Warren E. Burger: We'll hear arguments next in 73-1596, Hampton against Mow Sun Wong. Mr. Solicitor General, I think you may proceed.
Robert H. Bork: Mr. Chief Justice, may it please the Court. We are here on writ of certiorari to the Ninth Circuit. Respondents are four aliens who have been denied employment in the federal competitive civil service by a reason of the Commissions -- Civil Service Commission's regulation requiring that applicants from most positions be either citizens of United States or persons owing it allegiance. Respondents filed the class action challenging the regulation on constitutional on other grounds. The District Court on the government's motion dismissed the action for failure to state a claim. The Court of Appeals reversed holding that the regulation violates the Equal Protection component of the Due Process Clause of the Fifth Amendment. The Court said that alienage is a suspect to classification so that the compelling governmental interest must be shown they justified treating aliens differently than citizens with respect to federal employment. The Court of Appeals relied we believed mistakenly on the rational of this Court's decisions in Sugarman versus Dougall and Graham against Richardson. Those cases concerned of course state restrictions on the eligibility of the aliens for state employment and state welfare benefits. It is our contention that the Civil Service Commission's regulation is a valid exercise in the national power and I reached that result in alternative ways. My first submission is that the Equal Protection principle has no application to the federal governments dealing with aliens as aliens. It has application of course to the other capacities. I wish to be quite clear about this. The Equal Protection principle applies to persons who are aliens and it protects them from a variety of inequalities such as inequalities imposed on the grounds of their race or religion. But the Equal Protection principle does not apply we think to a pure alienage classification such as that before us.
Potter Stewart: Is the Equal Protection principle of the Fifth Amendment Due Process Clause, in other words, when is the federal government that's making the classification?
Robert H. Bork: That is entirely correct Mr. Justice Stewart when it is valid. Everything I am talking about now is in the federal context and I am at some pains to point out what apparently has not been fully understood by respondents that we are not saying that the Equal Protection principle does not apply against the federal government to a person who is an alien and of course it does. We're only saying it does not apply to in his capacity as alien. It may apply to his capacity whether it's race or religion or sex --
Potter Stewart: Or age?
Robert H. Bork: -- or age or some any other way in which the Equal Protection principle applies and of course other constitutional protection supply to aliens. So, we're not contending any such to make any broad claim. The reason we think that the Equal Protection component of the Due Process Clause of the Fifth Amendment can apply it's because of the plenary powers of the national sovereign with respect to alienage. Our Constitution does not forbid alienage classifications. On the contrary, the Constitution requires the federal government though not the states to employ alienage classifications. Now, my alternative submission will be that at most the Equal Protection Clause principle has a very attenuated application to distinctions between citizens and aliens when those distinctions are made by the federal government. To employ the compelling governmental interest standard as the Court of Appeals did is I think effectively to destroy the distinction between citizens and aliens contained in the Constitution or much of it and certainly to destroy much of the great mass of legislation which distinguishes between citizens and aliens. Some indication of that massive legislation is contained in the appendix to the government's brief. For the federal government, alienage cannot be a suspect classification because the Constitution gives the federal government the power and indeed the duty to make that classification and to legislate with respect to it. And that's a power to duty of course the states do not have. This necessarily means, I think that if the Equal Protection principle has any application here and I think it does not. It is satisfied by meeting the rational basis test and I will argue later that the challenge regulation here clearly meets the rational basis test. But first I want to argue that we ought not to apply the Equal Protection test at all in this case. We have here an exercise by the Civil Service Commission of the delegated combined powers of the Congress and the President. And those powers of course relate to a naturalization foreign policy national defense, treaty making and so forth. And in fact, what has been exercised here it seems to me a power inherent in the idea of the sovereignty of a nation state, the power to distinguish between those who owe it allegiance and those who do not. And so obviously is this power to differentiate between those who owe allegiance and those who do not an attribute of sovereignty that the practice and question here is followed by every nation in the world. And so obviously as this is an attribute of sovereignty that it is been exercised and gone on contested for more than 90 years which fact I think give to this regulation all the support. The long continued and universally accepted usage can confer. This factor seemed to me to make this case completely different from Sugarman versus Dougall and Graham against Richardson. The states are not independent sovereigns; they have no power to regulate naturalization, no power to conduct foreign of affairs, and decide what's required by national defense. No power to make treaties. Nothing in the Constitution gives them a right explicitly granted to the federal government of treating alienage as a proper classification for legislation. If alienage is a suspect classification for state law, it is constitutionally made a proper and indeed inevitable classification for federal law.
Thurgood Marshall: Mr. Solicitor General, did the Congress passed and not giving the states the right to discriminate against alien?
Robert H. Bork: No, I think not Mr. Justice Marshall because that would be if Congress passed a law in giving the states the power what they wished to do with respect to aliens that would not be a federal policy with respect to aliens. That would be simply turning over to state policy a subject that does not belong to state policy.
Thurgood Marshall: So, it is a limitation on Congress' authority over alien?
Robert H. Bork: Oh! There are many limitations Mr. Justice Marshall over the Congress' power over aliens not only may it not turn the power over to the states but must exercise itself as a national power but obviously --
Thurgood Marshall: Could Congress authorize the Civil Service Commission to pay the aliens less than they pay citizens?
Robert H. Bork: I would think that they could Mr. Justice Marshall.
Thurgood Marshall: They could?
Robert H. Bork: I would think that they could. I --
Thurgood Marshall: Well, could Congress pass a law and it says, “You pay female aliens less than you pay other?”
Robert H. Bork: No, I think not Mr. Justice Marshall.
Thurgood Marshall: Why?
Robert H. Bork: Whereas my point the equal protection principle does apply to all persons. And therefore, it applies to persons who also happened to be aliens. I am not contesting that and if an alien is discriminated against the grounds of its race or sex or age then he will be treated by the equal protection principle just as a citizen would be. I'm merely suggesting, arguing that the alienage classification is not one to which the equal protection principle applies. That is when Congress legislates as to all aliens equal protection does not apply when it legislates as to aliens who are women it does apply.
Thurgood Marshall: But it say that the work loss of the United States do not apply to alien?
Robert H. Bork: I think it can, Mr. Justice Marshall. Indeed, we have a variety --
Thurgood Marshall: It's such a little niche that they do whatever they want on employment but anything else.
Robert H. Bork: I haven't thought of it that way and I don't believe Your Honor that I'm dividing it by employment as against something else. I haven't thought of that way and of course much of the legislation about aliens is not legislation about employment it's by a variety --
Thurgood Marshall: I know as the first case it was about employment through acts, wasn't it?
Robert H. Bork: Yes, that was a state regulation upon employment. I think we've never had a --
Thurgood Marshall: Is there any case before that and had anybody else in a suspect classification when the alien is the first one to made suspect?
Robert H. Bork: Well, if the language was used before that Mr. Justice Marshall but it seems to me that we have always known from the inception of the Fourteenth Amendment that race was the primary suspect classification in our Constitution. And I don't know but when the rhetoric of suspect classification began, I do not know. And when that particular formulation of the problem began, I do not know. But I think that the distinction between the state and the federal is shown by it when you look the -- when you move from state law to federal law you also move from cases like Sugarman and Graham to cases like Harisiades against Shaughnessy, Kleindienst against Mandel and so forth; cases that uphold the most severe kinds of restrictions upon aliens. And from the early cases on we have known and this Court said that Congress has power in this field and in fact it has as much or more power in this field that it has in other legislative fields. There's no place for Congress' power is more complete than in this one. Now, --
Potter Stewart: That language -- that not only language but that those thoughts you find basically in immigration and deportation case?
Robert H. Bork: That's entirely correct Mr. Justice Stewart. And I'm fully aware of course that the power of Congress is at its strongest when it's choosing to exclude or class of immigrants or to deport. But I think that decision to admit or exclude is necessarily intertwined with decisions about alien's rights and obligations here. For one thing, this case could be recast if Congress so desired. I would suppose to say that a condition of entry in the United States is not apply for federal employment until you have been naturalized and if we would then have the same thing. In fact, I'm not sure that for that reason this regulation doesn't have all the force that law would have. For another thing, decisions about how many to admit under what terms and so forth and the standard for naturalization are necessarily influenced by Congress ability to control the package of rights and obligations that the alien has while here. And again, we see that in the Constitution itself indeed in the Fourteenth Amendment which gives birth to the Equal Protection principle in our constitutional jurisprudence, there is a distinction between aliens and citizens which is a distinction made as to aliens and citizens in this country not for purposes of immigration. And I will leave the discussion of that distinction to our brief and merely point out that Congress has adjusted this package of rights and obligations that aliens and citizens have again and again throughout our history. And I think that now to begin to apply for the first time, the equal protection principle in the way that the respondents asked would severely hamper Congress' power, destroy it in many respects. And it would be a major constitutional innovation without any warrant in the constitutional text, in its history or indeed in policy. There is for that reason I think only one fully satisfactory formulation of the law with respect to resident aliens. And I would say is this and I think I've said it before but I will stress it as I leave the point. The equal protection principle applies to persons who also are aliens but it does not apply to them in their status as alien.” In any other status, they occupy the equal protection principle may apply to them which is to say that Congress may not impose burdens upon resident aliens because they're white or black or yellow or because of their religion but it may differentiate between aliens and citizens. Congress may not deprive aliens of specific rights guaranteed elsewhere in the Constitution we're not arguing that it may. It obviously may not prison an alien without due process, may not subject them to cruel and unusual punishment and so forth. But the one principle which is manifestly inappropriate when alien -- when the government -- the federal government addresses alienage as a subject is equal protection because inherent the Constitution, inherent the idea of nationhood is a fundamental inequality between citizens and aliens.
