress the ability to weigh the seriousness of alleged procedural violations against the need to proceed with the entire package. Mr. Specter refers to the sense of Congress resolution. I won't get into that, but we refer to it on page 17 of our reply brief. And I think that resolution ultimately reflects the approval by the Congress of the recommendations made by the Base Closing Commission in this case. On the question of unconstitutionality, as I understand unconstitutionality under these circumstances, it would have to mean that Congress could not authorize the President to do what the President did in this case, which was to approve the package, even though that was consistent with the statute. For the foregoing reasons, we ask this Court to reverse the decision of the court of appeals, thereby permitting the base closure process that the President and the Congress agreed upon in the 1990 Act to go forward. We think to do otherwise would disrupt the careful balance struck between the political branches. It would intrude on Congress' statutory oversight role and it would make expedition and finality impossible to achieve in an area of national security and military policy uniquely within the competence of Congress and the President. Thank you.
William H. Rehnquist: Thank you, General Days. The case is submitted.


Warren E. Burger: We'll hear arguments next in 71-839, Erlenbaugh against the United States. Mr. Grubb, you may proceed whenever you are ready now.
Charles W. Grubb: Mr. Chief Justice, may it please the Court. I am here under rather ominous position today, faithfully speaking in that when the Travel Act, Section 1952 of Title 18 of United States Code was passed in 1961, I was a special agent of the Federal Bureau of Investigation assigned to Lake County, Indiana, and I had prepared that time the first summary report to be used for the prosecution of people like I am representing today. This Act is the Travel Act, Section 1952 of Title 18 of the United States Code. Now the question before this Court today is whether the Seventh Circuit erred in not following the case of U.S. versus Arnold, which was cited in the briefs, treated in the briefs. In that case they had treated also Section 1953, which was a companion Section of Section 1952, which is the Travel Act. The Court of Appeals, Seventh Court of Appeals, stated and rejected Arnold on the ground that there was lack of precedent and also that there was a lack of reasoning in the case. Well, this was actually a case of first impression for all practical purposes and, thus, there was a lack of precedent for it. But I believe that the study of the legislating history, study of the Acts themselves, and the study of the cases cited by the government and the cases which I shall cite, support Arnold and give reasoning, Arnold was first. There is no doubt about it, it was the first opinion, but nevertheless I think that we have a proper reason that can be found in these cases and also in the statutes. Now petitioners were convicted under Section 1952, the Travel Act. They were horse race bookies and they use what is known as the Illinois Sports News, I don’t believe if we got this in the record pointed out, but this was the Illinois Sports News. It’s a newspaper published in Chicago, Illinois and is used by bookies, because it contains horse race betting information and predictions. This paper was sent to the petitioners who all reside in Lake County, Indiana and so that -- some of them were my informers when I was in the FBI. These persons used this, this paper was sent from Chicago, Illinois to Hammond, Indiana and it was consigned to what was known as the Hammond News Agency. These petitioners according to the record went to the Railroad Station and picked up the copies of it dropping, leaving their money there and took the copies and they did use it in their horse racing operations. The Illinois Sport News has been held to be a newspaper and exempt under Section 1953 of Title 18, which is the companion section, and it was so held by the Seventh Circuit which treated this case previously and that was in Kelly versus Illinois Bell Telephone Company, that's a 1963 case. I am giving the citation because there were two Kelly cases that I have in the briefs, 325 F. 2nd. 148 and it was held in a general way by the Seventh Circuit, to be a newspaper and exempt from the operation of Section 1953. Now, Congress had a right -- had a reason to exempt newspapers from Section 1953 and that's to protect the right for free press. But in passing 1953, it permitted the interstate transportation of a paper carrying with it information, carrying with it gambling information, betting information. This information could be used for only one purpose, none but or so a nothing else. It's worth for anything for anything else except gambling, it’s a betting paper, but Congress permitted this to be passed and they knew it couldn’t be passed and in doing so they knew it, it would be transported for one purpose and that is to use for gambling purpose. This is not going to be used to paper walls, it's not going to be use line bureau drawers. It's strictly a gambling paper and government made that quite plain in the various trials that we had. Now, the cases cited by the government in opposition can be distinguished from the cases before the Court, and also from Arnold, in fact, I think they help to explain Arnold. U.S. versus