Warren E. Burger: What about the right to vote Mr. Solicitor General?
Robert H. Bork: Well, I would think that would be one of the last rights that could be opened to aliens Mr. Chief Justice. That certainly is --
Warren E. Burger: So it can be denied. It is denied, isn't it?
Robert H. Bork: It is denied indeed.
Potter Stewart: Well, that's up to states pretty much, isn't it?
Robert H. Bork: Yes, it is up to the states --
Potter Stewart: Have to involve the federal government?
Robert H. Bork: Well, I don't think Mr. Justice Stewart.
Potter Stewart: Have some states in the past have allowed aliens to vote?
Robert H. Bork: There have been place where aliens have been allowed to vote and I think it might be a delicate constitutional question which I hope I need not embark on here whether the federal government would have in that circumstance if the qualifications --
Potter Stewart: The power to overrule the judgment state --
Robert H. Bork: Power to overrule.
Potter Stewart: -- has never exercised it?
Robert H. Bork: No.
Potter Stewart: In this area?
Robert H. Bork: That's right Mr. Justice Stewart and I think I would reserve that as a possibility but there's no bearing I think upon our present inquiry. And I think this is the logical answer to our case but should this Court determine that the Equal Protection principle is applicable. I continue nonetheless to believe that this Commission regulation is valid. Under the current doctrinal formulation, the equal protection applies with one of two degrees of severity. The federal power I've just sketched means I think that the strict scrutiny mode of analysis or the test of compelling governmental interest is plainly inappropriate to this subject matter. To apply them is to effectively destroy Congress' and the Presidents' undoubted powers in this field. And it is destroy I think very nearly destroy without any warrant the distinction between citizen and alien. In this context, the federal power at least, it seems to me appropriate to note that alienage is not by any means a permanent or a mutable characteristic like race or sex. The disability imposed by this Commission Regulation is both temporary and it is quite limited. Naturalization and the privileges of citizenship are available in five years to an alien and then three, if the alien marries a citizen. Now, each of the respondents in this case has now have been here not when they started the case but now not been here long enough to qualify for citizenship so far as I know the date none of them is applied. One respondent have been here for 28 years and has not troubled to apply for a citizenship and I fail to see why in cases like that benefit should be obtained through a lawsuit rather than to a proclamation of allegiance.
Potter Stewart: Now, in -- as far as that point goes the Court wasn't very much moved by that argument in the Griffiths case was it where it was pretty clear that alien did cite it. She didn't ever want to become American citizens for reasons of her own?
Robert H. Bork: That is quite true Mr. Justice Stewart. The Griffiths case of course was again state restriction.
Potter Stewart: I know but I'm talking about the arguments you're now making.
Robert H. Bork: Well, I would think if there is any place in our policy and in our law where we are entitled to say a benefit is available if you choose to proclaim allegiance but it is not available otherwise it would be precisely in the area of federal employment. For --
Potter Stewart: But this regulation makes no distinction between aliens who were long time aliens and aliens who --
Robert H. Bork: No, it does not.
Potter Stewart: -- hopeless promptly as possible to become citizens, does it?
Robert H. Bork: It does not, that is quite correct.
Potter Stewart: Right. And I don't know if -- has Mrs. Griffiths have been appointed by the federal court under the Criminal Justice Act?
Robert H. Bork: I do not know Mr. Justice Stewart.
Potter Stewart: Do you know if any aliens have? Any alien lawyers?
Robert H. Bork: I do not know, I don't think they're that many of them but perhaps they have. I do not know. But it seems to me that there's a good reason why this regulation does not distinguish between aliens who intend to become citizens and aliens who do not intend to do so and why it covers both classes of aliens. And I think I will briefly try to explain, try to point to some of the factors that lead me to think that this regulation if it must pass a rational relationship test passes it with high mark. And I will cite a few things this regulation does which seem to me valuable and which Congress and the President might rationally think to be viable. At the first place, it offers an inducement for resident aliens to acquire knowledge of this country, to acquire the language, to proclaim allegiance, and to become citizens. And it seems to me that it's quite legitimate for Congress to wish to induce aliens living here to immigrate themselves into our national life and into our political community in this process of becoming citizens. That seems to me to be in fact a rather obvious exercise of the power to make rules to respect the naturalization. Two, it does avoid a rather large and complex of administrative burden that will be entailed by a system in which all federal jobs were classified according to whether or not they entail any aspect of a formulation or execution of policy. And then we had the tag --
Harry A. Blackmun: Isn't that the result of Sugarman and Richardson on the state side?
Robert H. Bork: It is the result on the state side Mr. Justice Blackmun. I think it need not to be result in the federal side because as I have said because of the very strong federal power that exist in this area. And if we come to our rational relation test rather than a compelling governmental interest test which was applied in Sugarman, then I think this reason becomes important. It may not have been enough against the compelling governmental interest test. I think it is if I'm correct that utmost, the rational relationship test applies here. Because the federal government which has many, many employees means would have to tag I suppose aliens so that they were not by accident or inadvertence moot to sensitive facilities or into post that might properly be reserved for citizens if we had to meet this administrative burden. And I suppose it will be a great deal of litigation about that. And third, the federal payroll I think it's proper to note has become an important means for implementing solutions to economic and social problems. Minority groups for one example have been benefited by federal act -- affirmative action hiring that helps to counterbalance some discrimination in the private sector. And I think it might be irrational for Congress to wish to maximize the effectiveness of the federal payroll in this function by confining to it citizens. So I offer three reasons so others could be adduced. The inducement to apply for citizenship and to integrate one's self from the national life and indeed in the political community of this nation. The administrative burden and the use of the federal payroll as a social implement. None of these objectives is impermissible or evil. Each of them bears a rational relation to the regulation promulgated by the Commission which means I think that the regulation does not offend the equal protection principle. So, I come back at the end to where it began. The compelling governmental interest test can hardly be used with respect to federal legislation or federal regulation that is where the federal government has so much power. If the equal protection principle apply I think have satisfied here if it does not apply clearly, the regulation is valid and we believe that the judgment of the Court of Appeals should be reversed.
Harry A. Blackmun: Mr. Solicitor General, did the federal Civil Service Regulations accord any preferential status to veterans now?
Robert H. Bork: I'm not sure about veterans in general of course -- I think, yes they do. They do, I can't give you the details of Mr. Justice Powell. In addition to that of course, an alien who serves has his ability to become a citizen accelerated. And there is I believe a veteran's preference but I can't give you the details of how would operates.
Harry A. Blackmun: General Bork, would it be a disaster if this case and the next one were decided oppositely?
Robert H. Bork: Mr. Justice Blackmun, years of predicting the sky falling and never falls in has lead to believe that very few things turn out to be unqualified disasters. I think I can speak for myself and for the government attorney, Mrs. Shapiro, follows me in saying that infinitely preferable. If both of these cases been cited as we asked. Thank you.
Warren E. Burger: Mr. Steinman.
Edward H. Steinman: Mr. Chief Justice and may it please the Court. Well, counsel for the government is suggesting that the Ninth Circuit opinion is carved out a novel constitutional argument. His argument concerning the non-applicability of Fifth Amendment Protections to aliens when the classification is an alienage, I would submit it's the most novel of arguments. I think it's important to understand that the four respondents in this case were initially seeking jobs that did not involve foreign affairs, did not involve national security, did not involve some of the issues of sovereignty and some of the issues of executive policymaking which was the concern to this Court in Sugarman.
Byron R. White: Well, do you think that the approach necessitates striking the regulation down on its face if you sought certain jobs? Let's assume you're right. Why would the regulation be invalid on its face?
Edward H. Steinman: Well, I think the vice of the regulation is similar to the vice of the regulation which confronted this Court in Sugarman. Or immediately the state case and as the lower court found and that's where a controlling. The vice was the overbreadth that while there are clearly jobs which possibly because of --
Byron R. White: I think that were construing a federal regulation here. You don't strike ordinarily if you can narrow a regulation of the statute, you don't strike it down on its face (Voice Overlap) you don't do that with respect of state statutes or regulations.
Edward H. Steinman: I would agree that it would be obviously best not to strike on a statute but the interpretation of the regulation has been to automatically foreclose at the stage of submitting an application. Any none -- any resident alien, I'd like to make one correction of the opening remarks. The regulation in question says that you must be a citizen or of permanent allegiance as the government's brief at page 81, note 67 of its brief indicates. The Government has interpreted permanent allegiance to only apply to American Samoans. But possibly Mr. Justice White if the Government was more liberal in interpreting permanent allegiance we could say the regulation it is chosen not to do so. One of the ironies of this case is that three of the four name respondents actually at one time work for the federal government. Respondent Wong and respondent Mok were involved in a federal state manpower program and were placed for the general services.
Byron R. White: It certainly true that there are many aliens working for the federal government are there not in other cases in NASA and --
Edward H. Steinman: The laws indicate that there are exceptions from many branches of government including Department of Defense, the Atomic Energy Commission and NASA, Department of (Voice Overlap).
Warren E. Burger: That's by the choice of the federal government, is it not?
Edward H. Steinman: Clearly.
Byron R. White: And here we're talking about the Civil Service Commission?
Edward H. Steinman: Exactly, and the point I'm wishing to make is that these individuals performed competently and performed as the service wishes to promote the efficiency of the service while working on other programs and yet although the supervisors of the record indicates that they performed. One performed outstandingly. The other performed most satisfactory. When the time came when the Government program ended, they were foreclosed totally from seeking and continuing their jobs solely under status as alien. Mr. Justice Powell raised another issue which I'd like to addressed or touched into in the record. He asked about veteran's preferences. There's evidence from the record of a gentleman named Mr. Bor, it appears at the appendix page 31; it's discussed at page 6 of our brief. Mr. Bor arrived in this country as a child. He was dropped in the American -- into the military served for 18 months, 14 of which were in Korea; achieved the rank of Sergeant E-5, received an honorable discharge. And yet when he left the military and try to apply just apply for job at the Postal Service to which he had been a citizen he would receive veteran's preference. He was denied the opportunity to apply and as he states in his affidavit, “Although I'm qualified and loyal enough to serve my country for two years in the military, I'm not qualified and loyal enough to work for the post office.”
Thurgood Marshall: But he didn't apply for citizenship?
Edward H. Steinman: Pardon?
Thurgood Marshall: He did not apply for citizenship?
Edward H. Steinman: At that time he had not. Three of the four name respondents in this --
Thurgood Marshall: Wouldn't it be automatic if he had applied for as a veteran? It would have been no trouble.
Edward H. Steinman: It would've been under the rule he chose not to. Three of the four respondents in this case have filed declarations of intent to become citizen. Obviously, the time the case was filed, they were not eligible because they have not lived here requisite number of years. The Postal Service has now changed its regulation now that it is no longer under the umbrella of the Civil Service Commission. It now allows noncitizens to apply on the same basis for almost all positions in the postal service. I submit that to respond to Mr. Bork's argument that it might be administratively impossible or inconvenient to do so. The Postal Service has more than one half million employees and yet has chosen last May to change its regulations to now allow noncitizens to apply for old most jobs. As far as the Equal Protection Clause, clearly this Court has recognized that the Bill of Rights although not explicitly containing equal protection statements contains equal protection principles. This Court said in the same day they issued decision in Brown versus Board of Education. It would be unthinkable that the same Constitution would impose a lesser duty on the federal government that imposes on the state. This Court has continued to make sure that such and unthinkable anomaly does not occur and throughout the last two decades has applied the same type of standards and the same type approaches in regard to federal discrimination that would've apply had the discrimination been practice by the state. Last term, Mr. Justice Brennan speaking for this Court said in Johnson versus Robison, “If a classification would be invalid under the Equal Protection Clause of the Fourteenth Amendment, it is also inconsistent with the due process requirement of the Fifth Amendment.” Mr. Bork however contends that the Equal Protection Clause does not apply because this case involves the federal government classifying aliens on the basis of their alienage. Unfortunately, such statement ignores the clear holdings of this Court in the last four years. The classifications based on alienage are inherently suspect. Not just sometimes suspect but inherently suspect that “Aliens as a class are prime example of a discreet and insular minority for whom heightened judicial solicitude is appropriate.” I think it's important to emphasize why this Court reached that conclusion. This Court has described the indicia that are common to all the classes which have been deemed suspect. In the Rodriguez case, this Court said that such heightened judicial solicitude was needed because these individuals are “saddled with such disabilities, or subjected to such a history of purposeful and equal treatment, or relegated to such a position; a political powerlessness as to command extraordinary protection from the majoritarian political process.” Mr. Justice Powell in the Griffiths case delineated some of the historical hostility that has been heaved upon noncitizens. The scorn, they have been treated as constitutional outcast. This Court has recognized that most states today do not allow noncitizens to vote that they've been denied to franchise. Likewise, the fact that noncitizens can become citizens if they wish to exercise the option given to them by Congress did not dissuade this case, this Court in other cases in Sugarman. Two with the four appellees chose not to exercise the right to become a citizen. Mr. Justice Powell in Griffiths, explicitly stated that Mrs. Griffiths chose not to file a declaration of intent even in Graham versus Richardson, the appellee Richardson have been in this country far long than necessary to become a citizen. If the fact that she chose not to become a citizen also was have no important to this Court. What I'm saying is that the classification based on alienage does not change because it's the federal government. This Court has continued to recognize that when the federal government itself practices discrimination. It is bound by the same standard and the same protections which have been put on the states in some more discrimination. In the Griffiths case, Mr. Justice Powell said that the interests has been characterized but the government must show in many ways overriding, compelling, important, substantial. I'm not worried about pigeonhole in this case, in any of those words as the Court said we attribute no particular significance to these variations in diction. What is important is when such discrimination exists; the Government has a duty to show something more than just some rational basis. Although, as we contend even under that more differential standard as the Ninth Circuit find in this case, the Government has not satisfied its duty. I just like to make one remark in that area. The test is whether or not the Government has employed means which rationally relate to some governmental purpose. There's only one purpose in this case. The purpose is to best promote the efficiency of the Civil Service, that's a direct quote from 5 U.S.C. 3301. The purpose of the Civil Service system is to overcome the spoils which historically unfortunate attached the government employment. The purpose of a Civil Service system is not to hire citizens. This Court has long discarded the old notion of a special public interest. The purpose is to have an efficient government and there is nothing about being a noncitizen, about being a resident alien which means that a person will not be efficient, will not be a competent employee. Unfortunately, my clients and other resident aliens throughout the country are not even given the right to apply, are not even given the right to go through the normal investigative screening process which show whether individual is efficient for the job, to show whether the individual may be loyal. I do not deny that sometimes the person because of his noncitizen status may not be loyal. This Government spends millions of dollars each year and employs tens of thousands of people to check on the loyalty of citizens for certain position. My client wanted to be treated equally in that sense.
Thurgood Marshall: Well, your client they're willing to take the oath to support the Constitution of the United States and defend it?
Edward H. Steinman: To the extent --
Thurgood Marshall: One of them did.
Edward H. Steinman: Three of them have.
Thurgood Marshall: But I said one had certainly did.
Edward H. Steinman: Three of the --
Thurgood Marshall: There is not objection on the employee direct?
Edward H. Steinman: No, the fourth has not for her own purpose but of her own religious belief and own political reasons. And I don't think that she would sign it. The Congress does not require in the passage on 1952. Congress required that resident aliens come in this country signed a declaration of intent to become a citizen. The 1952 law erased that requirement. So the Congress itself does not do it. I would think there probably a large percentage of resident aliens would be willing to sign that oath. Unfortunately, the regulation and its interpretation by the Civil Service Commission preclude that possibility.
Byron R. White: Would you expand on your comment that your one client refused for her own religious and political reasons. Tell us what that means.
Edward H. Steinman: When I say, “refused” she has not chosen the option which Congress has given her. It is not in the records. I'm going out the record which she have told me is that she feels that she is a citizen of the world and that she doesn't feel that she owes any more or less loyalty to any country. She chooses -- she was and her name is Ms. Lum. She was sought by HEW to be in evaluator of education programs. She has 15 years of teaching experience. She has one master's degree and studied at many universities including Stanford and Seton Hall. They asked her to apply, she couldn't. Her point right after why did she become a -- why didn't she become a citizen. She said initially she didn't for political reasons because it might have harmed her family in China. Over the years she has said that she would like her status of being citizen of the world. Congress until 1952 requires --
Potter Stewart: She is a citizen in the world but what nation in fact is she a citizen?
Edward H. Steinman: I don't think that -- I think that she feels she is a resident in United States but in our conversation she has not stated that she is a citizen of anyone country.
Potter Stewart: Where was she born China -- Mainland China?
Edward H. Steinman: Yes. The other three named respondents have filed declaration of intent to become a citizen although as I said the Congress no longer requires it. Consequence of Government has said there are even if you apply assumes the more differential test. He says that it's satisfied by various interests to induce people to become citizens. Well, I would assume also that we can induce people become citizens by not allowing into work for state governments. Such a factor was raised before this Court and obviously not found dispositive. Also, that notion of administrative burdens, I would submit that administrative burdens are both legally and factually relevant. This Court has very strongly said that the Constitution requires higher values and speed and efficiency that “this has been a Frontiero case decided in 1973.” There could be no doubt that an administrative convenience is not a shibboleth. The mere recitation of which dictates the constitutionality. I would also point this Court to page 28 of our brief a long quote from Mr. Justice Black in Reid versus Covert where he said that “to allow an argument administrative convenience is a very dangerous doctrine and if allowed to flourish would destroy the basis of a written Constitution and undermine the basis of our Government. I also submit that administrative inconvenience is factually irrelevant. Although, there are millions of jobs in the federal Civil Service very few involved the type of policymaking issues, involved the type of responsibilities which this Court recognize in Sugarman might best be reserved to citizens. I also submit that the fact that the U.S. Postal Service which employs more than a half million people itself has found that it could change its regulations is another example that administrative inconvenience even if legally relevant which we do not agree.