Miller which is cited in the brief, that's a 1967 case out of Seventh Circuit, once all this began. The defendants there subscribed to Western Union Service, the defendants had a ticker, they paid for it, they have it in their gambling joint wherever it was in Lake County, Indiana and they used the information from that. They caused, they did not cause the interstate commerce or cause the use of an interstate facility. They used it, they actually used it, and the case before the Court that these petitioners did not subscribe to any paper, they did not order any paper. They did not cause any direct use of interstate commerce. The next case is U.S. versus Azar, which is a 1964 case, it’s a District Court case in Michigan. There we had another paper much like the Illinois Sport News, it’s called the Green Sheet and the Green Sheet was published in Ohio. The two defendants in Azar traveled from Detroit, Michigan to Ohio where the paper is published, and there they gave information, which was used in the paper, actually used in the paper, and then the paper was sent across states lines back into Michigan and there the defendants as consignees picked up the paper, they -- the paper was sent to them. They used interstate commerce, they caused its use by being consignees and they also traveled across the state line to add, to give information for publication. It was direct travel in interstate commerce, we did not have it in the case at bar. The next case was U.S. versus Ross, a 1967 case and it was in the Sixth Circuit. The defendant was a subscriber to what is known as the Angel-Kaplan Sports Publications. Now this is similar to the Illinois Sport News I assume. Now this was shipped in interstate commerce to the defendant in Tennessee. The defendant admitted in this case that he was a subscriber, he was a subscriber to this paper. It was sent to him directly and he in effect caused the use of interstate commerce which was not true of the defendants -- petitioners in our case. And the last case with the government cited was US versus Mendonez (ph) a 1968 case out of the Circuit Court of -- out of Fifth Circuit Court of the Appeals. The defendants in Florida used the telephone to New York to get the total liabilities of the 12 Federal Reserve Banks and the 12 – the total was to be used that as the winning number in their lottery game here again. They used a directly interstate commerce, an interstate facility which is not true of our defendants -- of our petitioners. Now the Seventh Circuit, back to the Seventh Circuit in United States v. McCormick, a 1971 case 442 F2nd 316. The Court spoke differently on the use of interstate facility then in the cases before this Court, spoke entirely differently and I want to bring these cases these two cases to the Court's attention. The Court there -- the defendant McCormick, the man in Indianapolis, he advertised in the daily newspaper – in a weekly newspaper for salesmen to be used in his gambling scheme, in his lottery scheme and these salesman, this paper went across the states lines or sent through mails not only through mails but it was sent Indiana interstate commerce. And the government urge that this was a sufficient use of interstate -- of an interstate facility. The Seventh Circuit reverse this and said and I would like to read this, just the part of this decision. The U.S. versus McCormick and they start out.
Warren E. Burger: I think we will let you do that right after lunch.
Charles W. Grubb: Oh! Thank you, thank you. [Luncheon Break]
Warren E. Burger: Mr. Grubb you may continue.
Charles W. Grubb: Thank you, Your Honor. I was about to read from U.S. versus McCormick, that is a case of in all the Seventh Circuit Court and I am reading here from McCormick. In Rewis versus US 401 U.S and I will give the correct citation, they did not have it here, it is 28 LED 2nd 493, the Supreme Court reverse the conviction of a gambler whose lottery operation was frequented by our state letters. Construing this same Section, the Court emphasized the intent of Congress to strike at the truly interstate operations of organized crime. The Court refused to give broad ranging application to the statute, particularly since Congress gave no indication that it wished to alter the sensitive Federal state relationships, over extend limited Federal police resources or produce situations in which the geographic origins of customers a matters of happen stats would transform relatively minor state offenses into Federal felonies. Similarly and I still reading from McCormick, similarly in U.S. versus Altobella, 442 F 2nd 310 also in the Seventh Circuit. This Court struck down the conviction of two extortioners under the section 1952 where Jurisdiction was claimed on the basis that the victims' check was cleared by mail between Chicago and Philadelphia stated, “When both use of the interstate facility and the subsequent act is as minimal and incidental as in this case, we do not believe a Federal crime has been committed.” The Court then reversed and added in McCormick, “defendant neither used nor caused to be used and the interstate facility as an instrumental part of his illegal operations. We must therefore conclude that no Federal prime was committed and that the state of Indiana is the only appropriate authority to punish the defendant for maintaining this local lottery.
Potter Stewart: Mr. Grubb?
Charles W. Grubb: Yes sir.