Warren E. Burger: Well, aren't we talking about constitutional power here if the government wanted to in any particular department assuming that Mr. Bork, the Solicitor General's position is entirely correct they can waive it with respect to any particular department or employment can?
Edward H. Steinman: That's right. They have chosen not to. They have chosen to issue a blanket exclusion.
Warren E. Burger: Now, what about your argument on discrimination. Do we not discriminate against aliens when we classify them in a way that they must apply for citizenship so that the very denial of citizenship benefits until they take some step which native born American need not take it is a form of discrimination, is it not?
Edward H. Steinman: Yes, I think the answer though is stems -- well, the problem which you raised tends some with confusion. Plenary power of the United States Government is not over aliens last in Sugarman at page 646. This Court said, “Its comprehensive power over immigration naturalization.” And to the extent that decisions are made concerning who enters this country; the conditions of naturalization whom who is deported that is to what the plenary power addresses itself. But as this Court stated in 1970 and I quote it's at page 39 of the brief but the case is Hellenic Lines versus Rhodetis, this is a quote. “The Bills of Rights is a futile authority for the alien seeking admission for the first time to these shores. But once an alien lawfully enters and resides in this country he becomes invested with the rights guaranteed by the Constitution to all people within our border.” And I will skip a few sentences and go on to the last. “The Constitution extends an alien of privileges to all persons and guards against any encroachment on those rights by federal or state authority. The plenary power argument --
Warren E. Burger: And what kind of a case was that?
Edward H. Steinman: This was a case concerning benefits under the Jones Act for seaman but the argument was made that because the person was only a lawfully resident alien he was not entitled to certain benefits.
Warren E. Burger: Why do you have to say about Mr. -- what the Solicitor General's point but Congress would have plenary power to attach conditions to the original entry?
Edward H. Steinman: I would think that is probably correct. I would think I would also make this Court aware that Congress in 1965 by statute took away any power that it might have or it need not do so to discriminate against incoming aliens the basis of race free to religion. And according to my research and according to the handbook immigration law of Mr. Gordon and Mr. Rosenfeld there are currently only two laws on the books which condition of course any condition an alien is entering. One is a bond for those who might become dependent in the welfare system. The other relates to aliens who might otherwise be inadmissible. I agree with you that under the decisions of this Court although I might personally not like that. Congress can attach any conditions it wishes on those who have not yet entered the country. One of the key factors is whether or not someone is lawfully here.
Warren E. Burger: In putting excluding them entirely?
Edward H. Steinman: I would think so. I would also think that Congress could even say that you enter the country in a condition you can't work for the state or federal -- for the state government. The issue in this case involves people who are lawfully here.
William H. Rehnquist: To the extent Mr. Steinman you say Congress has plenary power over conditions of naturalization to the extent your argument were followed here. I take it Congress would not have a great deal to do in that area. There's very little it can do to distinguish between people who are naturalized and people who are simply resident aliens and haven't sought naturalization.
Edward H. Steinman: I think there are many distinction between naturalize and native born citizens and resident aliens. First of all, I've see decisions concerning immigration and deportation can only be made in regard to resident aliens. Citizens are not covered by that. Second of all, although as this Court recognized the Constitution applies to both citizens and noncitizens. There is a difference on how the Constitution applies. If you're an alien, the Government is trying to do in this case can suggest possible compelling to overwrite the interest why an alien can be discriminated against. If you're citizen, there is no interest that would allow the Government to discriminate against you on your status as a citizen. Because you are a citizen, you cannot be denied the right to vote, the right to employment. You may be denied for other reasons because you are an alien you may under the Constitution be denied those rights, if the Government can show a compelling interest.
William H. Rehnquist: Well, has this Court ever found that the Government was able to show a compelling interest where the compelling interest test was applied?
Edward H. Steinman: I am not aware of that but I would think that in the Sugarman case you explicitly suggest that in the area of voting and the area of holding high public office and the area of holding positions with public policy and confidential components that the Government might be able to satisfy the state government, might be able to satisfy the compelling interest.
Byron R. White: In other words, the Justice is really asking whether the choice of the test doesn't dictate the result.
Edward H. Steinman: I think in this case it doesn't because I think that the respondents prevail under either test to the extent that the choice of the test dictates the result that is because the Constitution is very zealous to make sure that members of suspect classes have heightened judicial protection. The problem in this case of course is not whether or not the federal government can for certain job requires citizenship. We don't object to that, we think it can. The problem here is the blanket exclusion and obviously the vice of overbreadth is very serious.
Byron R. White: Well, do you say the Government -- that Congress could impose conditions on entry including a condition that you would (Inaudible) for state government? I take it do you suggest that just hasn't exercise that power?
Edward H. Steinman: That's right.
Byron R. White: But if it had you wouldn't be here?
Edward H. Steinman: Well, I'm not sure I wouldn't be here but I think the test could be quite different and I think this Court would give more difference at the congressional power. As our brief suggest, we don't think that even if plenary power exist that it's something which automatically means to government wins. In other context, this Court has said that you cannot invoke a plenary power as “talismanic incantation to support the exercise of any Congressional power.” But clearly if we are in the area of the plenary power in regard to decisions concerning immigration or deportation, I would think that the Government would have a much easier burden to satisfy.
Byron R. White: How do you categorize the federal power to exclude or to deport an alien if he commits a crime?
Edward H. Steinman: That is under the plenary power, under the Constitution which gives Congress the constitution only says plenary power regarding naturalization. This Court has said that implicitly contains plenary power over decisions in regard to immigration and deportation. That's for the plenary power is. The plenary power is not totally over aliens.
Byron R. White: So you would say that if the Government can deport a person for committing a crime, the Government could if it said so clearly deporting for trying to work for the Government or for working for Government?
Edward H. Steinman: This Court has over in the last two decades carved out some substance procedure -- substance due process protections for those being deported. I'm not sure that like example you give would satisfy the Court protection.
Byron R. White: But this is clearly big difference for example between a citizen and an alien?
Edward H. Steinman: I totally agree and fortunately this case does not involve resident aliens who are doing something wrong but involves resident alien who wish to work for the government and use his skills which they brought with them in the best ways.
Byron R. White: So you think this case really involves -- in from one point of view only and argue and over whether that Congress has exercise powers that it obviously had?
Edward H. Steinman: Well, I think that Congress exercises power. I don't think it exercise powers in the area of plenary power as this Court has carved out. I think that in one way to think of the plenary power's argument is that when this Court has focused on issues of immigration and deportation it is because they involved issues of national security, they involved issues of foreign affairs, they involved issues of the sovereignty of this country and when those type issues are intertwined it becomes more important for this Court to recognize Congress' powers given by the Constitution. Applying for federal employment as a janitor or applying to federal employment as a file clerk raises no issue of national security, it raises no issue of foreign affairs and I think that is the distinction which has to be made.
Byron R. White: Well, what kind of employment did your fourth client apply for the one who is the citizen of the world?
Edward H. Steinman: She was sought -- HEW asked her if she was interested in being an evaluator of education programs and on their request she sought to file an application and was not permitted to file an application. And should it turn out Mr. Justice Blackmun that the position that she sought might involve issues of national security, might involve the type of executive policymaking which was concerning to this Court and into the Sugarman decision and quite properly she might be foreclosed in that position. The problem is that the regulation as it reads now does not permit that decision to even be made. It cuts her off at the start before anyone can inquire into her application or abilities.
Potter Stewart: This regulation is common to most of the nations in the world, isn't it?
Edward H. Steinman: You're right.
Potter Stewart: I suppose your point is that they don't have a Constitution of the United States and they can indulge in all the xenophobia they want to?
Edward H. Steinman: Well, this Court has said repeatedly the Reid case Mr. Justice Black said that United States has entirely featured the Constitution and its power and authority have no other source. My one observation I think is important that if we look to International law and this Court would to decide of the Sugarman and Griffiths cases totally the other way because the international law does not permit noncitizens to work in the states of various countries.
Potter Stewart: Well, most countries are not federal systems when such (Voice Overlap).
Edward H. Steinman: But those that are would not reach decisions of this Court reached Sugarman. Likewise, the Government properly said that this type of regulation has been in the books for nearly hundred years. Well, clearly as this Court has said that no one requires a vested or protected right in violating the Constitution. Mr. Justice Burger in 1970 in the Williams versus Illinois case I think said at best. New cases exposed all the infirmities which apathy or absence of challenge is permitted to stand but the constitutional imperative of Equal Protection Clause must have priority over the comfortable convenience of the status quo. We fill very strongly that Ninth Circuit was entirely correct in striking on these regulations as being unconstitutional. We also feel strong as our brief indicate that the Ninth Circuit could've avoid to the constitutional issue by finding that this regulation was not authorized by the United States Congress or the President of the United States. This Court has required when sensitive individual rights are involved that there be explicit authorizations when the Executive Branch issues a regulation that the substantial restraints and employment opportunities which raise issues of constitutional mention -- require explicit and specific authorization. This is from Greene versus McElroy. In this situation, there is no congressional authorization. The statutes since 1883 are totally silent in citizenship. They are specific though about a merely of other employment criteria. They authorized the President to ascertain fitness as to age, health, character, knowledge, ability for employment sought. The specificity with regard to these five criteria I would submit indicate that other criteria were not intended and given the fact that the whole operation the Civil Service of program is to best promote the efficiency of the Civil Service. It can best be promoted by a larger pool of employees not a smaller pool.
Warren E. Burger: Well, the Government has solved that problem by picking and choosing which alien it wants in the past, does it not?
Edward H. Steinman: None of the regulation --
Warren E. Burger: It doesn't deny itself the pool. It picks and chooses Wong or Von Braun or various other people when they have a great need for the protective services?
Edward H. Steinman: Unfortunately, my clients are not of status of Mr. Von Braun and my clients fall under the competitive Civil Service. The federal government has chosen when none competitive civil service.
Warren E. Burger: We'll resume after lunch.
Edward H. Steinman: Thank you. [Lunch Recess]
Warren E. Burger: Mr. Steinman, you have a few minutes left.
Edward H. Steinman: Thank you Mr. Chief Justice Burger, may it please the Court. My remarks ended concerning our arguments that the regulation is not authorized by the Congress or the President and that the regulation also conflicts with two Executive Orders. I feel that our presentation of the brief adequately covers that. I'd like to conclude my remark that under the Constitution of United States, the Congress has many alternatives, many paths it can take. It can as suggested by this Court's decision in Sugarman, issue regulation, statutes which say that particular positions because of issues of sensitivity, because of issues of national security, because they involved the formulation, the execution, the review of broad public policy may only rest with citizens. Likewise, as we suggested this morning, Congress if it chooses and it has not so chosen yet, can impose certain conditions on those who enter, those who are not yet achieved that status of lawful resident alien; those who have still not touched upon the soil of the country. The point is that Congress has not chosen to do that.
Byron R. White: I need to make -- to get that clear. Does a condition at that Congress might impose? Does it end when they finally admit him to the country?
Edward H. Steinman: According to the decisions of this Court, the importance that attaches when a person becomes a lawful resident alien that is enter this country as a resident alien to be here on a permanent basis. That is when the person's rights under the Constitution as a person come into effect.
Byron R. White: Do you suggest then that if you admit a person to this country for a permanent residence or even for temporary residence that the condition -- you cannot impose the condition that while he is here he not work for the federal government?
Edward H. Steinman: No, I'm suggesting that once he is here, the condition will not be imposed. If that is impose as a condition of its entry into United States that is entirely a different matter. That --
Byron R. White: And you say that has not been done here.
Edward H. Steinman: That has not been and though it is not and as I have suggested that Congress has only in two different areas imposed conditions on those who entered United States. This is not this case here.
Lewis F. Powell, Jr.: If that condition were imposed upon his entry and he violated the condition, what's the Government sanction?
Edward H. Steinman: Government obviously can potentially if that is one of the grounds for deportation. The Government has chosen first not to use -- impose the condition or second or the Government has not utilized deportation for violation of certain types of laws. But the Government always have the powers of deportation subject to of course constitutional constraints that are placed on that.
Lewis F. Powell, Jr.: And it could disqualify the alien working for the Government? Well, then aren't you really -- if you prevail here aren't you really opening the door to adjust this kind of action by Congress and if it is taken are not your client's (Inaudible) than they are to date?
Edward H. Steinman: Clearly, my clients wouldn't be because there are resident aliens but possibly future immigrants to this country might have conditions post now. Let me -- my point is that for purposes of argument in this case I will concede that Congress has it. As an attorney of that case came before me, I would like to be back before this Court (Voice Overlap) point.
Potter Stewart: Do you say it was under constitutional condition?
Edward H. Steinman: I would say that, but I'm trying to say that at this point Congress the vehicle that Congress chose and has chosen now a blanket regulation that only deals with resident aliens is not a proper vehicle under the Constitution. In Graham, this Court said, “The Congress does not have the power to authorize the individual states to violate the Equal Protection Clause.” What I'm suggesting in this case is that Congress doesn't have the power to authorize itself to violate the Fifth Amendment. Whatever tests this Court employs the compelling interest test a rational relation etcetera. The Congress has violated the Constitution. Should Congress choose other vehicles and I hope that Congress would take the lead that Mr. Justice Blackmun suggested in Sugarman that possibly identified those types of positions were maybe we wished to have citizen formulation and execution review that brought public policy that Congress take the lead of a postal service where the postal service has identified its certain sensitive positions still must be held only by citizens. But that for the broad mass of people such as the jobs that my clients are seeking, unfortunately not seeking a job sought by in Mr. Van Braun that citizenship is clearly not relevant for that. Thank you very much.
Warren E. Burger: Thank you Mr. Steinman. Mr. Solicitor General, do you have anything further?
Robert H. Bork: I have nothing further Mr. Chief Justice.
Warren E. Burger: Thank you gentlemen. The case is submitted.


Warren E. Burger: We will hear arguments next in Mabry against Johnson. Mr. Attorney General, I think you may proceed whenever you are ready.
John Steven Clark: Mr. Chief Justice, and may it please the Court, the state appears here as a petitioner because of the importance it attaches to the resolution of this case on its merits due to the split in the circuits and that impact on the criminal justice system. That issue, as we define it, is, is the defendant constitutionally entitled to specific performance of a plea offer once made, then withdrawn, prior to entry of a guilty plea or a showing of detrimental reliance or prejudice.
Byron R. White: But after his acceptance.
John Steven Clark: Yes, Your Honor. I will argue that a better rule of law and a better policy is that specific performance is only constitutionally entitled when that defendant has made a showing of detrimental reliance or prejudice, and that there is an adequate remedy at law, and that a rigid rule, the rigid rule enunciated by the Eight Circuit Court of Appeals below, has the effect of stripping the prosecutor of any discretion, the trial court of any discretion, and perhaps most importantly, creating a constitutional right and a unilateral expectation of the defendant.
Warren E. Burger: Under Arkansas law, who makes the final decision on sentences?
John Steven Clark: The trial court, Your Honor.
Warren E. Burger: And on the acceptance of pleas?
John Steven Clark: The trial court, Your Honor, would consider the plea offer that was made, and would decide whether it was acceptable and either accept it or not.
Warren E. Burger: He can reject it if he wishes?
John Steven Clark: Yes, sir, the trial court may reject the offer. The facts below briefly are these. Fourteen years ago, in 1970, the defendant was charged with murder in the first degree, burglary, and assault with intent to kill. He was convicted on the charge of murder and received life imprisonment. He was convicted on the charge of burglary and assault with intent to kill and received a sentence of 21 years and 12 years respectively, which were to be served concurrently. In 1972, the Arkansas Supreme Court reversed the murder conviction for inadequate jury instruction, and defendant was appointed a counsel. He was arraigned, and a trial date was set. Late Friday afternoon, October 27th, 1972, the deputy prosecuting attorney communicated to the defense counsel a plea offer, that offer being, if the defendant would plead guilty to 21 years concurrent to the charge of accessory after felony murder, a plea could be stricken, a recommended plea could be agreed to. Defense counsel took that offer to the defendant at the penitentiary the next day, and he agreed. The very next working day, Monday, October 30th, defense counsel communicated to the deputy prosecuting attorney his agreement, and was informed there was a mistake, that the plea recommendation would have to be for a sentence of 21 years consecutive rather than concurrent. Defense counsel or defendant had no further comment to either the prosecutor or to the court until November the 8th of that year, when the defendant appeared before the court for trial on the charge of murder with a plea of not guilty. That trial ended in mistrial. A subsequent date was set. It was continued, and the in February of 1973, the defendant, in the presence of a jury, withdrew his plea of guilty to the charge of murder in the first degree, entered voluntarily a plea of... excuse me, withdrew his plea of not guilty to murder in the first degree, entered a plea of guilty to the charge of accessory after felony murder, and was sentenced to 21 years consecutively.
Sandra Day O'Connor: General Clark, is the defendant now released from custody?
John Steven Clark: Yes, Your Honor. The defendant is on parole now.
Sandra Day O'Connor: And served how much time?
John Steven Clark: Defendant was sentenced in 1970 and '71, and was released in 1977, I believe... '79, Your Honor.
Sandra Day O'Connor: And the sentence he had been given was a total of how many years?
John Steven Clark: For the charge of burglary and assault with intent to kill, 21 years for burglary and 12 for assault with intent to kill, and that was the sentence he was served. He is still under the subject and control of the Board of Pardons and Paroles of the state of Arkansas, and his parole eligibility date for absolute release would be March 17, 1988, or March 17, 2009, depending on the sentence.
Sandra Day O'Connor: In Arkansas, does a plea agreement have to be entered into in writing ultimately before it is put into effect?
John Steven Clark: There is not a requirement in the state statute, Your Honor.
Sandra Day O'Connor: But it does have to be approved by the judge?
John Steven Clark: The trial court must approve any plea that has been offered to a defendant. This Court has recognized that plea bargaining is an inherent part of that criminal justice process, and inherent in any plea bargaining agreement is the requirement of fundamental fairness. In Santobello this Court enunciated that a defendant was only entitled to specific performance where there had been that showing of detrimental reliance or prejudice. In the case at bar, there has been no showing of reliance or prejudice, and fundamental fairness requires that the benefit inure equally to the state as it does to the defendant.
Thurgood Marshall: Where was that in Santobello that there was reliance on--
John Steven Clark: Excuse me, Your Honor?