Potter Stewart: Do I understand that that's the opinion you are just been reading from is in a case not referred to in either one of the briefs?
Charles W. Grubb: No --
Potter Stewart: Okay now the citation --
Charles W. Grubb: Yes. The McCormick is – the Rewis, I mean, Altobella is in 442 F2nd 310 and McCormick is a 1971 case it is also in 442 F2nd 316.
Potter Stewart: Thank you.
Charles W. Grubb: Now in McCormick the Seventh Circuit --
Warren E. Burger: Well the boundary of the case of the gambling house near the state line is one out of this Court last term where the term before, isn't it?
Charles W. Grubb: Rewis.
Warren E. Burger: Yes.
Charles W. Grubb: Yes Rewis, I am going to go --
Warren E. Burger: That is in 401 US, the reference that you told --
Charles W. Grubb: Yes it is in 401 that is right, I did not have the U.S. Citation I have the Supreme Court citation, the Supreme Court Reporter and LED. Now in McCormick the Seventh Circuit that held transportation of in newspaper information is not a sufficient use of interstate facility to sustain a conviction, Also in Altobella, cited in McCormick, the Court held at the clearance of a check through the mail in interstate commerce is insufficient, is an insufficient use of an interstate facility although the Courts have held for years that under section 2314 which is the interstate Transportation of Stolen Property Act, under section 2314 of title 18 that a clearance of a check does give jurisdiction, but Altobella said no. It is difficult for me to reconcile these case with the case at bar and also with Arnold, the reasoning that the Court did give and these cases were cited before the Seventh Circuit when I argued it there. Now, although the court in Arnold did not exhaustively explain its opinion. It seems to me that the cases which is cited by the government, in the legislative history here and the cases cited by the petitioner of all give some reasoning to Arnold and I think that Arnold in all its simplicity should be followed, but back to Rewis. This Court made it plain that the Travel Act is to be applied to truly interstate operations of organized crime and the Seventh Circuit so read that in the Rewis decision when it handed down the McCormick decision. Now the court in Rewis, I'll only read one short excerpt in Rewis.
Byron R. White: What's that (Inaudible)
Charles W. Grubb: Yes Rewis it is a -- I have the Supreme Court Reporter citation here. It is a 401, it is -- this is what was stated in Rewis, “legislative history of the act was limited but does review that 1952 was aimed primarily and organized crime and more specifically at persons who reside in one state while operating or managing illegal activities located in another. In addition, we are struck by what Congress did not say, and Court further said in Rewis that matters of happen stance should not transform relatively minor state offenses into Federal felonies. In conclusion I like to state that here there was no organized crime ever met, no evidence of any organized crime. These petitioners were all independent operators or they were employees of independent operators. They never ordered nor subscribed to the Illinois Sport News. They merely, they did not use the Chicago South Shore and South Bend railroad commonly known as South Shore railroad the did not used that railroad. They picked up the papers there but they were consigned to the Hammond News Agency, just to same as many of us do in the morning to get our morning paper when the drug stores close and we got there and we want to get our paper for we got on the computer, train we pick out a newspaper out of bundle and leave our money for it and go on our way.
Warren E. Burger: I suppose it is reasonably assumed isn't it Mr. Grubb that Congress was well aware that there were highly specialized newspapers as you kept your eyes this bulletin that catered particularly to people who were betting and to organized gambling, isn't that, accurate? Well, now then what if you to say about the fact that the Section 1953 specially excludes newspapers but are similar publications presumably reach this publication, but that section 1952 does not have any such exception?
Charles W. Grubb: That is right.
Warren E. Burger: What do you have to say about it?
Charles W. Grubb: That is right and I think that these -- Section 1953, be the latest in the statute should control, I believe does control that the two seconds must be construed impaired material and I cited the what I think is a leading case on that and I believe that altered them Section 1952 to the extent it was not to be -- that it was a exempt for use. Thank you.
Warren E. Burger: Mr. Tuttle.
Allan A. Tuttle: Mr. Chief Justice and may it please the court. The 11 petitioners here were convicted on five separate indictments after five separate Jury trials of using and causing the use of and interstate facility, in this case the Chicago South Shore and South Bend Railroad to promote and facilitate the operation of an illegal gambling operation in Hammond, Indiana. I had thought that the question which this Court had addressed itself to when it granted certiorari was the question of whether since Section 1953 contains a specific exclusion for newspapers, are we to assume that Congress intended to exclude from the scope of the Act an individual who had scratch sheets sent to him through the facilities of interstate commerce and thereafter use the scratch sheets to promote his unlawful activity. As Mr. Grubb has argued the case he seems to me to I have argued a difference case and one on which this Court did not grant certiorari. One on which jury resolved against these defendants and one which the Court Appeals resolved against these defendants and one which no petition for certiorari was filed. Mr. Grub contains -- maintains excuse me that these petitioners did not cause the use of an interstate facility. The Jury was instructed on this question and the Jury returned a verdict finding that these petitioners had in fact caused the use of this railroad. The Court of Appeals made the same finding. Indeed it seems to me that Mr. Grubb has conceded the main question in this case, when he says the case is like Ross and Azar are to be distinguished. Ross was distinguished by Mr. Grubb just now on the ground that Ross had subscribed to a paper in Chicago and thereby had in fact caused the interstate shipment, but if the question is whether the shipment of these papers through the channels of commerce is a subject of the Travel Act, then in conceding that Ross was properly decided, in my view that concedes the main question in this case. I might say the same as true of Azar. In Azar for instance, again, it was an interstate shipment of scratch sheets of the kind that we have in this case, and in Azar, in fact one of the two defendants didn't travel in interstate commerce, one did, the other remained in Detroit and picked up the packages when they reached their destination consigned to a Mr. Williams in Detroit. Now I will address myself to what I consider to be the question which this Court -- upon which this Court granted certiorari which is the question of the scope of the Travel Act and whether the transportation or causing the transportation of the sheets through the facilities of Interstate Commerce could violate the Travel Act and in the course of stating the facts of the case, I may shed some line on the question which Mr. Grubb has raised, but which I can see or which I contend is not before this Court. The petitioners were owners and operators five separate horse race betting parlors in Hammond, Indiana, each of which was and was conceded to be operated in violation of the laws of Indiana. Now in connection with the operation of these horse race betting parlors, petitioners used a publication known as the Illinois Sports News. Mr. Grubb has showed the Court a copy of the Illinois Sports News. The sports news is known as the scratch sheet, a scratch as the Court may know, is a horse that has been withdrawn from a race in which it was previously entered and the withdrawal is not reflected perhaps on the afternoon, previous afternoon's racing forms. Therefore, the scratch sheet is of considerable value because it's published at 8 AM in the morning, distributed promptly and can be used by betters in placing their wagers on that day's races. Indeed the testimony in this case shows that the scratch sheet was vital to these operations. One convicted co-conspirator who testified for the government, testified that on days when the scratch sheet failed to arrive, business fell off by as much as 80 %. There is also evidence that the entire shipment by the month to the Hammond New Agency dropped off drastically after the race in this case.
William H. Rehnquist: Mr. Tuttle, I don't suppose this is really bears on the statute, but is that all the kind of information a scratch sheet contains, is just what horses have been scratched?
Allan A. Tuttle: Oh! I am sorry, Your Honor, it contains more than that. It contains for instance the day's entries, it contains the jockeys and their weights, it contains the track handicapper's predictions and sometimes predictions of the publishers themselves.
William H. Rehnquist: But the reason it's called the scratch sheet is because it has the scratch information?
Allan A. Tuttle: That's right, but that's only one aspect of the information which is contained. It is the information which makes a scratch sheet different from other kinds of horse race betting publications and makes it important that it will be published early in the morning and gotten out and distributed very quickly.
Thurgood Marshall: Mr. Tuttle assume I don't know anything about it, doesn't also include the morning line?
Allan A. Tuttle: That would be called the morning line, the handicapper's odds and the other information that I have spoken and the rapidity with which this is distributed or must be distributed is reflected in the facts of this case. These petitioners and their co-conspirators by prearrangement with the local news agency, the Hammond News Agency, arranged to pick up their copies of the Illinois Sports News at approximately 9:02 in the morning when the 8:30 train from the Randolph Street Station in Chicago, Illinois arrived with these scratch sheets on it. The petitioners would then take their scratch sheets and distribute them to their various horse race betting parlors. Now there are many copies that arrived everyday consigned to the Hammond News Agency. Approximately 57 were picked up and used by the co-conspirators in this – in these five separate cases. Mr Goodman (ph) whom I have mentioned testified for the Government picked up 22 copies a day to use in his gambling operations. He paid for them weekly to the Hammond News Agency, a Mr. Frost (ph) of the Hammond News Agency. Another 35 copies --
Warren E. Burger: Are you emphasizing that he paid for them? Does that mean that it's quite an expensive item?