Thurgood Marshall: --You said that the defendant in Santobello had relied on the plea bargaining.
John Steven Clark: Yes, Your Honor.
Thurgood Marshall: Is that in the opinion?
John Steven Clark: The defendant relied by entering a plea of guilty.
Thurgood Marshall: But it is not in the... the opinion doesn't say that, does it?
John Steven Clark: Your Honor, as I understand the facts, the defendant did enter a plea of guilty.
Thurgood Marshall: The opinion doesn't say that, does it?
John Steven Clark: No, Your Honor, it does not.
Thurgood Marshall: It does?
John Steven Clark: It does say that. Yes, Your Honor. Excuse me.
Thurgood Marshall: It says that he relied on it?
John Steven Clark: He relied by virtue of entering a plea of guilty.
Thurgood Marshall: And that that prejudiced him?
John Steven Clark: That shows that reliance. Yes, Your Honor. In this instance, in the case at bar, Mr. Johnson did not enter any plea of guilty. In fact, the plea bargaining was revoked on Monday, when there had been a mistake indicated.
Thurgood Marshall: We are talking about the bargaining between the man and the prosecutor.
John Steven Clark: Yes, Your Honor.
Thurgood Marshall: That is what Santobello is about, and that is what this case is about, and I'm not too sure Santobello helps you that much.
John Steven Clark: Your Honor, I would submit to you that Santobello does help in the sense that unless the defendant shows there has been some detrimental reliance or some prejudice. In this instance the facts do not show that. In this instance, the defendant was offered a bargain. There was a mistake, an honest mistake. As soon as that offer was accepted and communicated back to the prosecutor, to be known that there was a mistake, the prosecutor gave evidence that there was a mistake. At that point, the defendant entered a plea of not guilty, went to trial on the plea of not guilty. The defendant did not raise at any time to the court or to the prosecutor that there had been any bad faith, there had been any indication by the prosecutor of vindictiveness, just indicated that there was a mistake. In fact, I think the mistake is fairly self-evident if you logically conclude what occurred. Here was the defendant serving 21 years for burglary and 12 years for assault with intent to kill, doing time. He had been tried once for murder in the first degree, convicted, and sentenced to life. Now, here was the state coming forward with a plea bargain which said you could serve 21 years concurrent. It would have been as if the deputy prosecutor had said, would you accept a plea bargain in which we will drop all charges against your defendant. And so I think it is obvious from the logical conclusion that there was a mistake here, and that in this instance the defendant was not prejudiced by that mistake, because he did have an adequate remedy, which was trial by jury.
William H. Rehnquist: General Clark, the Court of Appeals seems to have concluded that the writ of habeas corpus should issue unless the state resentenced the defendant in accordance with the concurrent sentence plea proposal. Do you know why the Court of Appeals made nothing of the fact that the trial judge in Arkansas had never approved the plea bargain?
John Steven Clark: Your Honor, I do not know why they did not. That is the issue that brings the state to this petition, for the reason that that erodes all discretion of the trial judge. It is such a rigid, inflexible rule that there is no benefit, no mutuality of advantage that goes and flows to the state from plea bargaining for the very reason that you are bound only to the unilateral expectation of the defendant, and that there is some mutuality of advantage that is a part of the plea bargaining process that inures to the state.
William H. Rehnquist: But what if the Court of appeals, instead of saying what it did, it said, until the state submits the plea bargain to the judge who tried the case, saying the prosecutor is bound but not the trial judge. Would you still... Under your theory it is still objectionable, isn't it?
John Steven Clark: Yes, Your Honor, it is still objectionable. That obviously is a better remedy than what we have now, but it is still objectionable, because of the split in the circuits and the fact that predicated on this unilateral expectation of the defendant, and I think we find a situation where two disastrous results occur, the first of which is that we have given rise to a constitutional right to a defendant who has been engaged in the plea negotiation process, which this Court has enunciated that plea bargaining is not a constitutional right. So, for those defendants that are not involved in the plea negotiation process, they don't have the same issue to bring to an appellate... for an appellate remedy of post-conviction remedy. Secondly, the effect of depending solely on the unilateral expectations of defendant can create a situation where literally each case on its merits will have to be reviewed through the post-conviction remedy and appellate process without being able to set a standard by which they can be judged against, because each defendant will have some expectation, I didn't believe that I was going to be sentenced to 21 years consecutive, and you get into this Court having to ask of events of five, ten, and fifteen years ago, what did one deputy prosecuting attorney say to one deputy public defender? What was the context of the five to seven minute conversation? What in fact happens if the defense counsel makes a mistake? So it seems to me that the decision below was a very important decision in that it erodes the flexibility of fundamental fairness as it applies to the criminal justice system, and as I have said there would be no benefit that would have flown to the state if you follow the strict adherence of the court below, because Johnson would not be serving any time for the crime of murder. And although the court below says it does not rely on principles of contract, it does seem to adhere to some contracting theory in the sense that there is an offer and there was an acceptance, and therefore the state should be bound. I submit to you that what we are discussing here are not issues of contract, and though the analogy may be important from the standpoint of being somewhat instructive, we are dealing with constitutional rights.
John Paul Stevens: General Clark, just so I understand your position, in this particular case you say it would have been silly to make this offer, because it really was no punishment at all.
John Steven Clark: Yes, Your Honor.
John Paul Stevens: But you would make the same constitutional argument if they had offered him 15 years instead of life or something like 15 years consecutive and then later changed their mind and decided it ought to be 21 years consecutive.
John Steven Clark: Yes, sir, I would make the same argument if you withdraw the plea if no prejudice had attached, there had been no detrimental reliance. I would also to this Court that as I said, that the result of this decision in terms of contract is one which this... we are talking about constitutional rights and the deprivation of liberty, and that if you were just going to analogize simply to contract, where one party negotiates with another, you realize that both parties have the power to enforce that agreement, and in this instance the criminal defendant has the right to withdraw that plea, even though there has been a bargain struck. The offense to the dignity of the state in terms of prosecution and the very narrow rigid rule applied by the Eighth Circuit is this. Take this situation. Had the prosecutor offered 20 years, 25 years, to be specific, and the defender had heard only five and communicated that five-year offer to his defendant, he would have said, I accept, would have communicated back to the prosecuting attorney, we accept the plea of five years, but in fact it should have been communicated to the one who originally made the offer, who was out sick, to a second one, and they agreed. And then the prosecution went forward to take a statement from the defendant showing some reliance on his part in which he perhaps implicated other accessories to this crime. Then in fact only at the time that we appeared before the bar of justice of the court at the trial court level would we find the situation where the defendant could have raised the issue of he had unilaterally expected a five-year sentence instead of a 25-year sentence, and his expectation was predicated on the argument of his defense counsel, the mistake there, and that if you follow the rule of the Eighth Circuit below and its rigid application, you could contend that that bargain must be struck, and in fact that defendant is entitled to that when the mistake was not made by the government whatsoever. The argument also has been made that the government must act scrupulously. If you can't trust the government, who can you trust? Well, in fact, the better policy, of course, is that in any plea bargaining situation between the prosecution and the defense, every offer and agreement should be made, but the fact also is that we do not deal with technical precision. People do make mistakes. And the trust of the defendant is not based really in the prosecutor, because the prosecutor is the defendant's advocate. The trust of the defendant is predicated in his belief in the court. And so therefore the decision below does not fashion an adequate remedy in the sense of mutuality of advantage that it could gain through the plea bargaining process, because the court needs the discretion to review these plea bargaining negotiations and then order, one, specific performance or, two, recision, which gives that defendant an adequate remedy, which is trial by jury. Excuse me, Your Honor. I think it is important from the perspective of the state to indicate that unless we have a standard enunciated by this Court, a standard which indicates that without some showing of bad faith, without some showing of detrimental reliance, that we have an unworkable triple justice system in which the state must function, because virtually in the calendar year 1983 just in the United States District Courts alone there were some 35,000 defendants who plead guilty or nolo to criminal charges. Of that number, some 29,000... excuse me, were charged with criminal offenses. Of that number, some 29,000 either pled guilty or in fact pled nolo. So you have 30,000 out of 35,000 coming into the system by virtue of plea bargaining and the negotiation process, and a mutuality of advantage must flow to the state. It must flow to the state or the state finds itself continually in litigation as to the expectation of the defendant. The remedy that the state would beseech this Court and urge this Court to give is that standard, the showing of bad faith, the showing of some detrimental reliance, and that that is not just mistake, because mistake is not enough in that if you follow just mistake there is no punishment, for instance, in this case at bar, that would flow to the defendant, and no respect for the dignity of the people of the state of Arkansas for an offense committed against its dignity and its citizenry. I would conclude, Your Honor, by simply saying this. Fundamental fairness and mutuality of advantage of plea bargaining require that a punishment must fit the crime, that the state must have the ability to deal equally and dispose of cases quickly, and deal equally with the defendant in the plea bargaining process, and that to protect the rights of the citizenry of our state, the defendant is not entitled to any specific performance of a plea bargain made and then withdrawn unless that defendant has in fact demonstrated that there has been some detrimental reliance or some prejudice. If there are no further questions of the Court.
Warren E. Burger: Very well. I think our amicus counsel wants to be heard at this time.
Jerrold J. Ganzfried: Thank you, Mr. Chief Justice, and may it please the Court. In our view, the Court of Appeals incorrectly magnified the respondent's unilateral expectations into a constitutional... a protected constitutional right. Since the federal courts, of course, have no general supervisory power over the state courts in criminal cases, the role of this Court in a habeas proceeding is limited to correcting constitutional violations, and it is our submission that such questions arise only when the defendant's reliance on a plea agreement substantially induces his waiver of a right protected by the Constitution. Ordinarily such an issue will not arise until a defendant pleads guilty, but if the prosecutor breaches his bargain after that, Santobello teaches that a remedy may be appropriate, that the defendant would be entitled to relief, and the reason is that where the bargain is a material inducement to the plea, the knowing and voluntary nature of the plea is called into question. Now, admittedly, there may be some cases where similar concerns would arise prior to the plea, where the defendant has detrimentally relied on the bargain, for example, by cooperating with ongoing investigation, but the same principle applies here, too. The defendant would be entitled to some kind of relief only because his reliance on the agreement undermines the knowing and voluntary waiver of a protected constitutional right, and that is the privilege against self-incrimination.
Warren E. Burger: In your view of Arkansas law, at what point could the defendant have withdrawn his participation and said, I have changed my mind, I want to go to trial?
Jerrold J. Ganzfried: Any time.
Warren E. Burger: Any time up to when?
Jerrold J. Ganzfried: As I understand it, certainly any time up through the entry of his plea of guilty, and in fact I think under the current rules in Arkansas he could move to withdraw his plea after the plea had been tendered but before sentence had been passed by the court.
John Paul Stevens: May I ask if your emphasis on detrimental reliance and prejudice means that it is sort of an estoppel theory? The prosecutor becomes estopped if the other party relies?
Jerrold J. Ganzfried: Well, it could be put in those terms. Of course, in the contract law analogy and promissory estoppel, the reliance by the other side, of course, has to be reasonable and justified, and in the context--
John Paul Stevens: And there has to be a right at stake, I guess. There has to be a right at stake. His right to a trial is at stake.
Jerrold J. Ganzfried: --Frankly, in terms of the constitutional vocabulary, to move aside from the contract law, it seems to me that you have to have a question about the knowing and voluntary waiver of a right. That is, have you waived something, and did you do that substantially induced by an agreement? In that event, you may have detrimental reliance, and you may be entitled to pursue a claim.
John Paul Stevens: See, detrimental reliance is not normally an element of waiver. That is merely intelligence and understanding the choices, and when you bring in the reliance, it strikes me that your analogy is really sort of an estoppel analogy.
Jerrold J. Ganzfried: Well, we keep changing tracks in terms of the legal vocabulary used here between the constitutional law analysis and the contract law analysis. I think the analogies are apt in this case, and generally when I use the term "detrimental reliance" it will be to refer to the waiver of a right induced by an agreement, and that raises questions as to the voluntary and knowing nature of that waiver. Now, those concerns--
Thurgood Marshall: Is there any doubt that this man did rely on it?
Jerrold J. Ganzfried: --There is... It is absolutely clear that this man did not rely on that?
Thurgood Marshall: That he didn't rely on that agreement?
Jerrold J. Ganzfried: Did not rely on the agreement. The District Court expressly found, the Court of Appeals agreed, he did absolutely nothing in reliance with this--
Thurgood Marshall: What did he do to show he didn't rely on it?
Jerrold J. Ganzfried: --He did nothing to show that he did rely on it.
Thurgood Marshall: Well, I mean, he didn't do anything, did he?
Jerrold J. Ganzfried: He did nothing. He told his lawyer, this sounds like a good deal, let's take it, and his lawyer got back to him and said, it has been withdrawn.
Thurgood Marshall: Now, if he had not gotten the deal, would he have done something?
Jerrold J. Ganzfried: If he had not gotten the deal?
Thurgood Marshall: Yes, sir.
Jerrold J. Ganzfried: He might have pleaded guilty to... He might have gone to trial.
Thurgood Marshall: He might have gone out to get some witnesses, too.
Jerrold J. Ganzfried: He might have done any number of things, but he did nothing.
Thurgood Marshall: I don't see how you assume that when a man gets an agreement with the state, he relies on it, then he has to show in addition that he was injured by it. That is my problem.
Jerrold J. Ganzfried: He would have to show some prejudice, but first he has to show--
Thurgood Marshall: What prejudice?
Jerrold J. Ganzfried: --Some... that there was some right that he was entitled to have that he has lost because of the agreement.
Thurgood Marshall: Some right? The right is to rely on the state.
Jerrold J. Ganzfried: Not when you have an agreement that is not finalized until a court accepts it. There was no justifiable reliance.
Thurgood Marshall: It has been made by a state official authorized to make-- --We have no quarrel with that, and frankly we have no quarrel with the proposition that prosecutors ought to keep their word and abide by their bargains, but the point in this case is whether the respondent has a constitutional entitlement to hold the prosecutor to what in effect is a slip of the tongue. And that depends--
Jerrold J. Ganzfried: In a situation where the defendant, of course, can back out at any time.
John Paul Stevens: --And that depends, as I understand your theory, on his showing that he is worse off than if the representation had never been made. Detrimental reliance. And you say he--
Jerrold J. Ganzfried: We don't have that here. There might be a case where you have some sort of detrimental reliance.
John Paul Stevens: --But the minimum showing is some detriment. He has been... He is worse off than if there had never been this tentative agreement. That is your whole... what I understand to be your position.
Jerrold J. Ganzfried: That is right. Now, ordinarily, even if he makes that showing--
John Paul Stevens: The same essential ingredient is in any estoppel case.
Jerrold J. Ganzfried: --Ordinarily, there is not going to be that showing unless he has a plea, unless he has cooperated with the authorities. Here we have none of those, and none of those concerns. What we have is a rule, a prophylactic rule laid down by the Court of Appeals keyed to the unilateral expectations of the respondent. Now, it seems to me that it would be the rare criminal defendant who doesn't hope for the best, whether it be a lenient plea agreement, an acquittal at trial, or a light sentence. The point is that he has no right to impose those transitory hopes, to make those transitory hopes binding on the state and the courts. This Court has held that a defendant has no right to plea bargain. He has no right to have a guilty plea accepted, and he has no right to know in advance what his sentence will be, a particularly important issue here, because until that plea is presented to the court and the bargain is presented to the court and it is accepted and sentence is passed--
Warren E. Burger: Did I understand you to say that the defendant could have withdrawn his plea at any time or his whatever you want to call it at any time until the judge had accepted it and acted on it?
Jerrold J. Ganzfried: --That's correct, and there may even be provision... I would have to check this... under Arkansas law similar to under federal law that would allow him to move to vacate the plea thereafter, but that is correct. There was nothing binding on the respondent. He had... even if he thought he still had an agreement after it was clearly communicated that it had been withdrawn, he could have walked away from it at any time, certainly at any time relevant to these proceedings.
Warren E. Burger: To the extent there is any reliance on the contract theory, then the contract theory would be that both are bound or neither is bound.
Jerrold J. Ganzfried: Well, there is no meeting of the minds, that there has been no performance, not even partial performance, and in fact there is no mutuality of obligation, because what the Court of Appeals has done is to impose an obligation only on the government, the prosecution, to abide by even what in this case is really a ludicrous slip of the tongue to suggest that there would be a sentence that would give him no additional jail time for a murder that he had been previously convicted of.
Sandra Day O'Connor: Mr. Ganzfried, I take it it would make no differences for purposes of your argument if the agreement had been reduced to writing by the parties.
Jerrold J. Ganzfried: That is correct. There would be no justifiable reliance until he waived a right, and then that was done because he was induced by the agreement.
Sandra Day O'Connor: Well, I suppose these written agreements, at least in some jurisdictions, purport to give up those rights on the signing of the agreement, although it still is subject sometimes to approval by the court.
Jerrold J. Ganzfried: Well, certainly in the federal courts, and in Arkansas as well, it is up to the court ultimately to decide whether that plea is acceptable and that bargain is acceptable. Now, under the rule of the Court of Appeals, what prosecutors are going to have to do to protect themselves is that they are going to have to possibly conduct all negotiations on the record, and as a result, they would remove much of the flexibility that now benefits defendants as well as the state. Another possibility is that plea proposals may be couched with so many contingencies that they are virtually meaningless. Another possibility is that negotiations will be delayed until so late in the process that the benefits of prompt disposition would be lost to prosecutors and defendants, because, after all, in Arkansas and presumably in the Eighth Circuit, the prosecutor is going to be concerned that a slip of the tongue may bind him to something that he never intended to say, and that the other side never took him... and relied on. Thank you.
Warren E. Burger: Very well. Mr. Quiggle.
Richard Quiggle: Mr. Chief Justice, and may it please the Court. I believe that the facts of this case do not warrant the broad ruling that the state seeks, that even if this Court finds that the Eighth Circuit's holding is broader than the Eighth Circuit perceived it to be, and therefore this Court decides to enter a very broad ruling, it should certainly not be that the state is allowed to play fast and loose with the bargaining process until it decides it has gotten the kind of penalty it wants.
Warren E. Burger: Do you agree with your friend that the defendant may withdraw at any time up to the time the Court acts on the plea and possibly even afterwards?