Allan A. Tuttle: As a matter of fact, they are, Your Honor. At the time of the trial, they were $00.35 a piece. Now much of the same information is -- can be obtained from other papers, but this is this which contains no information except racing information is more expensive because of its rapidity of distribution and fact that you can get it early, you can place your bets early. But my point of indicating the arrangement for payment was in a way to allude indirectly the question of causation because in this case there was an arrangement to receive 22 copies a day and to pay for them on a weekly basis to the Hammond News Agency which was the consignee of these papers from Chicago. The other 35 which were picked by the co-conspirators were picked up at 9 o'clock in the morning and they left envelops of cash at the train station. Later on in the morning in the ordinary course of business, employees of the Hammond News Agency would come, pick up the remaining 33 copies and distribute them to various retail outlets around the Hammond area and they would hit the news stance around 11 -- 10:30 or 11, much later of course than these petitioners had it and had it for use in their betting parlors. Now as I have suggested the question is whether the exclusion of these papers from 1953 entails a similar exclusion from 1952. The statute in this case, the Travel Act, provides and I will read if the Court will indulge me, the relevant part of the statute. The statute provides whoever uses any facility in interstate commerce would be intent and then in subparagraph 3, to promote, manage, carry on, establish, or facilitate the promotion, management, or establishment, or carrying on, of any unlawful activity, and thereafter performs any act, specified in subparagraph 3 which I have just read you, violates the Travel Act. And then the statute defines an unlawful act and significantly it defines it as a business activity, a business enterprise involving gambling, gambling offenses in violation of the laws of the State in which they were committed. Now the Congressional hearings reflect a concern that otherwise lawful or innocent interstate travel was being used to facilitate illegal gambling and I stress illegal gambling. As you know the Travel Act prescribes interstate travel with a purpose to promote other violations of State Law such as narcotics violations, liquor violations, prostitution violations, extortion, arson, extortion and bribery and that has been amended to include arson and controlled substances. But at the time of the hearings, when Attorney General Kennedy testified on behalf of this legislation, the stress was on gambling and the fact that $20,000,000,00 a year changed hands in gambling and gambling was a prime source of funds for the underworld. Indeed his examples all involved gambling. He spoke for example of moving the proceeds of an illegal gambling operation in one state to another state or he spoke for example of the interstate and nationwide travel of layoff men, which indicated gambling operations. Now if Congress was concerned with otherwise lawful travel which might be the subject of promoting an unlawful or illegal activity and violation of state law, Congress was equally careful not to make innocent interstate travel the subject of criminal sanctions, and it was senator Erwin (ph) who stressed this and senator Erwin stated that he would hate to see the time come when this country would make it a crime to travel, having certain thoughts, as he conceived that this act could make it a crime simply that you would be thinking something while you are traveling interstate. And in reaction to senator Erwin's concern, the judiciary committee amended the law and they added a second proviso, they provided as in the overt act requirement in conspiracy cases, they provided the act of the interstate travel, the individual do something which promotes the unlawful activity, thereby assuring that the statute would involve any kind of thought control or punish somebody merely for their thoughts. Now the statute was also limited to be sure not to apply to the individual gambler who might be traveling interstate. Even if he traveled interstate with the intent to engage in illegal gambling and thereafter in fact engaged in illegal gambling, the statute wouldn't cover such activity as Attorney General Kennedy stressed when he testified in support of this legislation that the target was organized crime and the statute had been drafted to cover only what was called travel in furtherance of “business enterprises” so that no casual or sporadic involvement in gambling activities would be covered, but only such regular and continuous conduct as might be classified as a business enterprise. In this way, travel in interstate commerce even with an unlawful purpose in mind is not covered unless it is followed by some kind of overt act after the travel which promotes the unlawful activity, and of course the same language makes it equally clear or doubly plain that innocent interstate travel could never be the subject of any sanction under this law. Now of course there is nothing novel about Congress making interstate travel for an unlawful purpose, the subject of a criminal sanction and criminal responsibility. It is after all no crime to travel interstate with a woman, but in fact travelers for the purposes of prostitution, the Mann Act is violated. Similarly, it is no crime to travel interstate with a child, but if the child is held for ransom and reward, the Limbard (ph) Law is violated. The mails are available to anyone, but if the mails are used in furtherance of a scheme to the fraud, the Mail Fraud Statute is violated. By the same token, anyone can use the telephone, make a long distance telephone call, or anyone can equally send a telegram interstate, but if these facilities are used to further an unlawful activity, then the legitimate objects for Congressional concern and Congressional regulation, and as this Court knows, a classic violation of the Travel Act is the use of the interstate wires to convey betting information, wagers or rational results. Now just this gambling information can be sent interstate to gamblers over the wires, so the morning line in the Illinois Sports News can be sent interstate to promote illegal gambling operations and this fact no more inhibits the lawful movement of the Illinois Sports News, then the Mann Act or the Limbard Law inhibits the interstate travel of woman or children. Now in our view, Section 1953 achieves its result of avoiding criminal responsibility for innocent conduct by an entirely different route. Section 1953 defines a class of contraband, the interstate shipment of which is banned irrespective of the purpose for which it is sent or the motive for which it is sent or the use to which it is put, after it is sent. Section 1953 defines gambling paraphernalia in very broad language, including any slip, token, paper, writing, or other device designed or adapted for use in book making or wagering on sports activities or numbers operation. It was this broad language which the senator Keating (ph) in the hearings on the bill to express concerning that you or I or anyone else might commit a crime under the 1953 provision by traveling from here to New York carrying a copy of the Post because it might happen to contain the results of a sporting activity or the results of a horse race. And it was in response to this concern that Congress amended the statute to say “this Section shall not apply the carriage or transportation in interstate commerce of any newspaper or similar publication, and we concede for the purposes of this argument in any event that the scratch sheet would qualify under that subsection. It seems to us that what 1952 achieves by limiting its coverage in terms of the intent of the activity and the overt acts which are required after the activity, 1953 achieves by a simple definitional exclusion. Now Congress recognized that otherwise innocent travel or movement in interstate commerce could in fact be the subject of criminal responsibility, whether the requisite intend was present and where they were overt acts in furtherance of the unlawful activity following that interstate travel or movement. We see no reason to assume that Congress intended that one particular kind of innocent act, in this case, the transportation by rail of newspapers should be excluded from the subject of criminal responsibility if and only if the requisite purpose is there and overt act is there following the interstate movement or the causing of the interstate movement.
Warren E. Burger: If this material which is in this sheet, racing sheet that you have got was a special column on the sports page of a conventional newspaper and was transported in the ordinary course of sending thousands of them to Philadelphia or Richmond or somewhere else. Would that standing alone violate the statute?
Allan A. Tuttle: Oh! Standing alone, it does nothing at all. One would have to hypothesize circumstances under which it was used. I mean to ship alone doesn't violate the act in any regard. One has to hypothesize the subsequent use --
Warren E. Burger: So it has to be connected that with some other activity?
Allan A. Tuttle: Well, again it depends -- the act requires that it be shipped with a given purpose to promote an unlawful activity and requires also that act of the shipment is used to promote the unlawful activity.
Warren E. Burger: Well, if these are the same gentleman have, then purchase to 'x' a hundred of them and sent them by a special courier and delivered them to people in furtherance of this, then that would violate this statute in your --
Allan A. Tuttle: No question about it, in our view, assuming of course, that they were then used in furtherance of the unlawful activity. We do not -- assuming as we do for the purposes of argument that this is a lawful publication, we would argue that the statute could, in principal be violated by the use of any publication if it were used with the requisite intent and if it were caused to be shipped in interstate commerce and if it were thereafter used to promote an unlawful activity. Now we believe that the evidence in this case show that these petitioners in fact caused the interstate shipment of the Illinois Sports News. Now I have recited to you the way in which it was obtained, the way in which it was distributed, the way in which it was picked up, and the way in which it was used. We therefore believe that these individuals caused the interstate shipment of these newspapers with the intent to promote their unlawful gambling operations, that they thereafter used these newspapers in violation of Indiana law to promote their unlawful gambling operations. And we therefore believe that they were guilty as charged in the indictment and as the jury found, and we further believe that the convictions should be affirmed.
Warren E. Burger: Thank you, Mr. Tuttle. I think your time is consumed, Mr. Grubb. The case is submitted.
Charles W. Grubb: I have no further, Your Honor.