Richard Quiggle: I think that is true, Your Honor. I think that is one of the reasons that strict contract principles in this matter just do not apply. I think the government is held to a higher standard than the defendant might be, but that is not the facts of this case, either, Your Honor. The fact is, and I disagree sharply with the state when they argue that my client did not plead guilty. My client in fact pled guilty to twice as much as the original agreement called for, and I think it is absurd to think that he would not have pled if he had been allowed to do so to 21 years if he would plead guilty to 42.
Warren E. Burger: Do you mean twice as much in terms of adding the numbers--
Richard Quiggle: Yes.
Warren E. Burger: --without reference to whether they are consecutive or concurrent?
Richard Quiggle: That is... well, in fact, the bargain, Your Honor, that was finally struck was that it would be 21 years consecutive as opposed to 21 years concurrent. I also disagree when the state suggests that that would have resulted in no additional penalty to my client. He had already served under the original murder conviction two and a half years of the original sentence. Plus, even if he got a consecutive sentence... I mean, a concurrent sentence, it would not have started to run until it was actually entered by the court. Thus, effectively speaking, there would have been some additional penalty. Obviously, we can only go back and second guess as to whether that would have been adequate or been accepted by the trial court.
William H. Rehnquist: You agree, then, that the trial judge was the final arbiter?
Richard Quiggle: Absolutely, Your Honor.
William H. Rehnquist: Didn't the Eighth Circuit leave your client in a better position by its order than he would have been if the plea agreement had been accepted and the prosecutor had been forced to abide by the agreement? The Court of Appeals opinion says that not only must the prosecutor be deemed to have accepted the agreement, but the trial judge. How can you justify that?
Richard Quiggle: I think effectively speaking you are right, Your Honor. The Court cut through the judicial intervention that would have occurred had this case come up in the normal course of things. I believe that the Court of Appeals was simply acting in a very practical fashion. After all, my client had already served the enhanced sentence.
William H. Rehnquist: Well, but the Court of Appeals is applying constitutional principles. It has no business tinkering at all with Arkansas procedure unless there is some constitutional violation, and I understood its theory and I thought your theory was that the bargain, the plea agreement is specifically enforceable, but the Court of Appeals did more than specifically enforce the... it bound the trial judge to the plea agreement in a way that he would never have been bound under the terms of the agreement.
Richard Quiggle: I think that's correct.
William H. Rehnquist: Do you feel you could justify that in any way?
Richard Quiggle: Yes, Your Honor, I think I can, because this case, even the habeas case has been pending a long time, and these facts are very stale, and my client has already served the enhanced agreement. It would simply not be fair to my client to place him in the jeopardy of the trial court now perhaps rejecting that plea bargain.
William H. Rehnquist: That has nothing to do with the theory of your case, does it? I mean, it is just kind of throwing yourself on the mercy of the court.
Richard Quiggle: Well, I guess it is, in a sense, Your Honor, but of course I will say that this issue was not brought up to the Eighth Circuit, and therefore their opinion does not address it at all, and I am somewhat at a disadvantage to justify their thinking when I don't know that they ever thought it. I believe that--
William H. Rehnquist: Do you think they wrote it but they didn't think it?
Richard Quiggle: --Well, they did not address the issue of whether they can order specific performance and bypass what the trial judge might have done back in 1973, or actually '72, I'm sorry. And therefore I don't know what the rationale that they might... that the Eighth Circuit might have applied to it would be. I think it is, as I have expressed to you, that they found a constitutional violation, and they attempted to shape a remedy that seemed appropriate under the unique circumstances of this case.
William H. Rehnquist: Ordinarily one finds the rationale in the opinion.
Richard Quiggle: I agree, Your Honor, but that was not an issue that was addressed by the parties or the Eighth Circuit.
John Paul Stevens: Mr. Quiggle, under Arkansas practice, if the agreement had been... there had been no misunderstanding and no change, and had been submitted to the court, would there have been a recommendation by the prosecutor that that be entered?
Richard Quiggle: Absolutely, Your Honor, and the fact of the matter is, even unto this day trial courts in Arkansas routinely, if not... and consistently take those recommendations. It is rare that a court rejects one in Arkansas, and that was certainly true back when the plea would have been entered in this case had the government not reneged on its word. Unfortunately, the trial judge who would have heard this matter has been dead a number of years, so it would be impossible to go back to him, and the practice has shifted some. We have new rules of criminal procedure, and so forth. But practically speaking, had this gone before the trial judge, every expectation would have been that it would have been approved if a prosecutor recommended it, and that is, of course, a central point to what my position is. I am certainly not suggesting in the routine course of things that trial judges would be bound by what the prosecutor agrees to recommend. On the contrary, it is simply that the prosecutor has to stick by his word. The trial court can always reject it. And I don't perceive the Eighth Circuit... that's why I continue to make the point that I don't think this is a proper case for any kind of broad ruling, because it has got some screwy facts in it, and there is also the aspect of this case that I think makes it difficult... my position difficult here is that there is ineffectiveness proven in the record, and there is ineffectiveness claimed as to the trial counsel for not going forward to enforce the plea. He states in the hearing that there was simply nothing he could do. Now, I presume that a deputy prosecuting attorney knows the law, and Santobello had been decided several months at that point, but those issues were not reached by the Eighth Circuit, so I don't mean to rely on or press it on this Court heavily at this time, but the fact is, there is a lot of uncertainty built into this opinion, I believe, and therefore I don't think it's the kind of a case upon which a broad ruling should depend. If there is one, I just think it is that the prosecutor cannot make his word in a final sense, as here, where there was an offer that was clear on its face, and I disagree with the state when they say that it is really simple, it is really logical to figure out what happened here. If that is true, why didn't they put on any proof about that? They offered no witnesses at all in this case. None. The fact is, if one wants to speculate, which is all the state can do, about the prosecutor's motivations, I submit to you that it is equally logical and perhaps a lot more believable that this prosecutor meant exactly what he said when he offered 21 years concurrent, and the supervisor found out about it and overruled him, because the facts of this case, as are clearly seen from the Eighth Circuit's opinion, were shocking, where a father kills his own daughter. There was lots of press. The Court will recall there was a mistrial because of the press. After the plea was rejected there were collateral civil lawsuits filed in this matter, and I think the prosecutor was taking a lot of heat, and consequently he said no, we can't... we are going to have to get more time out of this guy, the deputy prosecutor's superior. And I think under the facts--
Thurgood Marshall: When was this told to the defendant?
Richard Quiggle: --Your Honor, I don't think it was for some months, until after the plea was rejected, because it was set down for a hearing that was continued, and then they came back and had the mistrial that I mentioned just a second ago, and I believe that it was not until they commenced that trial that my client, Mr. Johnson, knew that the original offer had been rejected.
Thurgood Marshall: There is nothing in the record about it one way or the other?
Richard Quiggle: It is not clear from the record, Your Honor, but I will say that the prosecutor, the deputy prosecutor who was assigned to the case after the plea was withdrawn by the state admitted that he did not contact Mr. Johnson until shortly before the time of the hearing where the mistrial occurred, and so I think presumably that encompasses the fact that he did not communicate the withdrawn plea. The facts are very specific about how the original offer was made, and I think that they would have been equally specific had this been communicated. I think if the Court does consider this matter in the broad sense that the state seeks, that it must give due consideration to the state's argument that the Sixth Amendment does not apply in situations like this, because I think clearly it does apply. I think that, for example, as a trial counsel in a criminal matter, if my client has admitted that he is guilty, and is ready to plead, I believe that that is going to have a profound impact upon that defendant if he then is forced to go to trial. It is certainly going to have a profound impact on me or any other criminal attorney if I have to put that man on the stand. I think it would be very difficult to do so. I think it places counsel in a very awkward ethical position, because probably he is going to have to take the stand and lie. Therefore, I think that the Court must be very cautious in waving aside the state's argument that... or my contention that the Sixth Amendment is very important in this case. The Eighth Circuit and the Fourth Circuit in the Cooper case certainly thought it was also.
Warren E. Burger: Well, in those circumstances, in terms of the impact, isn't the standard that you cannot assist him if you know he is testifying falsely?
Richard Quiggle: I certainly think in the instance where a defendant, as here, would have to take the stand in order to make their case, I believe that it does--
Warren E. Burger: Would it be any different before or after?
Richard Quiggle: --Well, Your Honor, I presume that before the defendant has not conceded his guilt to anyone, and in the face of these kinds of facts, in fact, the defendant has said, yes, I am guilty.
Warren E. Burger: Are you suggesting that that would be the first time that the defense counsel became aware of the reality?
Richard Quiggle: It certainly would probably be the first time under normal practice, I would think, Your Honor, that a defense counsel was told by the defendant literally, I am guilty. I would just like to say one more thing, and that is that I don't see the Eighth Circuit establishing a prophylactic rule here. I think the Eighth Circuit's decision was tailored only to the facts of this particular case, and it was very narrowly drawn, and therefore I don't believe that it impinges upon the criminal process in the way that the state perceives, but if it does, it should impinge such that the prosecution must deal honestly and fairly and abide by its word. Thank you.
Warren E. Burger: Very well. Do you have anything further, counsel?
John Steven Clark: No, no further comments.
Warren E. Burger: Thank you, gentlemen. The case is submitted.